[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Notices]
[Pages 27495-27498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09301]


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DEPARTMENT OF ENERGY


Notice of Availability of Interim Guidance on Packaging, 
Transportation, Receipt, Management, Short-Term and Long-Term Storage 
of Elemental Mercury and Request for Comment

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

[[Page 27496]]


ACTION: Notice of availability; request for comments.

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SUMMARY: The U.S. Department of Energy (DOE) provides this Notice of 
Availability and Request for Comment on a revision to DOE's 2009 U.S. 
Department of Energy Interim Guidance on Packaging, Receipt, 
Management, and Long-Term Storage of Elemental Mercury (2009 Long-Term 
Storage Guidance) and Guidance for Short-Term Storage of Elemental 
Mercury by Ore Processors (May 2019) (2019 Short-Term Storage 
Guidance). DOE specifically seeks input from potentially affected 
States, pursuant to the Mercury Export Ban Act, as amended, and also 
invites the public, stakeholders, and other States to provide comments 
on this draft guidance document.

DATES: The 30-day public comment period begins on the date of 
publication of this Notice and ends on June 1, 2023. Comments may be 
received through one of the methods described in section C in 
SUPPLEMENTARY INFORMATION section.

ADDRESSES: Please direct written comments via one of the following 
methods:
    Email: Send comments to [email protected] . Please submit 
comments in MicrosoftTM Word, or PDF file format, and avoid the use of 
encryption.
    U.S. Mail: Send comments to the following address: David Haught, 
U.S. Department of Energy, Office of Environmental Management, Office 
of Waste Disposal (EM-4.22), 1000 Independence Avenue SW, Washington, 
DC 20585.

FOR FURTHER INFORMATION CONTACT: David Haught at 
[email protected] or at U.S. Department of Energy, Office of 
Environmental Management, Office of Waste Disposal (EM-4.22), 1000 
Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-
5000.

SUPPLEMENTARY INFORMATION: 

A. Background

    The Mercury Export Ban Act of 2008 (Pub. L. 110-414) (MEBA of 2008) 
as amended by the Frank R. Lautenberg Chemical Safety for the 21st 
Century Act (Pub. L. 114-182) (Chemical Safety Act of 2016), 
established requirements pertaining to elemental mercury and certain 
mercury compounds. Those requirements are located in the Toxic 
Substances Control Act (TSCA) (Pub. L. 94-469) and the Solid Waste 
Disposal Act of 1965 (Pub. L. 89-272), as amended by the Resource 
Conservation and Recovery Act of 1976 (RCRA) (Pub. L. 94-580), and 
subsequent amendments. Among other things, MEBA of 2008, and the 
Chemical Safety Act of 2016, collectively referred to herein as MEBA, 
amended TSCA and RCRA to ban the export of elemental mercury and 
certain mercury compounds, as well to provide for long-term and interim 
(i.e., short-term) management and storage of elemental mercury. 
Specifically, MEBA of 2008 required DOE to designate a facility or 
facilities for the long-term management and storage of elemental 
mercury (referred to herein as the Long-Term Elemental Mercury Storage 
Facility (LTEMSF)) and to issue guidance on recommended standards and 
procedures for receipt, management, and long-term storage of elemental 
mercury. 42 U.S.C. 6939(a)(1), (d)(1). The Chemical Safety Act of 2016 
provided for interim onsite storage of elemental mercury for certain 
generators, while awaiting availability of the DOE-designated LTEMSF. 
42 U.S.C. 6939f(g)(2)(D). It further required DOE to issue guidance on 
recommended standards and procedures for management and short-term 
onsite storage. 42 U.S.C. 6939f(g)(2)(E). DOE, after consultation with 
the U.S. Environmental Protection Agency (EPA) and appropriate State 
agencies in potentially affected States, issued the 2009 Long-Term 
Storage Guidance to establish standards and procedures for packaging, 
transportation, receipt, management, and long-term storage of elemental 
mercury at a DOE-designated facility or facilities, as mandated by MEBA 
of 2008. Subsequently, the Chemical Safety Act of 2016 amended MEBA of 
2008 and provided for onsite interim storage of elemental mercury that 
is generated as a result of ore processing and/or related pollution 
control activities and is destined for DOE's LTEMSF. It required DOE to 
issue additional guidance for short-term management and storage of 
elemental mercury by the covered generators. Accordingly, DOE issued 
the 2019 Short-Term Storage Guidance to address this requirement. Both 
guidance documents were based on certain planning assumptions specific 
to those timeframes.

