[Federal Register Volume 84, Number 246 (Monday, December 23, 2019)]
[Rules and Regulations]
[Pages 70402-70410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27672]


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DEPARTMENT OF ENERGY

10 CFR Part 955

RIN 1903-AA11


Elemental Mercury Management and Storage Fees

AGENCY: Office of Environmental Management, U.S. Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy publishes a final rule to establish a 
fee for long-term management and storage of elemental mercury in 
accordance with the Mercury Export Ban Act.

DATES: This rule is effective January 22, 2020.

FOR FURTHER INFORMATION CONTACT: 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, 
Telephone: (202) 586-5000, Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Fee Basis
III. Response to Comments
IV. Regulatory Review
V. Approval of the Secretary of Energy

I. Background

    Section 5(a)(1) of the Mercury Export Ban Act, as amended (MEBA), 
42 U.S.C. 6939f(a)(1), provides that the Department of Energy (DOE) 
shall designate a facility for the purpose of long-term management and 
storage of elemental mercury generated within the United States.\1\ 
MEBA section 5(b)(1), 42 U.S.C. 6939f(b)(1), further provides that DOE 
shall assess and collect a fee at the time of delivery for providing 
such management and storage based on the pro rata cost of long-term 
management and storage of elemental mercury delivered to the facility. 
MEBA provides that the fee shall be made publicly available by October 
1, 2018. MEBA section 5(b)(1)(B)(i), 42 U.S.C. 6939f(b)(1)(B)(i). The 
fee may be adjusted annually and shall be set in an amount sufficient 
to cover costs described in MEBA section 5(b)(2), 42 U.S.C. 
6939f(b)(2), subject to certain adjustments. MEBA section 
5(b)(1)(B)(ii)-(iv), 42 U.S.C. 6939f(b)(1)(B)(ii)-(iv).
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    \1\ Elemental mercury stored at the facility will be classified 
as a hazardous waste under the Resource Conservation and Recovery 
Act and its implementing regulations. MEBA Section 3 prohibits the 
sale, distribution or transfer of elemental mercury stored by DOE, 
and MEBA Sections 5(d)(1) and 5(g)(2)(B) require that the elemental 
mercury be stored at facilities having permits to manage RCRA 
hazardous waste (with the exception of waste elemental mercury 
generated by certain generators, and which is destined for the long-
term storage facility as allowed by 42 U.S.C. 6939f(g)(2)(D)). Based 
on the description of elemental mercury that is destined for and 
stored at the DOE long-term storage facility, the RCRA hazardous 
waste code U151 applies (see 40 CFR 261.33).
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    In accordance with MEBA section 5(b), 42 U.S.C. 6939f(b), DOE 
establishes this fee after consultation with persons who are likely to 
deliver elemental mercury to a designated facility, and with other 
interested persons. DOE convened teleconferences from May 2017 through 
July 2019 and held a meeting on August 1-2, 2018, in Washington, DC, to 
discuss considerations for the basis of the fee for long-term 
management and storage of elemental mercury including length of time in 
storage, the cost of eventual treatment and disposal technology, and 
different operational scenarios. Participants included representatives 
of generators producing elemental mercury incidentally from the 
beneficiation or processing of ore, or related pollution control 
activities. DOE also consulted with members of the Environmental 
Technology Council, a private organization whose members include 
persons likely to deliver elemental mercury to the designated DOE 
storage facility, on January 23, 2019.
    The proposed rule would have established the fee for long-term 
management and storage of elemental mercury at the designated DOE 
storage facility as $55,100 per metric ton (MT),\2\ plus a receiving 
charge of $3,250 per shipment. In response to comments received 
regarding the proposed rule, DOE has adjusted the fee downward to 
$37,000 per MT. In accordance with MEBA section 5(b)(1)(B)(ii), 42 
U.S.C. 6939f(b)(1)(B)(ii), this fee may be adjusted annually according 
to the factors described in Section II, Discussion of Fee Basis.
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    \2\ One metric ton is 2,204.62 lbs.
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II. Discussion of Fee Basis

    The fee per metric ton is the sum of (1) the net present value of 
elementary mercury storage for fifteen years using the 15-year real 
interest rate from Office of Management and Budget (OMB) Circular A-94; 
(2) the pro-rated cost of materials required for storage of elemental 
mercury; (3) the present value of the cost of transporting elemental 
mercury from the storage facility to a treatment facility in the 
sixteenth year using the 15-year real interest rate from OMB Circular 
A-94; and (4) the present value of the cost of treatment and disposal 
in the sixteenth year using the 15-year real interest rate from OMB 
Circular A-94. While there is no current regulatory framework to treat 
and dispose of elemental mercury in the U.S., DOE is assuming a 
scenario in which there is treatment and disposal capacity for high-
concentration elemental mercury waste in the future.
    In accordance with 42 U.S.C. 6939f(b)(1)(B), because the designated 
facility was not operational on January 1, 2019, DOE will adjust the 
fee adopted in this final rule and assessed for elemental mercury 
delivered to the designated facility to subtract the cost of the 
temporary accumulation for those generators accumulating elemental 
mercury in a facility pursuant to 42 U.S.C. 6939f(g)(2)(B) and (D)(iv) 
during the period in which the designated facility is not operational. 
The subtraction will occur after receipt and approval of invoices 
outlining acceptable costs.
    In accordance with 42 U.S.C. 6939f(b)(1)(B)(ii), DOE may adjust the 
fee annually. As stated in the proposed rule, DOE will adjust the fee 
by

