[Federal Register Volume 86, Number 98 (Monday, May 24, 2021)]
[Notices]
[Pages 27838-27841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10905]


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DEPARTMENT OF ENERGY


Notice of Intent To Prepare a Supplemental Environmental Impact 
Statement for the Long-Term Management and Storage of Elemental Mercury

AGENCY: Office of Environmental Management, Department of Energy.

ACTION: Notice of intent.

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SUMMARY: As required by the Mercury Export Ban Act of 2008, as amended 
(MEBA), the U.S. Department of Energy (DOE) must identify a facility or 
facilities for the long-term management and storage of elemental 
mercury generated within the United States. To this end, DOE intends to 
prepare a supplemental environmental impact statement (DOE/EIS-0423-S2; 
SEIS-II) to supplement both the January 2011

[[Page 27839]]

Environmental Impact Statement for the Long-Term Management and Storage 
of Elemental Mercury (DOE/EIS-0423; 2011 Mercury Storage EIS) and the 
September 2013 Supplemental Environmental Impact Statement for the 
Long-Term Management and Storage of Elemental Mercury (DOE/EIS-0423-S1; 
2013 Mercury Storage SEIS) by updating these previous analyses of 
potential environmental impacts and analyzing additional alternatives, 
in accordance with the National Environmental Policy Act (NEPA).

ADDRESSES: Questions concerning the SEIS-II development or requests to 
be placed on the SEIS-II distribution list can be sent to: Mrs. Julia 
Donkin, NEPA Document Manager, Office of Environmental Management, U.S. 
Department of Energy, EM-4.22, 1000 Independence Avenue SW, Washington, 
DC 20585, [email protected] or (202) 586-5000. Questions 
related to DOE's elemental mercury program should be directed to Mr. 
David Haught, Mercury Program Manager, Office of Environmental 
Management, U.S. Department of Energy, EM-4.22, 1000 Independence 
Avenue SW, Washington, DC 20585, [email protected] or (202) 586-
5000.

FOR FURTHER INFORMATION CONTACT: Additional information regarding the 
SEIS-II, the 2011 Mercury Storage EIS, 2013 Mercury Storage SEIS, other 
related documents, and the scope of DOE's elemental mercury program is 
available online at https://www.energy.gov/nepa/doeeis-0423-long-term-management-and-storage-elemental-mercury. For general information 
concerning DOE's Office of Environmental Management NEPA process, 
please contact Mr. William Ostrum, Office of Environmental Management 
NEPA Compliance Officer, U.S. Department of Energy, EM-4.31, 1000 
Independence Avenue SW, Washington, DC 20585, [email protected] 
or (202) 586-2513.

SUPPLEMENTARY INFORMATION:

