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:


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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.