[[Page 70403]]

adjusting the parameters used in calculating the fee. If this 
adjustment results in a significant adjustment of the fee, DOE will 
provide an opportunity for public participation. The parameters subject 
to adjustment are as follows:
     Number of years that elemental mercury will reside in 
storage at the DOE designated facility.
     Cost to store 1 MT of elemental mercury for the number of 
years that elemental mercury will reside in storage at the DOE 
designated facility.
     Pro-rated cost of materials required for storage of 
elemental mercury.
     Cost of transportation from the elemental mercury storage 
facility to a treatment facility.
     Cost of treatment of elemental mercury, and disposal of 
the treated waste form.
     Real interest rate from OMB Circular A-94.
    The breakdown of the storage cost per metric ton is given by the 
following table:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Year                        Receipt       Management         Lease         Oversight       State tax        Removal          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................         $570.00         $300.84         $300.84         $117.17  ..............  ..............       $1,288.85
2-15....................................  ..............          300.84          300.84           60.17         $120.34  ..............          782.18
16......................................  ..............  ..............  ..............  ..............          120.34        $9570.00          690.34
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    The cost of storage from the table above is $12,900. The net 
present value of this total, using the 15-year real interest rate from 
OMB Circular A-94 (1.45%), is $11,500. DOE has used 6 hours of labor at 
$95/hour for receipt of each metric ton of elemental mercury for 
unloading from transportation vehicles, verifying compliance with waste 
acceptance criteria, logging receipt and placement in storage. Storage 
costs are $300.84/MT-year for management, and DOE has allocated 
$30,234.42 lease costs across an initial contracted inventory of 1,206 
MT, resulting in $300.84/MT in lease costs. State taxes are computed at 
20% beginning 1 year after incurring the management and lease expense. 
Oversight expenses are computed at 10% of total annual costs for 
monitoring of program performance and performing audit functions to 
assure integrity of the waste acceptance process. Finally, DOE has used 
6 hours of labor at $95/hour for removal of elemental mercury from 
racks, logging shipment and placing on transportation vehicles awaiting 
shipment to a treatment facility. DOE has allocated the cost of 
acquiring racks and other required materials for storage across an 
initial contracted inventory of 1,206 MT, resulting in a per metric ton 
cost for materials of $200/MT. Adding the cost per metric ton of 
materials to the net present value of the table above results in a 
total cost of storage of $11,700/MT.
    The present value of the cost of transportation in the sixteenth 
year using the 15-year real interest rate from OMB Circular A-94 
(1.45%) is $800. The current year cost basis is $1,000, assuming 
approximately 1,800 miles traveled.
    The present value of the cost of treatment and disposal of 
elemental mercury in the sixteenth year using the 15-year real interest 
rate from OMB Circular A-94 (1.45%) is $24,500.
    The resulting fee per metric ton is given by the following table:

Storage cost............................................         $11,700
Transportation cost.....................................             800
Treatment and disposal cost.............................          24,500
                                                         ---------------
    Total...............................................          37,000
 

III. Response to Comments

    DOE published the proposed rule to establish the fee for the 
management and storage of elemental mercury on October 4, 2019. (84 FR 
53066). DOE received comments from interested parties that are 
available at the following link https://www.regulations.gov/docket?D=DOE-HQ-2019-0037. DOE responds to the comments received on the 
proposal in this section, including changes made to reduce the proposed 
fee that were made in response to those comments.
    Comment: DOE must withdraw the proposed rule.
    Response: As discussed in the paragraphs that follow, DOE has 
addressed the comments received on the proposed rule that form the 
basis for the commenters' withdrawal request and has revised it 
accordingly. As a result, DOE declines to withdraw the proposed rule.
    Comment: DOE failed to provide information in an accompanying 
administrative record that would allow sufficient public review of the 
proposed rule.
    Response: As required by the Mercury Export Ban Act, as amended 
(MEBA), DOE consulted with persons likely to deliver elemental mercury 
to the designated facility on the fee prior to publication of the 
proposed rule. Beginning in 2016, DOE contacted the operators of 
facilities that had made the certification provided for in 42 U.S.C. 
6939f(g)(2)(B) to collect information on elemental mercury storage and 
who was using the storage. This led representatives of the Department 
to reach out to members of the mining community and to the Nevada 
Mining Association.
    Consultation took the form of meetings and teleconferences, from 
May 2017 through July 2019, with representatives from Newmont Mining 
Corporation, Barrick Gold Corporation, Coeur Rochester, Inc., and 
members of the Environmental Technology Council, some of which had made 
the certification provided for in 42 U.S.C. 6939f(g)(2)(B) and were 
storing elemental mercury for clients until the DOE facility opens.\3\
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    \3\ DOE also notes that it held an ex parte meeting with 
Environmental Technology Council (ETC) members on November 21, 2019. 
At this meeting, ETC members expressed their concerns with the 
rulemaking. The ex parte meeting has been included in the record for 
this rulemaking and is available at https://www.energy.gov/gc/legal-resources/ex-parte-communications.
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    As noted by commenters, DOE engaged in extensive discussions with 
stakeholders. During these discussions, the basis for the fee 
calculation (i.e., storage for an unspecified, but limited, time 
followed by treatment and disposal at another location) was presented. 
Stakeholders provided information to DOE that was evaluated as part of 
development of the proposed rule. DOE shared its concerns with some of 
the scenarios suggested by stakeholders during consultation.
    In developing the proposed fee and the fee established in this 
final rule, with respect to storage costs, DOE used source selection 
sensitive information in accordance with Federal Acquisition Regulation 
(FAR) 2.101 and FAR 3.104 and is not approved for release to the 
public. DOE received information on preliminary pricing for treatment 
and disposal that it determined was business confidential information. 
DOE estimated expected pricing for treatment and disposal using 
publicly available pricing for similar treatment and disposal in 
accordance with the DOE Cost Estimating Guide (DOE-G-413.3-21) and 
found a reasonable expected price range of $24,000/MT to $34,600/MT. 
Since the preliminary pricing fell within