Background

    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), amends the Toxic Substances Control Act (TSCA; 15 
U.S.C. 2601-2629) to prohibit the sale, distribution, or transfer by 
Federal agencies to any other Federal agency, any state or local 
government agency, or any private individual or entity, of any 
elemental mercury under the control or jurisdiction of a Federal agency 
(with certain limited exceptions). MEBA also amends TSCA to prohibit 
the export of elemental mercury from the United States (with certain 
limited exceptions). Section 5 of MEBA, ``Long-Term Storage'' (42 
U.S.C. 6939f), is codified with the Resource Conservation and Recovery 
Act (RCRA; 42 U.S.C. 6901 et seq.) and directs DOE to designate a 
facility or facilities for the long-term management and storage of 
elemental mercury generated within the United States. MEBA also 
requires DOE to assess a fee based upon the pro rata costs of long-term 
management and storage of elemental mercury delivered to the facility 
or facilities.
    The primary sources of elemental mercury in the United States 
include elemental mercury generated as a byproduct of the gold mining 
process and mercury reclaimed from recycling and waste recovery 
activities. In addition, DOE's National Nuclear Security Administration 
(NNSA) stores approximately 1,200 metric tons of elemental mercury at 
the Oak Ridge Reservation in Tennessee, which was generated in support 
of NNSA's mission.
    The 2011 Mercury Storage EIS evaluated seven candidate locations 
for the elemental mercury storage facility, as well as a No Action 
Alternative. The locations included new facility construction, use of 
existing facilities, or both. The candidate locations were: DOE Grand 
Junction Disposal site near Grand Junction, Colorado (new 
construction); DOE Hanford Site near Richland, Washington (new 
construction); Hawthorne Army Depot near Hawthorne, Nevada (existing 
facility); DOE Idaho National Laboratory near Idaho Falls, Idaho (new 
construction and existing facility); Bannister Federal Complex in 
Kansas City, Missouri (existing facility); DOE Savannah River Site near 
Aiken, South Carolina (new construction); and the Waste Control 
Specialists LLC (WCS) site near Andrews, Texas (new construction and 
existing facility).
    The 2013 Mercury Storage SEIS evaluated three additional 
alternative locations, at and in the vicinity of the Waste Isolation 
Pilot Plant near Carlsbad, New Mexico (all new construction). The 2013 
Mercury Storage SEIS also updated the analysis of the alternatives 
presented in the 2011 Mercury Storage EIS.
    For the 2011 Mercury Storage EIS and the 2013 Mercury Storage SEIS, 
DOE estimated that up to approximately 10,000 metric tons of elemental 
mercury would need to be managed and stored at the DOE facility during 
the 40-year period of analysis.
    On December 6, 2019, DOE issued a Record of Decision (ROD) to 
document its designation of the WCS site near Andrews, Texas, for the 
management and storage of up to 6,800 metric tons of elemental mercury 
in leased portions of existing buildings, the Container Storage 
Building and Bin Storage Unit 1, at the WCS site (84 FR 66890). The ROD 
was supported by DOE's Supplement Analysis of the Final Long-Term 
Management and Storage of Elemental Mercury Environmental Impact 
Statement (DOE/EIS-0423-SA-1), which determined that the long-term 
management and storage of up to 6,800 metric tons of elemental mercury 
in existing buildings at the WCS facility would not constitute a 
substantial change from the proposal evaluated in the 2011 Mercury 
Storage EIS and updated in the 2013 Mercury Storage SEIS. On December 
23, 2019, DOE published a final rule to establish the fee for long-term 
management and storage of elemental mercury (84 FR 70402; Fee Rule).
    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 (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. 
Consistent with that agreement, on September 3, 2020, DOE filed a 
motion in the District Court asking the Court to vacate and remand the 
Fee Rule. The District Court granted the motion to vacate and remand 
the Fee Rule on September 5, 2020. 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 subsequently withdrew the designation of WCS under MEBA in 
an amended ROD on October 6, 2020 (85 FR 63105). The District Court 
granted a joint stipulation to dismiss the litigation from Coeur 
Rochester, Inc. on April 23, 2021.

[[Page 27840]]

Purpose and Need for Action

    DOE must designate a facility for the long-term management and 
storage of elemental mercury generated within the United States, as 
required by MEBA. MEBA also requires DOE to assess and collect a fee to 
cover certain costs of long-term management and storage of elemental 
mercury.
    MEBA establishes that by January 1, 2019, a DOE-designated facility 
shall be operational and accept custody, for the purpose of long-term 
management and storage, of elemental mercury generated within the 
United States. Fiscal Year 2021 Appropriations Act Explanatory 
Statements for Division D, Energy and Water Development and Related 
Agencies, includes the following statement, ``The Department [DOE] is 
directed to finalize the Fee Rule for mercury storage as expeditiously 
as possible.''

Proposed Action

    DOE proposes to designate one or more facilities for the long-term 
management and storage of elemental mercury in accordance with MEBA. 
Facilities must comply with applicable requirements of Section 5(d) of 
MEBA, ``Management Standards for a Facility,'' including the 
requirements of the Solid Waste Disposal Act as amended by RCRA, and 
other state-specific permitting requirements. Consistent with the 
Supplement Analysis prepared in 2019 but updated to account for 
accumulation of elemental mercury since then, the SEIS-II will evaluate 
the potential environmental impacts of an estimated inventory of up to 
7,000 metric tons of elemental mercury that could require management 
and storage during the 40-year period of analysis.
    After completion of DOE's Proposed Action, DOE would establish the 
fee for long-term management and storage of elemental mercury through 
rulemaking conducted pursuant to the Administrative Procedure Act (5 
U.S.C. 551 et seq.). DOE would evaluate the potential environmental 
impacts of the rulemaking in accordance with NEPA implementing 
procedures at 10 CFR 1021.213.

