[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Notices]
[Pages 63105-63107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22020]



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DEPARTMENT OF ENERGY


Amended Record of Decision for the Long-Term Management and 
Storage of Elemental Mercury

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

ACTION: Amended record of decision.

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SUMMARY: The U.S. Department of Energy (DOE) is issuing this Amended 
Record of Decision (AROD) to amend its Record of Decision (ROD) for the 
long-term management and storage of elemental mercury published in the 
Federal Register on December 6, 2019. This AROD withdraws the 
designation of Waste Control Specialists (WCS) pursuant to the Mercury 
Export Ban Act of 2008 (MEBA) as the DOE facility for long-term 
management and storage of elemental mercury. DOE has, however, decided 
to store at WCS certain elemental mercury to which DOE accepts the 
conveyance of title pursuant to a legal settlement or proceeding.

ADDRESSES: For electronic copies of this Amended Record of Decision, 
the December 6, 2019 Record of Decision, the Long-Term Management and 
Storage of Elemental Mercury Environmental Impact Statement (DOE/EIS-
0423), the Long-Term Management and Storage of Elemental Mercury 
Supplemental Environmental Impact Statement (DOE/EIS-0423-S1), and the 
Supplement Analysis of the Final Long-Term Management and Storage of 
Elemental Mercury Environmental Impact Statement (DOE/EIS-0423-SA-01), 
please go to the following website: https://www.energy.gov/nepa/nepa-documents. For paper copies, please contact Dave Haught at U.S. 
Department of Energy, Office of Environmental Management, Office of 
Waste Disposal (EM-4.22), 1000 Independence Avenue SW, Washington, DC 
20585 or at [email protected].

FOR FURTHER INFORMATION CONTACT: For further information on the 
management and storage of elemental mercury, please contact Dave Haught 
at [email protected] or visit https://www.energy.gov/em/services/waste-management/waste-and-materials-disposition-information/long-term-management-and. For general information on the Office of Environmental 
Management's National Environmental Policy Act of 1969 process, please 
contact Bill Ostrum, at [email protected] and at (202) 586-
2513.

SUPPLEMENTARY INFORMATION: 