[[Page 70404]]

the expected cost range, DOE has adopted $30,900/MT as the cost of 
treatment and disposal. DOE used information provided during the 
consultation process as the basis for an estimate for the costs to 
transport elemental mercury from the storage facility to a future 
treatment facility. DOE used publicly available information from OMB 
Circular A-94 as a source for relevant interest rates.
    Given the level of consultation and engagement with persons likely 
to deliver elemental mercury to the facility, as well as, the 
straightforward fee basis, DOE believes sufficient information was 
provided to allow the public to meaningfully comment on the proposed 
rule and to support the fee established in this final rule.
    Comment: DOE failed to consider alternatives to the scenario 
presented in the proposed rule, including scenarios presented during 
consultation.
    Response: During consultation, DOE discussed and considered 
scenarios suggested by the meeting participants. These discussions 
included the scenario that ultimately became the basis for the proposed 
fee.
    The scenarios discussed included indefinite storage (including 
storage at Hawthorne Army Depot (HWAD)), and storage for a relatively 
short period of time until a regulatory framework for treatment and 
disposal in the U.S. becomes available, and subsequent treatment and 
disposal in the United States.
    Commenters indicated that storage at HWAD is significantly less 
expensive than the basis for the proposed rule. On multiple occasions 
since MEBA was passed DOE discussed the use of HWAD for storage of 
elemental mercury with the Department of Defense (DoD), including as 
recently as December 2018 and January 2019. During these discussions 
DOE and DoD noted that 10 U.S.C. 2692 generally prohibits the storage 
of non-defense toxic and hazardous materials. The Secretary of Defense 
may grant exceptions to this prohibition when essential to protect the 
health and safety of the public from imminent danger if the Secretary 
otherwise determines the exception is essential, and if the storage or 
disposal authorized does not compete with private enterprise. However, 
neither of these conditions can be met because elemental mercury is 
currently being stored safely at privately owned facilities that made 
the certification provided for in 42 U.S.C. 6939f(g)(2)(B), and DOE has 
evaluated reasonable alternative locations for storage of elemental 
mercury.
    Comment: The use of a leased facility is not permitted under MEBA.
    Response: The phrase ``facility or facilities of [DOE]'' is not 
defined in MEBA. DOE operates at both DOE-owned and -leased facilities, 
and DOE has construed the term ``DOE facility'' to refer to an 
assortment of ownership and lease relationships. MEBA Section 5(f) 
authorizes DOE to establish such terms, conditions, and procedures as 
are necessary to carry out MEBA Section 5. As noted in the Long-Term 
Management and Storage of Elemental Mercury Environmental Impact 
Statement (EIS) at page 1-3 fn. 2, DOE has interpreted MEBA Section 5 
to authorize DOE to designate existing and/or new storage facilities at 
property owned or leased by DOE.
    Comment: DOE has included costs in the fee basis that are not 
recoverable under MEBA.
    Response: MEBA section 5(b)(1)(B)(iii), 42 U.S.C. 
6939f(b)(1)(B)(iii), provides that fees shall be set in an amount 
sufficient to cover costs set forth in MEBA section 5(b)(2), 42 U.S.C. 
6939f(b)(2). Such costs are costs to DOE of providing management and 
storage, including operation and maintenance, security, monitoring, 
reporting, personnel, administration, inspections, training, fire 
suppression, closure, and other costs required for compliance with 
applicable law.
    In accordance with MEBA, the costs associated with land acquisition 
or permitting of the facility under the Solid Waste Disposal Act or 
other applicable law are not recoverable. The DOE lease agreement for 
elemental mercury storage only includes a leasehold interest in the 
portion of the buildings used only; therefore, the lease arrangement 
does not qualify as land acquisition. DOE has received a cost estimate 
of necessary permit modifications but has not included them in the fee 
basis. No building design or construction costs have been incurred and 
included in the basis for the fee calculation.
    In summary, DOE did not include any non-recoverable costs in the 
basis for the proposed fee. In addition, DOE plans to fulfill its 
elemental mercury storage mission by hiring a contractor to operate the 
facility; therefore, DOE believes the inclusion of contractors' profit 
is a recoverable cost under MEBA.
    Comment: DOE failed to consult with persons likely to deliver 
elemental mercury as required by MEBA. DOE should provide summaries of 
the meetings and teleconferences.
    Response: As required by MEBA, DOE consulted with persons likely to 
deliver elemental mercury to the designated facility on the fee prior 
to publication of the proposed rule. This included meetings and 
teleconferences conducted between May 2017 and July 2019 with persons 
representing Newmont Mining Corporation, Barrick Gold Corporation, and 
Coeur Rochester, Inc., and members of the Environmental Technology 
Council, some of which had made the certification provided for in 42 
U.S.C. 6939f(g)(2)(B) and are storing elemental mercury for clients 
until the DOE facility opens.
    During consultation, DOE discussed and considered scenarios 
suggested by the meeting participants. These discussions included the 
scenario that ultimately became the basis for the proposed fee.
    The scenarios discussed included indefinite storage (including 
storage at Hawthorne Army Depot (HWAD)), and storage for a relatively 
short period of time until a regulatory framework for treatment and 
disposal in the U.S. becomes available, and subsequent treatment and 
disposal in the United States.
    As noted above, DOE evaluated the use of HWAD with DoD. During 
consultation, DOE kept participants informed of the results of its 
investigations.
    During a meeting in Washington, DC, on January 23, 2019, DOE 
presented information to members of the Environmental Technology 
Council (ETC), some of which had made the certification provided for in 
42 U.S.C. 6939f(g)(2)(B) and are storing elemental mercury for clients 
until the DOE facility opens. Additionally, DOE spoke with a 
representative of ETC on multiple occasions to apprise ETC of the 
status of preparing the proposed rule and the development of the fee 
basis.
    DOE also has maintained a dialog with appropriate personnel from 
the Nevada Department of Environmental Protection and the Texas 
Commission on Environmental Quality during the development of the 
proposed rule.
    DOE believes the level of outreach and consultation that the agency 
engaged in meets the requirements of MEBA. DOE provided further 
opportunities for input from interested parties and the public through 
publication of the proposed rule and solicitation of comments.
    Comment: DOE provided insufficient time for the public to comment 
on the proposed rule and should extend the public comment period.
    Response: Given the extensive discussions with stakeholders, the 
straightforward fee basis, and the fact that the proposed fee was based 
on a scenario discussed multiple times