Proposed Alternatives

    The 2011 Mercury Storage EIS and the 2013 Mercury Storage SEIS 
evaluated both new construction and the designation of existing 
facilities for management and storage of elemental mercury. In the 
SEIS-II, DOE's range of reasonable alternatives includes existing 
facilities that could be designated with only minor modifications to 
meet the permitting requirements for elemental mercury storage. 
Construction of new facilities would further negatively impact the 
schedule for DOE's receipt of elemental mercury, which was required by 
MEBA to begin acceptance by January 2019.
    Of the four existing facilities evaluated in the 2011 Mercury 
Storage EIS, two remain as reasonable alternatives. Since 2011, 
portions of the Bannister Federal Complex in Kansas City have been 
transferred from DOE to a private entity and rezoned as an urban 
redevelopment district. Therefore, this facility is no longer 
considered a reasonable alternative for the storage of elemental 
mercury. Additionally, the planning basis for the existing facilities 
at the Idaho National Laboratory Radioactive Waste Management Complex 
(RWMC) has changed and those facilities are no longer considered a 
reasonable alternative for storage of elemental mercury. DOE is 
planning to demolish these facilities and close the RWMC once its 
current radioactive waste mission is completed. Therefore, the SEIS-II 
will update the analysis for the Hawthorne Army Depot in Nevada and the 
WCS site in Texas.
    In addition to the two sites identified previously, the SEIS-II 
will also evaluate other facilities that maintain or would be capable 
of maintaining a RCRA Part B permit for the long-term management and 
storage of elemental mercury. DOE used four methods to identify these 
additional facilities: (1) DOE contacted commercial facilities that had 
previously certified to DOE that they meet the requirements to accept 
and store elemental mercury at least until the DOE-designated facility 
opens (https://www.energy.gov/em/downloads/permitted-mercury-storage-facility-notifications); (2) on December 3, 2020, DOE issued basic 
ordering agreements to companies to conduct nationwide waste management 
services, including ancillary services such as management and storage 
of elemental mercury; (3) on October 14, 2020, DOE issued a Sources 
Sought Synopsis/Request for Information to identify potential offerors 
to provide leased space and associated services for the management and 
storage of elemental mercury; and (4) DOE is re-evaluating existing 
facilities on DOE property that could be repurposed for management and 
storage of elemental mercury. Past and ongoing procurement actions were 
used only to assist in the identification of potential reasonable 
alternatives for consideration in the SEIS. They do not have a bearing 
on what future procurement actions that DOE would take to contract for 
services related to long-term management and storage of elemental 
mercury.
    Through these outreach efforts, DOE has identified the following 
additional reasonable alternative locations that will be evaluated in 
the SEIS-II (in addition to those previously evaluated as discussed 
previously):
     Bethlehem Apparatus in Bethlehem, Pennsylvania;
     Clean Harbors (facilities in Pecatonica, Illinois; 
Greenbrier, Tennessee; and Tooele, Utah);
     Veolia North America in Gum Springs, Arkansas; and
     Perma-Fix Diversified Scientific Services, Inc., in 
Kingston, Tennessee.
    As part of the SEIS-II, DOE will update the analysis of the No-
Action Alternative.

Potential Areas of Environmental Analysis

    DOE has tentatively identified the following resource areas for 
analysis in the SEIS-II. The following list is not intended to be 
comprehensive or to pre-determine the potential impacts to be analyzed: 
Land use and visual resources; geology and soils; water resources; air 
quality and noise; ecological resources; cultural and paleontological 
resources; infrastructure; waste management; occupational and public 
health and safety; socioeconomics; transportation; and environmental 
justice.

NEPA Process and Public Participation in the SEIS-II

    DOE will prepare the SEIS-II in accordance with the Council on 
Environmental Quality (CEQ) regulations at 40 CFR parts 1500-1508 \1\ 
and DOE NEPA implementing procedures at 10 CFR part 1021. In accordance 
with 10 CFR 1021.311(f), a public scoping process is not required for a 
DOE-issued SEIS. DOE will issue a Federal Register notice detailing the 
release of the draft SEIS-II, dates of one or more internet-based 
public hearings, and directions on submitting public comments. DOE 
expects to issue the Draft SEIS-II in late 2021.
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    \1\ On July 16, 2020, the CEQ issued a final rule to update its 
regulations for Federal agencies to implement NEPA (85 FR 43304). 
The effective date for the new regulations is September 14, 2020. 
Because the SEIS-II was initiated after that effective date, it will 
be prepared in accordance with the new CEQ regulations.
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Signing Authority

    This document of the Department of Energy was signed on May 17, 
2021, by Mark Gilbertson, Associate Principal Deputy Assistant 
Secretary for Regulatory and Policy Affairs, pursuant

[[Page 27841]]

to delegated authority from the Secretary of the Energy. That document 
with the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with the requirements 
of the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on May 19, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-10905 Filed 5-21-21; 8:45 am]
BILLING CODE 6450-01-P