Background

    Pursuant to Section 5(a)(1) of the Mercury Export Ban Act of 2008 
(Pub. L. 110-414), as amended by the Frank R. Lautenberg Chemical 
Safety for the 21st Century Act, (Pub. L. 114-182) (herein referred to 
as MEBA) (42 U.S.C. 6939f(a)(1)), the U.S. Department of Energy (DOE) 
was directed to designate a facility or facilities of DOE for the long-
term management and storage of elemental mercury generated within the 
United States.
    On January 28, 2011, DOE published a Notice of Availability in the 
Federal Register (76 FR 5145) to notify the public of the issuance of 
the Final Long-Term Management and Storage of Elemental Mercury 
Environmental Impact Statement (DOE/EIS-0423) (Final Elemental Mercury 
Storage EIS). In addition to the No Action Alternative, the Final 
Elemental Mercury Storage EIS evaluated eight locations at seven 
government and commercial sites for management and storage of elemental 
mercury: The DOE Grand Junction Disposal Site, Grand Junction, 
Colorado; the DOE Hanford Site, Richland, Washington; the Hawthorne 
Army Depot, Hawthorne, Nevada; the Idaho Nuclear Technology and 
Engineering Center and the Radioactive Waste Management Complex at the 
DOE Idaho National Laboratory, Idaho Falls, Idaho; the DOE Kansas City 
Plant, Kansas City, Missouri; the DOE Savannah River Site, Aiken, South 
Carolina; and the Waste Control Specialists, LLC (WCS) facility, near 
Andrews, Texas. The Final Elemental Mercury Storage EIS identified the 
WCS facility as its preferred alternative.
    On October 4, 2013, the Environmental Protection Agency (EPA) 
published a Notice of Availability in the Federal Register (78 FR 
61844) to notify the public of DOE's issuance of the Final Long-Term 
Management and Storage of Elemental Mercury Supplemental Environmental 
Impact Statement (DOE/EIS-0423-S1; Final SEIS). The Final SEIS 
evaluated additional alternatives for a facility at and in the vicinity 
of the Waste Isolation Pilot Plant near Carlsbad, New Mexico, and 
updated some of the analyses presented in the Final Elemental Mercury 
Storage EIS. The Final SEIS did not change the DOE preferred 
alternative, which remained as the WCS facility near Andrews, Texas.
    On June 5, 2019, DOE published a Supplement Analysis of the Final 
Long-Term Management and Storage of Elemental Mercury Environmental 
Impact Statement (DOE/EIS-0423-SA-01; SA) to determine whether 
supplemental or new National Environmental Policy Act of 1969 (NEPA) 
documentation was required to address the proposal to manage and store 
elemental mercury. The SA provided an analysis of the potential impacts 
presented in the Final Elemental Mercury Storage EIS and Final SEIS to 
determine if there have been substantial changes to the proposal since 
2013 or if there are significant new circumstances or information 
relevant to environmental concerns. The SA was prepared in accordance 
with the DOE NEPA implementing procedures at 10 CFR 1021.314(c) and 
concluded that there was not a substantial change to the proposal 
evaluated in the Final Elemental Mercury Storage EIS or Final SEIS or 
significant new circumstances or information relevant to environmental 
concerns that would require preparation of an additional SEIS or new 
EIS. DOE determined that no further NEPA analysis was required.
    Section 5(a)(1) of MEBA directs DOE to designate a facility or 
facilities of DOE for the long-term management and storage of elemental 
mercury generated within the United States. As stated in the Final 
Elemental Mercury Storage EIS, DOE proposed to construct one or more 
new facilities and/or select one or more existing facilities (including 
modification as needed) for the long-term management and storage of 
elemental mercury, as required by Section 5(a)(1) of MEBA. In the Final 
Elemental Mercury Storage EIS, DOE identified a need to provide such a 
facility capable of managing an elemental mercury inventory estimated 
to range up to 10,000 metric tons (11,000 tons) for a 40-year period of 
analysis. In the SA, DOE updated the projected inventory of elemental 
mercury to 6,800 metric tons (7,480 tons). Any such facility must 
comply with applicable requirements of the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 
6901 et seq.) and other permitting requirements, except as otherwise 
provided by Section 5(g)(2) of MEBA.
    On December 6, 2019, DOE published the ROD in the Federal Register 
(84 FR 66890). Based on consideration of the analyses in the Final 
Elemental Mercury Storage EIS, Final SEIS, and SA, DOE decided in the 
ROD to designate the WCS site near Andrews, Texas, as a DOE facility 
for management and storage of up to 6,800 metric tons (7,480 tons) of 
elemental mercury pursuant to Section 5(a)(1) of MEBA, and to manage 
and store the elemental mercury in leased portions of existing 
buildings, the

[[Page 63106]]