[[Page 70405]]

during the consultations, DOE did not believe extension of the public 
comment period was necessary.
    Comment: DOE failed to consider less expensive options.
    Response: DOE based the proposed fee on information received from a 
U.S. vendor in response to a solicitation in preparing the proposed 
rule. In 2017, DOE compared the response to the price for elemental 
mercury storage by companies engaged in elemental mercury storage that 
had made certifications in accordance with 42 U.S.C. 6939f(g)(2)(B). 
Among those companies that responded, the only company that provided 
specific pricing information indicated $1,200/MT-year was their price 
for this service. This price information was confirmed by stakeholders 
that are users of these facilities during consultation. In 2019, DOE 
also reviewed the responses to a Request for Expressions of Interest 
received from multiple potential offerors before the solicitation was 
issued. This led DOE to the conclusion that a reasonable market price 
for storage of elemental mercury was in a range of approximately 
$1,000/MT-year to $2,200/MT-year. Since the average annual cost of 
storage in the scenario used as the basis for the fee is $780/MT, DOE 
considers this basis to represent a cost-efficient approach.
    Several comments were received suggesting that the price for 
storage should be more on the order of $80/MT-year, some suggesting 
that this is the cost of storage at HWAD. HWAD storage of elemental 
mercury is not subject to the Resource Conservation and Recovery Act 
(RCRA), nor is it required to accept shipments from sources as varied 
as those expected at the DOE designated facility. DOE is unable to 
verify the components of the suggested HWAD costs in order to 
appropriately make a direct comparison to HWAD.
    DOE contacted DoD regarding the possibility of using HWAD as the 
DOE facility for long-term management and storage of elemental mercury 
and found that, in accordance with 10 U.S.C. 2692, the facility was 
prohibited from accepting non-defense related hazardous waste. As 
discussed in response to an earlier comment, to waive the prohibition, 
two conditions must be met: (1) There must be an imminent danger to 
public health and safety; and (2) the storage must not compete with 
private enterprise. Since neither of these conditions could be met, DOE 
determined that use of HWAD as the DOE facility for long-term 
management and storage of elemental mercury was not viable.
    DOE has not proposed to treat elemental mercury in the United 
States and dispose of the resulting mercury compound in Canada. DOE 
notes, however, that treatment of elemental mercury in the United 
States and subsequent disposal of the resulting mercury compound in 
Canada is an option for generators of elemental mercury.
    Comment: DOE is using an escalation rate for storage costs that is 
too high.
    Response: DOE has revised the fee basis to use discounted funds and 
has eliminated the escalation rate used in the proposed rule. 
Consistent with discussions with participants during consultation, OMB 
Circular A-94 rates are used. The fee basis has been revised using the 
15-year real rate from OMB Circular A-94 (1.45%).
    Comment: DOE should have used discount rates rather than escalating 
all costs.
    Response: DOE has revised the calculation of the proposed fee to 
use discounted funds and has eliminated the escalation rate used in the 
proposed rule. The resulting fee basis has been reduced from $55,100 
per MT plus a receiving charge of $3,250 per shipment, to $37,000 per 
MT.
    Comment: DOE failed to provide an explanation for the receiving 
charge.
    Response: The receiving charge is the cost of purchasing required 
materials, unloading the elemental mercury from the truck, moving it to 
its storage location, checking compliance with the Waste Acceptance 
Criteria and logging the shipment.
    In response to comments received on the proposed fee, DOE has 
revised the fee basis to allocate the receiving charge on a per MT 
basis. As a result, the additional per shipment charge has been 
deleted.
    Comment: DOE failed to provide an explanation for the removal 
charge.
    Response: The removal charge is the cost of removing elemental 
mercury from storage, loading it onto a truck and logging the shipment. 
This charge is allocated on a per MT basis.
    Comment: DOE failed to provide an explanation for the 
transportation cost.
    Response: As described in the preamble of the proposed rule, the 
transportation cost is the cost to transport elemental mercury accepted 
for storage at the DOE facility to an assumed treatment facility after 
the storage period.
    During consultation, DOE learned that generators of elemental 
mercury in Nevada were paying approximately $1,000 for a shipment of up 
to 15 MT of elemental mercury from Nevada to Alabama for storage. DOE 
assumed a similar mileage of approximately 1,800 miles for shipment 
from the DOE designated storage facility to a future treatment 
facility. The mileage is based on transportation from Andrews County, 
TX to Hellertown, PA. DOE considered Hellertown, PA to be a reasonable 
hypothetical location for treatment of elemental mercury prior to 
eventual disposal.
    The fee has been revised to reflect payment of $1,000 for 
transportation in year 16 using discounted funds (now, $800/MT).
    Comment: DOE failed to provide an explanation for the treatment and 
disposal cost.
    Response: DOE is assuming a treatment and disposal technology 
similar to that which is currently available for disposal in Canada 
(i.e., conversion to red mercury sulfide and disposal in a regulated 
landfill).
    DOE has kept apprised of developments in the private sector 
associated with the development of treatment and disposal technologies 
and adjusted the fee basis accordingly. As described in the proposed 
rule, the pricing is based on preliminary pricing from a U.S. vendor 
and DOE is treating the source as business sensitive. DOE compared the 
preliminary pricing to treatment and disposal in Canada, making 
appropriate adjustments using the guidance from the DOE Cost Estimating 
Guide (DOE-G-413.3-21) for a Class 2 cost estimate and found that the 
preliminary pricing fell within the range for such an estimate. DOE 
noted that the technical approach under consideration includes 
additional encapsulation relative to the currently available disposal 
in Canada and that no current actions to gain regulatory approval are 
in progress.
    This is included only as a cost basis for an assumed treatment and 
disposal capability in the U.S. at some future date. It does not imply 
a commitment on the part of the Environmental Protection Agency (EPA) 
to promulgate a regulatory framework for treatment and disposal.
    Comment: Why did DOE not consider disposal in Canada?
    Response: MEBA directs DOE to designate a facility for long-term 
management and storage of elemental mercury generated within the United 
States. DOE notes, however, that treatment of elemental mercury in the 
United States and subsequent disposal of the resulting mercury compound 
in Canada is an option for generators of elemental mercury.
    Comment: The proposed fee is too high.