B. Revised Guidance Document

    Neither MEBA of 2008 nor the Chemical Safety Act of 2016 mandate 
revisions to either the 2009 Long-Term Storage Guidance or 2019 Short-
Term Storage Guidance documents; however, since their initial issuance, 
some key underlying assumptions have changed and this revision, which 
addresses both long-term and short-term storage, reflects those 
changes, as discussed below. Once finalized and issued, this guidance 
document will supersede the previously issued 2009 Long-Term Storage 
Guidance and 2019 Short-Term Storage Guidance. At that time, the 
previously issued guidance documents will be rescinded. This draft 
guidance document was developed by DOE after consultation with the EPA, 
as well as the U.S. Department of Transportation (DOT). Additionally, 
DOE is specifically seeking input from potentially affected States and 
will further consult with them, as necessary.
    1. Omission of Example Procedures: DOE has determined that it is 
not appropriate to include example procedures in this guidance 
document, but rather to defer to the LTEMSF Operator(s) implementation 
of its RCRA permit and approved procedures, in conjunction with 
oversight from their regulator(s). The 2009 Long-Term Storage Guidance 
included standards and example procedures for receipt, management, and 
long-term storage of elemental mercury. These procedures, as presented 
in the various sections of that document, provided annotated outlines 
or templates of what was envisioned to be included in the LTEMSF 
procedures for all aspects of operation. In general, these templates 
described suggested processes used to meet the expectations of the 
applicable standards. However, the Operator(s) of the DOE-designated 
LTEMSF, whether a commercial or federal government RCRA-permitted 
treatment, storage and disposal facility (TSDF), will likely leverage 
existing hazardous waste procedures, as well as develop new procedures 
as required for critical operations specific to management of elemental 
mercury. These procedures must ensure compliance with the applicable 
federal regulations, as well as state and local regulations. New and/or 
revised procedures are expected to require review and approval by the 
regulator(s).
    2. Waste Container Contents: The 2009 Long-Term Storage Guidance 
contained a key assumption that the elemental mercury accepted for 
storage in the DOE-designated LTEMSF would be at least 99.5 percent by 
volume (vol%) elemental mercury. DOE does not carry this assumption 
forward in the revision. Instead, DOE assumes the generators will 
comply with applicable RCRA hazardous waste treatment and packaging 
requirements for highly concentrated elemental mercury, prior to 
receipt at the DOE LTEMSF. DOE's interpretation of the term ``elemental 
mercury'' used in MEBA, see, e.g., 42 U.S.C. 6939f(a), is that only 
elemental mercury that was generated in the U.S. and that meets one (or 
more) of the

[[Page 27497]]

