December 12, 2012

Mercury Export Ban Effective January 1, 2013

With a few exceptions, the export of elemental mercury from the United States will be prohibited by law effective January 1, 2013. This ban will directly affect hazardous waste treatment, storage, and disposal facilities that manage waste elemental mercury. It may also indirectly affect generators of hazardous mercury wastes.

Background

The Mercury Export Ban Act (MEBA or the Act, Public Law No. 110-414), which became law on October 14, 2008, is intended to reduce the availability of elemental mercury in domestic and international markets. Congress believes that this will reduce mercury emissions to the environment. The principal provisions of the Act are:

It prohibits the export of elemental mercury effective January 1, 2013. Some essential-use exemptions from the export ban will be available.
It requires the Department of Energy (DOE) to designate a facility to be used for the long-term storage of elemental mercury generated in the United States. DOE was supposed to designate this facility by January 2010 and have the facility operational by January 1, 2013. However, a site for the facility has not yet been named. On June 5, 2012 (77 FR 33204), DOE announced that it will prepare a supplemental environmental impact statement (EIS) for this project. The supplemental EIS will evaluate alternative sites for the mercury storage facility near the Waste Isolation Pilot Plant in New Mexico. It appears that the siting and construction of this facility may be delayed for some time.
It prohibits the distribution, transfer, or sale of elemental mercury by federal agencies, with some exceptions.

What does this have to do with RCRA?

Under RCRA, elemental mercury that is being used or stored for reuse is not considered a waste. However, according to EPA, if elemental mercury no longer has a commodity value, it could be considered a solid waste. If elemental mercury becomes a solid waste, it would also be a hazardous waste (D009, and U151 if unused) and would be subject to the hazardous waste regulations, including the land disposal restrictions (LDR).

The LDR treatment standard for the high-mercury subcategories of D009 and U151 is recovery of mercury via roasting or retorting. The concept when this treatment standard was set in the early 1990s was that the mercury would be recovered and reused rather than land disposed. However, domestic uses for mercury are declining. Therefore, after the export ban goes into effect, elemental mercury recovered by mercury recovery facilities will likely have to be stored as hazardous waste. In general, storing hazardous waste for longer than one year is prohibited under the LDR storage prohibition in §268.50. However, MEBA specifically excludes elemental mercury being stored in the yet-to-be-identified DOE repository from the one-year storage limit.

The Act also allows elemental mercury to be stored for longer than one year at any RCRA-permitted TSD facility under the following conditions:

DOE is unable to accept the mercury at its yet-to-be-designated repository for reasons beyond the control of the owner or operator of the TSD facility,
The owner or operator of the TSD facility certifies in writing that it will ship the mercury to DOE’s repository when it is able to accept the mercury, and
The owner or operator of the TSD facility certifies that it will not sell or otherwise place the mercury in commerce.

How will this affect mercury waste generators?

When the export ban goes into effect, mercury recovery facilities will no longer be able to sell the recovered mercury in foreign markets. Mercury recovery facilities that ship their elemental mercury to the DOE facility when it becomes available will have to pay a fee to DOE for taking the mercury. To remain profitable, these facilities will likely need to increase what they charge generators for treatment of mercury wastes (D009 or U151) containing ≥260 mg/kg mercury. So the most likely effect on generators is that their treatment and disposal costs for these wastes will increase.

For those facilities generating significant quantities of elemental mercury between now and when the DOE repository opens, the most likely management options are 1) exhaust all reuse (non-waste) opportunities, or 2) ship it to a TSD facility for storage pending availability of the DOE repository.

A good reference for those who want to know more about MEBA is “Questions and Answers about the Mercury Export Ban Act of 2008.”

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.