[[Page 70406]]

    Response: DOE based the proposed fee on information received from a 
U.S. vendor in response to a solicitation in preparing the proposed 
rule. DOE reviewed the response and compared it to market information 
provided by companies engaged in elemental mercury storage that had 
made certifications in accordance with 42 U.S.C. 6939f(g)(2)(B). This 
price information was confirmed by stakeholders that are users of these 
facilities during consultation. In 2019, DOE also reviewed the 
responses to a Request for Expressions of Interest received from 
multiple potential offerors before the solicitation was issued. This 
led DOE to the conclusion that a reasonable market price for storage of 
elemental mercury was in a range of $1,000/MT-year to $2,200/MT-year.
    The receiving charge is the cost of purchasing required materials, 
unloading the elemental mercury from the truck, moving it to its 
storage location, checking compliance with the Waste Acceptance 
Criteria and logging the shipment.
    In response to comments received on the proposed fee, DOE has 
revised the fee basis to properly allocate the receiving charge on a 
per MT basis. As a result, the additional per shipment charge has been 
deleted.
    The removal charge is the cost of removing elemental mercury from 
storage, loading it onto a truck and logging the shipment. This charge 
is allocated on a per MT basis.
    During consultation, DOE learned that generators of elemental 
mercury in Nevada were paying approximately $1,000 for a shipment of up 
to 15 MT of elemental mercury from Nevada to Alabama for storage. DOE 
assumed a similar mileage of approximately 1,800 miles for shipment 
from the DOE designated storage facility to a future treatment 
facility. The mileage is based on transportation from Andrews County, 
TX to Hellertown, PA. DOE considered Hellertown, PA to be a reasonably 
hypothetical location for treatment of elemental mercury prior to 
eventual disposal.
    The fee has been revised to reflect payment of $1,000 for 
transportation in year 16 using discounted funds (now, $800/MT). DOE 
has kept apprised of developments in the private sector associated with 
the development of treatment and disposal technologies and adjusted the 
basis accordingly. As described in the proposed rule, the pricing is 
based on preliminary pricing from a U.S. vendor and DOE is treating the 
source as business sensitive. DOE compared the preliminary pricing to 
treatment and disposal in Canada, making appropriate adjustments using 
the guidance from the DOE Cost Estimating Guide (DOE-G-413.3-21) for a 
Class 2 cost estimate and found that the preliminary pricing fell 
within the range for such an estimate. DOE noted that the technical 
approach under consideration includes additional encapsulation relative 
to the currently available disposal in Canada and that no current 
actions to gain regulatory approval are in progress. DOE has also 
revised the calculation of the proposed fee to use discounted funds. 
The resulting fee basis has been reduced from $55,100 per MT plus a 
receiving charge of $3,250 per shipment, to $37,000 per MT. The cost 
breakdown is given by the following schedule:

------------------------------------------------------------------------
                       Description                             Cost
------------------------------------------------------------------------
Net present value (NPV) of Total Storage Cost of 15              $11,700
 years of storage @15-year real rate (1.45%)--includes
 per metric ton materials cost..........................
Present value (PV) of Transportation cost ($1,000) in                800
 year 15 @15-year real rate (1.45%).....................
PV of Treatment and Disposal cost ($30,900) in year 15            24,500
 @15-year real rate (1.45%).............................
                                                         ---------------
    Total Fee/MT (rounded to nearest $).................          37,000
------------------------------------------------------------------------

    Comment: Why is DOE using 15 years of storage as a basis for the 
fee?
    Response: MEBA requires DOE to designate and operate a facility or 
facilities for the long-term management and storage of elemental 
mercury per 42 U.S.C. 6939f. Under the Resource Conservation and 
Recovery Act, EPA is responsible for promulgating regulations for 
storage, treatment, and disposal of elemental mercury (and other 
mercury wastes) in the United States. Currently no treatment standard 
exists or has been proposed that would allow land disposal of high-
purity elemental mercury waste, waste mercury compounds, or other high-
concentration mercury wastes. Although it is reasonable to assume that 
this situation may change in the future--as reflected by DOE's estimate 
of 15 years of storage--it does not imply a commitment on the part of 
EPA to promulgate a regulatory framework for treatment and disposal. 
Following consultations with EPA, DOE selected 15 years of storage in 
recognition of DOE's and EPA's respective roles. DOE believes this 
amount of time is reasonable given the uncertainty associated with the 
timing of establishing a regulatory framework for the treatment and 
disposal of high-purity elemental mercury.
    Comment: Will there be any other costs at a future time?
    Response: Once the fee has been paid and the elemental mercury has 
been accepted, there will be no other costs imposed on generators.
    Comment: Will DOE take ownership of the elemental mercury received?
    Response: MEBA directs DOE to take custody of elemental mercury 
delivered to the facility for long-term management and storage of 
elemental mercury and to hold harmless, defend and provide 
indemnification to persons who deliver elemental mercury to the 
facility. Once the fee has been paid and the elemental mercury is 
accepted at the facility, DOE assumes responsibility for its storage 
and disposition.
    Comment: Will there be an opportunity for public participation for 
future fee increases?
    Response: As provided for by MEBA, DOE may adjust the fee annually. 
If this adjustment results in a significant alteration of the fee, DOE 
will provide an opportunity for public participation. The parameters 
that are subject to adjustment, as revised in response to public 
comments, are as follows:
     Number of years that elemental mercury will reside in 
storage at the DOE designated facility.
     Cost to store 1 MT of elemental mercury for the number of 
years that elemental mercury will reside in storage at the DOE 
designated facility.
     Pro-rated cost of materials required for storage of 
elemental mercury
     Cost of shipment from the elemental mercury storage 
facility to a treatment facility.
     Cost of treatment of elemental mercury, and disposal of 
the treated waste form.
     Real interest rate from OMB Circular A-94.
    Comment: Why does elemental mercury delivered to the DOE facility 
need to be 99.5% pure?

[[Page 70407]]

