August 11, 2020

Guidance on Managing Waste Elemental Mercury

The Mercury Export Ban Act (MEBA) was signed into law in 2008 to reduce the availability of elemental mercury in both domestic and international markets. One section of MEBA requires DOE to designate a facility to be used for long-term storage of waste elemental mercury generated in the United States. In 2019, a Record of Decision was signed by DOE, announcing the department’s decision to store up to 6,800 metric tons of elemental mercury in existing buildings at a site near Andrews, Texas. [84 FR 66890]

RO 14934, released July 1, 2020, addresses two aspects of how MEBA interfaces with RCRA regarding waste mercury management. First, prior to MEBA, most mercury recovery sites (e.g., retort facilities) operated as RCRA-exempt recycling facilities per §261.6(c) (i.e., no RCRA permit was required to recycle D009 and other mercury-containing hazardous waste). Because MEBA reduced the market for elemental mercury, much of the mercury that was once recovered and resold is now discarded, resulting in generation of U151 listed hazardous waste. This raises the question as to whether these mercury recovery facilities will lose their exemption from the need to obtain a RCRA permit; they are now recycling very little of the recovered elemental mercury but, instead, will be sending some or all of it as hazardous waste to the DOE long-term storage repository. Although RO 14934 did not provide definitive guidance, it is still possible for a specific mercury recovery unit to be part of a legitimate recycling process and, therefore, exempt from permitting. However, this determination is case-specific and should be made by the appropriate RCRA-authorized state or EPA region, taking into consideration the potential for domestic sale of recovered mercury.

Second, waste elemental mercury (U151) has been in storage since the effective date of the export ban (January 1, 2013) at a number of RCRA-permitted TSD facilities under the interim storage authority of MEBA. MEBA specifically excludes this extended storage from the one-year storage limit (i.e., the RCRA storage prohibition of §268.50), while awaiting opening of the DOE facility. The question that arises is the applicability of the RCRA storage prohibition to the storage of elemental mercury now that the DOE facility is opening. RO 14934 addressed this issue as follows:

Any mercury currently stored by a TSD facility under the interim storage authority of MEBA must be forwarded to the DOE facility on an appropriate schedule, as negotiated between the two facilities. Although not specifically stated, the storage prohibition exclusion presumably remains in effect at the TSD facility until the mercury is shipped offsite per this schedule.
Mercury newly accumulated by a TSD facility for less than one year to facilitate appropriate recovery, treatment, or disposal, and for which the extended storage provisions of MEBA do not apply, is in compliance with the storage prohibition. However, at the end of one year of storage, such mercury would have to be sent for appropriate recovery, treatment, or disposal, or sent to the DOE facility, to avoid violating the storage prohibition.
The §268.50 storage prohibition allows a TSD facility to store newly accumulated elemental mercury for longer than one year if it can prove that such storage is solely for the purpose of facilitating proper recovery, treatment, or disposal. RO 14934 addressed this provision, stating “Given the existence of the DOE storage facility, the agency believes it would be difficult for a TSD [facility] to make the showing required to extend storage beyond one year.”
Elemental mercury stored at the DOE facility or elemental mercury destined for the DOE facility and accumulated for 90 days or less is not subject to the RCRA storage prohibition.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA 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.