Container Storage Building and Bin Storage Unit 1, at the WCS site. 
This decision was also based on other programmatic, policy, logistic, 
and cost considerations.
    On December 10, 2019, DOE issued a task order for a lease and 
services agreement with WCS for the storage space. The lease was signed 
by DOE and WCS on December 13, 2019, and expires on June 4, 2021.
    On December 23, 2019, DOE published in the Federal Register a final 
rule to establish a fee for long-term management and storage of 
elemental mercury in accordance with MEBA (Fee Rule) (84 FR 70402). 
Section 5(b)(1)(A) of MEBA provides that DOE shall assess and collect a 
fee at the time of delivery for providing such management and storage 
of elemental mercury delivered to the facility.
    On December 27, 2019, DOE announced that the Texas Commission on 
Environmental Quality (TCEQ) had approved an application for a 
modification to the WCS hazardous waste permit. The permit modification 
added DOE as co-operator for compartments 6, 7, 8, and 9 of the 
Container Storage Building for the storage of elemental mercury in 
recognition of its status as a DOE designated facility under MEBA. 
DOE's December 27, 2019, announcement also stated that DOE had entered 
into a lease and services agreement with WCS for management and storage 
of elemental mercury, and that entities wishing to deliver elemental 
mercury to the DOE-designated facility for long-term management and 
storage should contact WCS.
    Two domestic generators of elemental mercury subsequently filed 
complaints in United States District Court challenging, among other 
things, the validity of the Fee Rule and the ROD designating the WCS 
site as a DOE facility for the long-term management and storage of 
elemental mercury (Coeur Rochester, Inc. v. Brouillette et al., Case 
No. 1:19-cv-03860-RJL (D.D.C. filed December 31, 2019)); Nevada Gold 
Mines LLC v. Brouillette et al., Case No. 1:20-cv-00141-RJL (D.D.C 
filed January 17, 2020)).
    On August 21, 2020, DOE and Nevada Gold Mines, LLC (NGM) executed a 
settlement agreement intended to resolve NGM's complaint in its 
entirety. As the first step in implementing that agreement, on 
September 3, 2020, DOE filed a motion in the District Court asking the 
Court to vacate and remand the Fee Rule.
    In the motion, DOE acknowledged that it made errors, omissions, and 
unclear statements in the Fee Rule. In order to address these legal 
issues, DOE requested that the Court vacate and remand the Rule to the 
Department for reconsideration. The District Court granted the motion 
to vacate and remand the Fee Rule on September 5, 2020.
    On remand, the Department will engage in notice-and-comment 
rulemaking to reconsider the estimates and assumptions used to 
calculate the fee, obtain updated information, and disclose the 
documentation necessary to facilitate review and comment by interested 
parties. The Department will conduct the rulemaking consistent with all 
applicable laws, Executive Orders, and other rulemaking requirements, 
and consider comments and information received in developing the final 
rule to establish the fee.
    MEBA Section 5(b)(1)(A) requires DOE to assess and collect a fee at 
the time that elemental mercury is delivered to the long-term 
management and storage facility designated under MEBA Section 5(a)(1). 
In light of the vacatur and remand of the Fee Rule, DOE is presently 
unable to accept elemental mercury from generators at a facility of the 
Department of Energy for long-term management and storage. See MEBA 
Sections 5(a)(1) and 5(b)(1)(A).
    Given the rulemaking process required to establish a fee for the 
long term management and storage of elemental mercury, and the 
expiration of DOE's current lease with WCS in June 2021, DOE also 
agreed in the settlement with NGM to withdraw the designation of WCS 
pursuant to MEBA Section 5(a)(1) as a facility of DOE for the purpose 
of long-term management and storage of elemental mercury. DOE 
acknowledges that MEBA's temporary storage provisions remain in effect 
until such time as DOE designates a facility or facilities of the 
Department of Energy for long-term management and storage of elemental 
mercury, and is able to accept elemental mercury shipments at such 
facility or facilities.\1\ At the appropriate time and consistent with 
the relevant factors set forth in MEBA, DOE will designate a facility 
or facilities of the Department of Energy for the purpose of long-term 
management and storage of elemental mercury generated within the United 
States.
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    \1\ Specifically, pursuant to MEBA Section 5(g), elemental 
mercury stored consistent with MEBA Sections 5(g)(2)(B) or (D) shall 
not be subject to the storage prohibition of section 3004(j) of the 
Solid Waste Disposal Act (42 U.S.C. 6924(j)) until such time as DOE 
(1) designates a facility or facilities of the Department of Energy 
for long-term management and storage of elemental mercury under MEBA 
Section 5(a)(1); and (2) is able to accept elemental mercury 
shipments at such facility or facilities.
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    Section 5(b)(1)(C) of MEBA provides that if the facility designated 
by DOE for long-term management and storage of elemental mercury is not 
operational by January 1, 2020, then DOE shall accept the conveyance of 
title to elemental mercury produced incidentally from the beneficiation 
or processing of ore or related pollution control activities that has 
accumulated at certain facilities in accordance with Section 5(g)(2)(D) 
of MEBA. Section 5(b)(1)(C) of MEBA also provides that DOE shall store 
or pay the cost of storage of such accumulated elemental mercury in a 
facility that has been permitted under RCRA. This storage requirement 
is separate from the requirement under Section 5(a)(1) of MEBA that DOE 
designate a facility or facilities of DOE for the long-term management 
and storage of elemental mercury generated within the United States. 
Under the settlement agreement with NGM, DOE agreed to accept title to 
and store 112 metric tons of elemental mercury that is currently in 
temporary storage at NGM facilities in accordance with Section 
5(g)(2)(D) of MEBA.
    On September 17, 2020, TCEQ issued a permit modification to the WCS 
hazardous waste permit that authorizes the storage of elemental mercury 
to which DOE accepts the conveyance of title pursuant to a legal 
settlement or proceeding. The WCS site thus possesses a RCRA permit 
for, and is capable of, storing elemental mercury to which DOE accepts 
the conveyance of title pursuant to a legal settlement or proceeding.