    Response: The requirement for 99.5% purity is consistent with the 
guidance published by DOE in 2009 and has been chosen based on the need 
to store the elemental mercury for an indefinite period. As noted in 
the Long-Term Management and Storage of Elemental Mercury EIS at page 
2-1 fn. 3, the treatment standard for wastes containing high 
concentrations of mercury (greater than 260 parts per million) is 
recovery through roasting or retorting, which is performed at various 
commercial waste recovery facilities. This process yields high-purity 
elemental mercury (e.g., elemental mercury that is at least 99.5 
percent pure by volume) that is generally acceptable for reintroduction 
back into commerce and is analogous to the materials to be stored in a 
DOE designated storage facility.
    Comment: The Supplement Analysis (SA) notes that Waste Control 
Specialists (WCS) existing buildings will have to be redesigned, even 
though no new buildings will have to be built. Again, such costs cannot 
be included in the fee proposal.
    Response: The Supplement Analysis EIS-0423-SA-01 makes no such 
statement.
    The WCS facility is permitted to receive elemental mercury 
currently and no structural upgrades are anticipated. Consequently, no 
design or construction costs are included in the fee basis for the 
proposed fee.
    Comment: Will the receiving charge be reduced for shipments under 
15 MT?
    Response: DOE has revised the fee basis to allocate the receiving 
charge on a per MT basis. As a result, the additional per shipment 
charge has been deleted.
    Comment: The facility should have been designated/proposed prior to 
publishing the proposed fee.
    Response: DOE acknowledges that the language of MEBA envisions 
designation of a facility prior to the establishment of the fee. DOE 
has designated a facility for long-term management and storage of 
elemental mercury since publication of the proposed rule.
    Comment: DOE should consider investing funds in non-U.S. securities 
for a better return.
    Response: MEBA requires DOE to asses and collect the fee, but it 
does not authorize DOE to retain fee proceeds and invest or otherwise 
use them. Absent a DOE authority to retain the funds, they will be 
deposited in the Treasury pursuant to 31 U.S.C. 3302 (Miscellaneous 
Receipts Act).
    Comment: If costs end up lower than the fee basis, will there be a 
rebate?
    Response: DOE will not provide rebates if the actual costs end up 
lower than the fee basis. Similarly, if costs end up higher than the 
fee basis, DOE will not invoice generators that have previously 
delivered elemental mercury to the DOE designated facility for such 
additional costs.
    Comment: Will DOE petition EPA to change the RCRA standard to allow 
treatment and disposal in U.S.?
    Response: This comment is outside the scope of the rulemaking to 
establish a fee for the long-term management and storage of elemental 
mercury.
    Comment: Mercury collected from recycling should not be subject to 
fees.
    Response: MEBA directs DOE to assess and collect a fee at the time 
of delivery of elemental mercury to the facility for long-term 
management and storage of such elemental mercury. MEBA does not include 
exceptions for elemental mercury collected from recycling.
    Comment: Mercury collected from recycling should not be defined as 
hazardous waste.
    Response: This comment is outside the scope of the rulemaking to 
establish a fee for the long-term management and storage of elemental 
mercury.
    Comment: The proposed fee will substantially reduce recycling.
    Response: MEBA directs DOE to conduct a study, in consultation with 
EPA, on the impact of the long-term management and storage program for 
elemental mercury on mercury recycling, and include proposals, if 
necessary, to mitigate any negative impacts. DOE continues to gather 
empirical information to assess these impacts.
    Comment: The proposed fee will promote exportation of elemental 
mercury.
    Response: To export elemental mercury, a person must petition the 
Administrator of EPA, who may grant an exemption provided that the 
conditions of 15 U.S.C. 2611 (c)(4)(A)(i)-(vii) are met. To date EPA 
has not granted any exemptions under this part of the MEBA (for more 
information, see: https://www.epa.gov/mercury/questions-and-answers-mercury-export-ban-act-meba-2008).
    DOE has not received any information to suggest the proposed fee 
will result in a significant increase in such petitions.
    Comment: Landfilling of mercury is not condoned.
    Response: For purposes of estimating the fee, DOE has assumed a 
scenario in which elemental mercury is disposed in a regulated landfill 
following treatment by conversion to red mercury sulfide. This method 
of treatment of elemental mercury and subsequent disposal of the 
resulting mercury compound is used safely in Canada.
    Although there is no current regulatory framework that allows this 
practice in the U.S., in order to establish a fee basis, as required by 
MEBA, DOE considered it reasonable to assume that such a framework may 
exist in the future.
    Comment: What happens after 15 years?
    Response: The fee was calculated estimating 15 years of storage 
followed by treatment and disposal. DOE acknowledges that in the 
absence of a regulatory framework for such treatment and disposal, 
elemental mercury in storage at the DOE facility would continue to be 
stored beyond 15 years.
    Comment: What about Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) liability?
    Response: MEBA directs DOE to take custody of elemental mercury 
delivered to the facility for long-term management and storage of 
elemental mercury and to hold harmless, defend and provide 
indemnification to persons who deliver elemental mercury to the 
facility.
    Comment: What are the acceptance criteria at the DOE facility for 
long-term management and storage of elemental mercury?
    Response: The Waste Acceptance Criteria (DOE/EM-0007) is available 
at https://www.energy.gov/sites/prod/files/2019/12/f69/Waste-Acceptance-Criteria-Final-12-12-2018.pdf.
    Comment: DOE failed to consider the environmental impact of the 
fee.
    Response: The EIS evaluated seven government and commercial sites 
and the supplemental environmental impact statement (SEIS) evaluated 
additional alternatives for a facility at and in the vicinity of the 
Waste Isolation Pilot Plant (WIPP) for long-term management and storage 
of elemental mercury. The EIS and SEIS noted the relevant statutory 
provision regarding assessment and collection of a fee. The assessment 
and collection of the fee is part of the implementation of the proposed 
action. Elemental mercury that is not delivered to the long-term 
management and storage site would continue to be managed and stored by 
the current holder of the elemental mercury. While DOE cannot determine 
which specific elemental mercury would continue to be managed by the 
current holder at a given fee basis, such elemental mercury would have 
impacts similar to those analyzed under the no action alternative in 
the EIS and SEIS.

[[Page 70408]]

    Comment: The Council on Environmental Quality (CEQ) regulations 
require cost-benefit analyses to be appended to or incorporated into an 
EIS because they are relevant to the choices among environmentally 
different alternatives.
    Response: CEQ National Environmental Policy Act (NEPA) Regulations 
(40 CFR 1502.23) require that a cost-benefit analysis be incorporated 
by reference or appended only ``[i]f a cost-benefit analysis relevant 
to the choice among environmentally different alternatives is being 
considered for the proposed action.'' As discussed in the Record of 
Decision, DOE's decision was ``[b]ased on consideration of the analysis 
in the Final Elemental Mercury Storage EIS, SEIS, and recently prepared 
SA'' and ``on other programmatic, policy, logistic, and cost 
considerations.''
    Comment: The EIS/SEIS/SA did not discuss potential environmental 
impacts of treatment and disposal of elemental mercury, or of 
transportation of elemental mercury for treatment and disposal.
    Response: DOE has not proposed to treat and dispose of elemental 
mercury, or to transport elemental mercury for treatment and disposal. 
Thus, DOE has not analyzed the potential environmental impacts of such 
a proposal. Nonetheless, DOE has used treatment, disposal, and related 
transportation costs to calculate the fee for long-term elemental 
mercury management and storage. Although commenters have provided 
feedback regarding the components of a fee calculation based on this 
scenario, comments have not supported basing the fee on indefinite 
storage of elemental mercury.

