Amended Record of Decision for the Long-Term Management and Storage of Elemental Mercury, 63105-63107 [2020-22020]
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Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Notices
DEPARTMENT OF ENERGY
Amended Record of Decision for the
Long-Term Management and Storage
of Elemental Mercury
Office of Environmental
Management, U.S. Department of
Energy.
AGENCY:
ACTION:
Amended record of decision.
The U.S. Department of
Energy (DOE) is issuing this Amended
Record of Decision (AROD) to amend its
Record of Decision (ROD) for the longterm 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.
SUMMARY:
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 LongTerm 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/nepadocuments. 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
David.Haught@hq.doe.gov.
ADDRESSES:
For
further information on the management
and storage of elemental mercury,
please contact Dave Haught at
David.Haught@hq.doe.gov or visit
https://www.energy.gov/em/services/
waste-management/waste-andmaterials-disposition-information/longterm-management-and. For general
information on the Office of
Environmental Management’s National
Environmental Policy Act of 1969
process, please contact Bill Ostrum, at
William.Ostrum@hq.doe.gov and at
(202) 586–2513.
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FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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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 LongTerm 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 LongTerm Management and Storage of
Elemental Mercury Environmental
Impact Statement (DOE/EIS–0423–SA–
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63105
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 longterm 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
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Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Notices
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 DOEdesignated 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
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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
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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Sfmt 4703
storage of elemental mercury generated
within the United States.
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
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Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / Notices
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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
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
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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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
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. CP20–503–000]
Northern Natural Gas Company; Notice
of Schedule for Environmental Review
of the Northern Lights 2021 Expansion
Project
On July 31, 2020, Northern Natural
Gas Company (Northern) filed an
application in Docket No. CP20–503–
000 requesting a Certificate of Public
Convenience and Necessity and
authorization pursuant to Section 7 of
the Natural Gas Act to construct,
modify, replace, and operate certain
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63107
natural gas pipeline facilities in
Minnesota. The proposed project is
known as the Northern Lights 2021
Expansion Project (Project) and would
provide 45,693 dekatherms per day
(Dth/day) of incremental winter peak
day firm service for residential,
commercial, and industrial customers in
Northern’s Market Area.
On August 12, 2020, the Federal
Energy Regulatory Commission
(Commission or FERC) issued its Notice
of Application for the Project. Among
other things, that notice alerted agencies
issuing federal authorizations of the
requirement to complete all necessary
reviews and to reach a final decision on
a request for a federal authorization
within 90 days of the date of issuance
of the Commission staff’s Environmental
Assessment (EA) for the Project. This
instant notice identifies the FERC staff’s
planned schedule for the completion of
the EA for the Project.
Schedule for Environmental Review
Issuance of EA—December 15, 2020
90-day Federal Authorization
Decision—Deadline March 15, 2021
If a schedule change becomes
necessary, additional notice will be
provided so that the relevant agencies
are kept informed of the Project’s
progress.
Project Description
The Northern Lights 2021 Expansion
Project would consist of the following
facilities in Minnesota:
• The Willmar D Branch Line
Extension (about 0.8 mile of 24-inchdiameter pipeline) in Dakota and Scott
counties;
• the Carlton Interconnect Loop
(about 0.7 mile of 24-inch-diameter
pipeline) in Carlton County;
• replacement of 425 feet of 8-inchdiameter pipeline on the Viking
Interconnect Branch Line with a 12inch-diameter branch line of the same
length, in Morrison County;
• a new greenfield natural gas-fired
Hinckley Compressor Station in Pine
County, which would include one
11,153-horsepower natural gas-fired
turbine, one gas heating skid, and one
natural gas-fired backup electric
generator;
• modification of the Pierz
Compressor Station in Morrison County,
including a 1,100 horsepower electric
motor-driven compressor unit; and
• appurtenant facilities including one
new pig 1 receiver and one new pig
1 A pig is a tool that the pipeline company inserts
into and pushes through the pipeline for cleaning
the pipeline, conducting internal inspections, or
other purposes.
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]]>Agencies
[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]
[[Page 63105]]
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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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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