Amended Decision

    This AROD reflects DOE's need to revisit the December 23, 2019, (84 
FR 70402) final rule establishing a fee for the long-term management 
and storage of elemental mercury in accordance with MEBA (Fee Rule). 
This AROD also reflects that both the Fee Rule and DOE's decision to 
designate WCS as a DOE facility for the long-term management and 
storage of elemental mercury are the subjects of a settlement agreement 
between DOE and Nevada Gold Mines, LLC.
    The potential environmental impacts of this AROD were analyzed in 
the Final Long-Term Management and Storage of Elemental Mercury 
Environmental Impact Statement (DOE/EIS-0423; Final Elemental Mercury 
Storage EIS), the Final Long-Term Management and Storage of Elemental 
Mercury Supplemental Environmental Impact Statement (DOE/EIS-0423-S1; 
Final SEIS), and the Supplement Analysis of the Final Long-Term 
Management and

[[Page 63107]]

Storage of Elemental Mercury Environmental Impact Statement (DOE/EIS-
0423-SA-01; SA). The December 6, 2019, ROD announced DOE's decision to 
designate existing buildings at WCS near Andrews, Texas, as a DOE 
facility for the purpose of long-term management and storage of up to 
6,800 metric tons (7,480 tons) of elemental mercury generated within 
the United States pursuant to Section 5(a)(1) of the Mercury Export Ban 
Act of 2008 (Pub. L. 110-414), as amended by the Frank R. Lautenberg 
Chemical Safety for the 21st Century Act, (Pub. L. 114-182) (MEBA) (42 
U.S.C. 6939f(a)(1)).
    DOE has decided to withdraw the designation of WCS as a DOE 
facility for the long-term management and storage of elemental mercury 
generated within the United States pursuant to Section 5(a)(1) of MEBA. 
Therefore, as of the date of this AROD, DOE has not designated a DOE 
facility for the management and storage of elemental mercury generated 
within the United States pursuant to MEBA Section 5(a)(1). DOE is 
presently unable to accept elemental mercury from generators at a 
facility of the Department of Energy for long-term management and 
storage. See MEBA Sections 5(a)(1) and 5(b)(1)(A). DOE acknowledges 
that MEBA's temporary storage provisions remain in effect until such 
time as DOE designates a facility or facilities of the Department of 
Energy for long-term management and storage of elemental mercury, and 
is able to accept elemental mercury shipments at such facility or 
facilities.\2\
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    \2\ Specifically, pursuant to MEBA Section 5(g), elemental 
mercury stored consistent with MEBA Sections 5(g)(2)(B) or (D) shall 
not be subject to the storage prohibition of section 3004(j) of the 
Solid Waste Disposal Act (42 U.S.C. 6924(j)) until such time as DOE 
(1) designates a facility or facilities of the Department of Energy 
for long-term management and storage of elemental mercury under MEBA 
Section 5(a)(1); and (2) is able to accept elemental mercury 
shipments at such facility or facilities.
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    At the appropriate time and consistent with the relevant factors 
set forth in MEBA, DOE will designate a facility or facilities of the 
Department of Energy for the purpose of long-term management and 
storage of elemental mercury generated within the United States 
pursuant to MEBA Section 5(a)(1).
    Based on consideration of the analyses in the EIS, Final SEIS, and 
SA, DOE has decided to store elemental mercury to which DOE accepts the 
conveyance of title pursuant to a legal settlement or proceeding at WCS 
pursuant to MEBA Section 5(b)(1)(C). As noted in the Background 
section, in December 2019, DOE entered into a lease and services 
agreement with WCS to store up to 1,206 MT of elemental mercury in 
leased potions of the Container Storage Building and Bin Storage Unit 1 
at the WCS site. Also in December 2019, the TCEQ approved an 
application for a modification to the WCS hazardous waste permit that 
added DOE as co-operator for compartments 6, 7, 8, and 9 of the 
Container Storage Building for the storage of elemental mercury. On 
September 17, 2020, TCEQ approved a permit modification to the WCS 
hazardous waste permit that authorizes the storage of elemental mercury 
to which DOE accepts the conveyance of title pursuant to a legal 
settlement or proceeding.

Signing Authority

    This document of the Department of Energy was signed on September 
30, 2020, by William I. White, Senior Advisor for Environmental 
Management to the Under Secretary for Science, Office of Environmental 
Management, pursuant to delegated authority from the Secretary of 
Energy. That document with the original signature and date is 
maintained by DOE. For administrative purposes only, and in compliance 
with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of the Department of Energy. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

    Signed at Washington DC, on October 1, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2020-22020 Filed 10-5-20; 8:45 am]
BILLING CODE 6450-01-P