IV. Regulatory Review

A. Review Under Executive Order 12866

    This final rule has been determined not to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993), as amended by Executive 
Order 13258, 67 FR 9385 (February 26, 2002). Accordingly, this action 
was not subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget.

B. Review Under the National Environmental Policy Act

    In accordance with the National Environmental Policy Act (NEPA) of 
1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality 
regulations and the DOE regulations implementing NEPA, DOE prepared the 
following documents analyzing the potential environmental impacts of 
long-term management and storage of elemental mercury: Long-Term 
Management and Storage of Elemental Mercury Environmental Impact 
Statement (DOE/EIS-0423, January 2011); Long-Term Management and 
Storage of Elemental Mercury Supplemental Environmental Impact 
Statement (DOE/EIS-0423-S1, September 2013); and Supplement Analysis of 
the Final Long-Term Management and Storage of Elemental Mercury 
Environmental Impact Statement (DOE/EIS-423-SA-01). The environmental 
impact statement (and the supplemental environmental impact statement) 
noted the relevant statutory provision regarding assessment and 
collection of a fee. The assessment and collection of the fee is part 
of the implementation of the action.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
website: https://www.energy.gov/sites/prod/files/gcprod/documents/eo13272.pdf.
    DOE has reviewed this rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. For the reasons explained below, DOE has determined that this 
rule, if adopted, will not have a significant economic impact on a 
substantial number of small entities.
    In 2019, DOE published Supplement Analysis of the Final Long-Term 
Management and Storage of Elemental Mercury Environmental Impact 
Statement (DOE/EIS-423-SA-01) that updated the expected inventory 
during the next 40 years to 6,800 MT. DOE expects approximately 35-50 
entities to pay the fee established in this final rule. DOE expects 
that the majority of the fees paid will be paid by less than 10 of 
these entities. The Nevada Mining Association (NMA) membership includes 
the generators of elemental mercury that are expected to deliver the 
majority of elemental mercury to the DOE facility. DOE contacted NMA 
for information to help determine how many of its membership qualify as 
small entities under NAICS codes 212221 (Gold ore mining, 1500 
employees), 212222 (Silver ore mining, 250 employees), 212230 (Copper, 
nickel, lead and zinc mining, 750 employees) and 212299 (All other 
metal ore mining, 750 employees). The information received showed that 
there are 31 entities that fall below the small business standards 
versus 2 entities that exceeded the standard. DOE estimates that the 
largest impact would be to entities engaged in mining that do not 
qualify as small entities under NAICS codes. This impact will vary 
based on ore grade and price fluctuations in the precious metals 
market.
    Some entities that have either accepted elemental mercury for 
storage, in accordance with 42 U.S.C. 6939f(g)(2)(B) or have placed 
elemental mercury in storage in accordance with 42 U.S.C. 
6939f(g)(2)(B) or (D), awaiting the start of operation at the DOE 
facility will be required to pay the fee for storage at the DOE site. 
These entities would be classified under the NAICS codes in the 
previous paragraph or NAICS code 562112 (Hazardous Waste Collection, 
$41.5M). The largest of these impacts are likely be a one-time expense 
shortly after the start of operations at the DOE facility. DOE 
determined, however, that none of these entities are likely to be small 
entities.
    As a result of MEBA, with the exception of elemental mercury that 
has been placed in storage in accordance with 42 U.S.C. 6939f(g)(2)(B) 
or (D), generators of elemental mercury can either send elemental 
mercury that is being discarded to the DOE designated facility for 
long- term management and storage, or treat the elemental mercury to 
form a mercury compound and then export the mercury compound for 
environmentally sound disposal in accordance with 15 U.S.C. 
2611(c)(7)(A)-(B) and (D). Export of mercury compounds for 
environmentally sound disposal in another country may also be subject 
to that country's obligations under the Basel Convention, if 
applicable, and that country's applicable domestic laws and 
regulations. While international sales generally are prohibited by 
MEBA's export ban, 42 U.S.C. 2611(c)(1), non-Federal generators may 
also consider

[[Page 70409]]

domestic sales of elemental mercury.\4\ Although domestic sale of 
elemental mercury is an option without a negative economic impact, it 
is likely that the supply would exceed demand and thus that option may 
not be viable for some non-Federal generators. As stated above, for 
those non-Federal generators for whom sale is not a viable option, the 
available options are sending the elemental mercury to the DOE 
designated facility or environmentally sound disposal of certain 
mercury compounds in accordance with 15 U.S.C. 2611(c)(7)(D). Treatment 
and disposal is available at a cost of approximately $26,500 (USD) per 
metric ton in Canada, for example, and generators can choose this 
option if it is more cost effective for them.
---------------------------------------------------------------------------

    \4\ MEBA provides that ``no Federal agency shall convey, sell, 
or distribute . . . any elemental mercury under the control or 
jurisdiction of the Federal agency.'' 15 U.S.C. 2605(f). MEBA 
provides an exception for ``a transfer between Federal agencies of 
elemental mercury under the control or jurisdiction of the Federal 
agency.'' Id. at 15 U.S.C. 2605(f)(2)(A).
---------------------------------------------------------------------------

    Because DOE has determined that entities currently storing 
elemental mercury who will be required to pay the fee established by 
DOE for storage in the DOE facility are not likely to be small 
entities, and because those entities not required to pay the fee 
established by DOE for storage in the DOE facility can choose another 
disposal option if that option is more cost effective for them, DOE has 
determined that this rule does not have a significant economic impact 
on a substantial number of small entities.
    DOE's certification and supporting statement of factual basis was 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b). The Department did not 
receive any comments on the certification and has responded to comments 
regarding the economic impacts of the rule in Section III of this final 
rule.