following criteria is acceptable for storage in its LTEMSF: (1) U151 
coded waste, (2) D009 coded waste generated as a result of Retorting of 
Mercury (RMERC) treatment technology, and/or (3) mercury that was 
previously treated to 99.5 vol% elemental mercury.\1\
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    \1\ Elemental mercury that has previously been treated to 99.5 
vol% elemental mercury will be accepted at the DOE facility. This is 
included to capture treatment that some generators have already 
undertaken in order to meet DOE's original 99.5 vol% criteria.
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    Based on the expected elemental mercury generator sources and the 
related factors discussed below, this revised guidance does not assume 
any DOE-specified minimum purity for elemental mercury accepted for 
management and storage at the DOE-designated LTEMSF. Rather, it focuses 
on applicable RCRA and DOT regulations related to compatibility of the 
waste with the containers.
    3. Generators: In general, elemental mercury generators can be 
grouped into three primary categories: (1) ore processors, (2) 
commercial recyclers, and (3) chlor-alkali plants. Generation of 
mercury by ore processors typically occurs due to retorting as part of 
their required pollution control activities and represents the majority 
of the potential projected receipts at a DOE-designated LTEMSF. 
Similarly, commercial recyclers use retorting to separate elemental 
mercury from certain waste media, as well as collect commercial/
technical-grade elemental mercury from discarded components. Finally, 
the chlor-alkali plants generate elemental mercury during 
decommissioning of electrolytic cells that use commercial/technical-
grade elemental mercury in the process. All of these generation sources 
are expected to produce relatively pure elemental mercury waste 
streams; however, each must be evaluated on a case-by-case basis by the 
LTEMSF Operator(s), in consultation with appropriate regulators, to 
determine they meet one of the three criteria set forth above for 
acceptability.
    4. Containers and Compatibility: The principal objective regarding 
the containers accepted for storage in the DOE-designated LTEMSF is 
that they are lined with, or made of, materials that will not react 
with and are compatible with the hazardous waste to be stored and do 
not pose a risk of accelerated corrosion and container failure over 
time (40 CFR 264/265.172). Currently, there are two primary containers 
of interest, which are in common commercial use for packaging, 
transportation, and storage of elemental mercury, that meet the 
applicable DOT regulations in 49 CFR 173. These include a three-liter 
(3-L) flask, with a 35-kg capacity, and a one metric ton (1-MT) 
container. Both are constructed of mild steel and are unlined such that 
the contents are in direct contact with the container inside surfaces. 
Due to their prevalent use, these are the assumed predominant 
containers to be received at the DOE-designated LTEMSF.
    Given the uncertain duration for elemental mercury storage, the 
requirement for compatible materials is particularly relevant and 
important to safe management of the inventory. The primary contaminants 
of concern are those that can exist as secondary phases floating on top 
of the elemental mercury (i.e., as opposed to the trace amounts of very 
small particles of metals or amalgams that may be suspended in the 
elemental mercury). These could be solid phases of mercury salts, such 
as calomel (mercury chloride) and cinnabar (mercury sulfide), or 
aqueous phases of water, acid solutions, and chloride salt solutions. 
Any of these secondary phases of contaminants could eventually lead to 
failure of unlined containers made of mild steel. DOE will only accept 
elemental mercury that was generated in the U.S. and that meets one (or 
more) of the following criteria: (1) U151 coded waste, (2) D009 coded 
waste generated as a result of RMERC treatment technology, and/or (3) 
mercury that was previously treated to 99.5 vol% elemental mercury.
    No secondary phases of contaminants, based on process knowledge 
developed in accordance with 40 CFR 262.11(d) or visual examination, as 
determined appropriate by the Operator(s) of the DOE-designated LTEMSF, 
in coordination with their regulators, including solid and liquid 
phases, are acceptable for receipt at the DOE-designated LTEMSF, 
ensuring compliance with compatibility requirements set forth in 40 CFR 
264/265.172, and 49 CFR 173.24(c). Based on the operations that 
generate significant portions of the elemental mercury inventories that 
are anticipated to be transferred to the LTEMSF, process knowledge is 
expected to be acceptable for characterizing the container contents to 
the extent required to treat, store, or dispose of the waste. Periodic 
validation via analysis and/or visual examination will be performed in 
accordance with the applicable regulations, described in 40 CFR 264.13, 
in consultation with the Operator(s) of the DOE-designated LTEMSF, and 
in compliance with 40 CFR 268.7 to re-validate the basis for acceptable 
process knowledge.
    5. Onsite Short-Term Storage by Ore Processors: Section 10(c) of 
the Chemical Safety Act of 2016 states that, if DOE is unable to accept 
elemental mercury for reasons beyond the control of the generator, ore 
processors who meet the applicable requirements specified therein ``may 
accumulate the mercury produced onsite that is destined for a facility 
designated by the Secretary [of Energy] under subsection (a) for more 
than 90 days without a permit issued under section 3005(c) of the Solid 
Waste Disposal Act (42 U.S.C. 6925(c)), and shall not be subject to the 
storage prohibition of section 3004(j) of that Act (42 U.S.C. 
6924(j)).'' 42 U.S.C. 6939f(g)(2)(D). Ore processors that elect to 
conduct onsite short-term storage of elemental mercury that is destined 
for the DOE-designated LTEMSF will be subject to all RCRA regulations 
applicable to generators accumulating hazardous waste on site, as set 
forth in 40 CFR 262.17, with the exception of the accumulation times, 
which are specifically exempted in the Chemical Safety Act of 2016.
    As previously discussed, DOE has not yet designated the LTEMSF. Ore 
processors are the only generators granted exemption from the RCRA 
storage prohibitions and allowed to accumulate elemental mercury onsite 
beyond 90 days in non-permitted temporary storage. Based on the 
technologies used in the pollution control systems operated by the ore 
processors, the elemental mercury acceptable for short-term storage is 
typically generated via retorting (i.e., RMERC). Accordingly, it is 
expected to exhibit a relatively high percent by volume of elemental 
mercury, although there is a potential for contaminants to be present 
as secondary phases in the containers. The revised guidance document 
includes changes to the 2019 Short-Term Storage Guidance by specifying 
the criteria for elemental mercury which DOE will accept and by adding 
emphasis to the requirements for compatible waste containers and 
compliance with the requirements of 40 CFR 264/265.172. The approach 
for ensuring compliance should be determined in consultation with and 
approval by the regulators for the affected ore processors.

C. Request for Comments

    DOE specifically seeks comment from potentially affected states--
Arkansas, Illinois, Nevada, Pennsylvania, Tennessee, Texas, and Utah--
which are analyzed as candidate storage locations in DOE's 2022 Draft 
Supplemental Environmental Impact Statement (DOE/EIS-0423-S2D) and also 
invites the public, stakeholders, and other States to provide comments 
on this draft

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guidance document. DOE will accept comments via the methods prescribed 
above in the ADDRESSES section. The Department will consider all 
comments received during the public comment period and modify the 
guidance document as appropriate. Any necessary follow-up consultation 
with EPA or State agencies in potentially affected States will be 
conducted in accordance with MEBA, 42 U.S.C. 6939f(d)(1).
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email two well-marked copies: one copy of the document marked 
``confidential'' including all the information believed to be 
confidential, and one copy of the document marked ``non-confidential'' 
with the information believed to be confidential deleted. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.

Signing Authority

    This document of the Department of Energy was signed on April 27, 
2023, by Kristen G. Ellis, Acting Associate Principal Deputy Assistant 
Secretary for Regulatory and Policy Affairs, Office of Environmental 
Management, pursuant to delegated authority from the Secretary of 
Energy. That document with the original signature and date is 
maintained by DOE. For administrative purposes only, and in compliance 
with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of the Department of Energy. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

    Signed in Washington, DC, on April 27, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2023-09301 Filed 5-1-23; 8:45 am]
BILLING CODE 6450-01-P