D. Review Under the Paperwork Reduction Act

    This rulemaking would impose no new information or recordkeeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Review Under the Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written assessment of the 
effects of any Federal mandate in a proposed or final agency regulation 
that may result in the expenditure by States, tribal or local 
governments, in the aggregate, or by the private sector, of $100 
million in any one year. The Act also requires Federal agencies to 
develop an effective process to permit timely input by elected 
officials of State, tribal, or local governments on a proposed 
significant intergovernmental mandate, and requires an agency plan for 
giving notice and opportunity to provide timely input to potentially 
affected small governments before establishing any requirements that 
might significantly or uniquely affect small governments. DOE has 
determined that this rule does not contain any Federal mandates 
exceeding $100 million in any one year affecting States, tribal, or 
local governments, or the private sector, and, thus, no assessment or 
analysis is required under the Unfunded Mandates Reform Act of 1995.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' 61 FR 4779 (February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. With regard to the review required 
by section 3(a), section 3(b) of Executive Order 12988, specifically 
requires that Federal agencies make every reasonable effort to ensure 
that the regulation: (1) Clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting the clarity and general 
draftsmanship under guidelines issued by the Attorney General. Section 
3(c) of Executive Order 12988 requires executive agencies to review 
regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or it is unreasonable to 
meet one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law, this rule meets the 
relevant standards of Executive Order 12988.

G. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10, 
1999) imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. (65 FR 13735). DOE has examined this rule and has 
determined that it would not preempt State law and would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibility among the various levels of government. No further 
action is required by Executive Order 13132.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. This rule would have no impact on the autonomy or integrity 
of the family as an institution. Accordingly, DOE has concluded that it 
is not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use,'' 66 FR 
28355 (May 22, 2001) requires preparation and submission to OMB of a 
Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgated or is expected to lead to

[[Page 70410]]

promulgation of a final rule, and that: (1)(i) Is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (2) is designated by the 
Administrator of OIRA as a significant energy action. For any 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
DOE has determined that this rule would not have a significant adverse 
effect on the supply, distribution, or use of energy. The Administrator 
of OIRA has also not determined that this rule is a significant energy 
action. Thus, the requirement to prepare a Statement of Energy Effects 
does not apply.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most dissemination of 
information to the public under guidelines established by each agency 
pursuant to general guidelines issued by OMB. OMB guidelines were 
published at 67 FR 8452 (Feb. 22, 2002), and DOE guidelines were 
published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this rule 
under the OMB and DOE guidelines and has concluded that it is 
consistent with applicable policies in those guidelines.

K. Review Under Executive Orders 13771

    This rule is not subject to the requirements of E.O. 13771 (82 FR 
9339, February 3, 2017) because this rule is considered to be a 
``transfer rule.''

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is a ``major rule'' as 
defined by 5 U.S.C. 804(2).

V. Approval of the Secretary of Energy

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 955

    Elemental mercury, Hazardous waste treatment, storage, and 
disposal, Reporting and recordkeeping requirements.

    Signed in Washington, DC, on December 18, 2019.
Paul M. Dabbar,
Under Secretary for Science.

0
For the reasons set forth in the preamble, the Department of Energy 
adds part 955 to title 10 of the Code of Federal Regulations to read as 
follows:

PART 955--FEE FOR LONG-TERM MANAGEMENT AND STORAGE OF ELEMENTAL 
MERCURY UNDER THE MERCURY EXPORT BAN ACT OF 2008, AS AMENDED

Sec.
955.1 Purpose.
955.2 Scope and applicability.
955.3 Definitions.
955.4 Payment of fees.
955.5 Schedule of fees.

    Authority: 42 U.S.C. 6939f(b).


Sec.  955.1  Purpose.

    This part establishes a fee for long-term management and storage of 
elemental mercury in accordance with the Mercury Export Ban Act of 
2008, as amended, section 5(b), (42 U.S.C. 6939f(b)).


Sec.  955.2  Scope and applicability.

    This part applies to persons who deliver elemental mercury to the 
U.S. Department of Energy (DOE) designated facility for long-term 
management and storage.


Sec.  955.3  Definitions.

    The following definitions are provided for purposes of this part:
    DOE means the U.S. Department of Energy.
    Elemental mercury means the element with the chemical symbol Hg and 
atomic number 80 in its liquid form. The form acceptable to DOE is at 
least 99.5% elemental mercury by volume. DOE will not accept elemental 
mercury in environmental media or consumer products (fluorescent lamps, 
batteries, etc.) or elemental mercury in manufactured items 
(manometers, thermometers, switches, etc.).
    Metric ton means 1,000 kilograms (approximately 2,204 lbs.).


Sec.  955.4  Payment of fees.

    Fees are payable upon delivery of elemental mercury to the DOE 
facility. All fee payments are to be made payable to the U.S. 
Department of Energy. The payments are to be made in U.S. funds by 
electronic funds transfer such as ACH (Automated Clearing House) using 
E.D.I. (Electronic Data Interchange), check, draft, money order, or 
credit card.


Sec.  955.5  Schedule of fees.

    (a) Persons delivering elemental mercury to the DOE facility for 
long-term management and storage of elemental mercury shall pay fees in 
accordance with paragraph (b) of this section.
    (b) The fee per metric ton is the sum of:
    (1) The net present value of elementary mercury storage for the 
number of years in storage using the appropriate interest rate from 
Office of Management and Budget (OMB) Circular A-94;
    (2) The pro-rated cost of materials required for storage of 
elemental mercury;
    (3) The present value of the cost of transporting elemental mercury 
from the storage facility to a treatment facility in the year following 
the last year of storage using the appropriate interest rate from OMB 
Circular A-94; and
    (4) The present value of the cost of treatment and disposal in the 
year following the last year of storage using the appropriate interest 
rate from OMB Circular A-94.
    (c) The values in paragraphs (b)(1) through (4) of this section may 
be updated annually. These values are posted to the DOE Long-Term 
Management and Storage of Elemental Mercury website (https://www.energy.gov/em/services/waste-management/waste-and-materials-disposition-information/long-term-management-and). DOE will publish 
notice in the Federal Register when the values are updated to inform 
the public of the updates.

[FR Doc. 2019-27672 Filed 12-20-19; 8:45 am]
 BILLING CODE 6450-01-P