
[Federal Register: September 11, 2009 (Volume 74, Number 175)]
[Proposed Rules]               
[Page 46707-46714]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se09-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[EPA-HQ-OPPT-2008-0483; FRL-8432-3]
RIN 2070-AJ36

 
Elemental Mercury Used in Flow Meters, Natural Gas Manometers, 
and Pyrometers; Proposed Significant New Use Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY:  EPA is proposing a significant new use rule (SNUR) under 
section 5(a)(2) of the Toxic Substances Control Act (TSCA) for 
elemental mercury (CAS No. 7439-97-6) for use in flow meters, natural 
gas manometers, and pyrometers, except for use in these articles when 
they are in service as of the effective date of the final rule. This 
action would require persons who intend to manufacture (including 
import) or process elemental mercury for an activity that is designated 
as a significant new use by this proposed rule to notify EPA at least 
90 days before commencing that activity. Persons subject to the 
provisions of this proposed rule would not be exempt from significant 
new use reporting if they import into the United States or process 
elemental mercury as part of an article. The required notification 
would provide EPA with the opportunity to evaluate the intended use 
and, if necessary, to prohibit or limit that activity before it occurs.

DATES: Comments must be received on or before November 10, 2009.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2008-0483, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2008-0483. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2008-0483. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute.

[[Page 46708]]

Do not submit information that you consider to be CBI or otherwise 
protected through regulations.gov or e-mail. The regulations.gov 
website is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an e-mail comment directly to EPA 
without going through regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the docket and made available on the Internet. If you submit 
an electronic comment, EPA recommends that you include your name and 
other contact information in the body of your comment and with any disk 
or CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: All documents in the docket are listed in the docket index 
available at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically at http://www.regulations.gov, or, if only available in 
hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA 
Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution 
Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of 
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number of the EPA/DC Public Reading Room 
is (202) 566-1744, and the telephone number for the OPPT Docket is 
(202) 566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-
Hotline@epa.gov.
     For technical information contact: Peter Gimlin, National Program 
Chemicals Division, Office of Pollution Prevention and Toxics, Office 
of Pollution Prevention and Toxics, Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone 
number: (202) 566-0515; e-mail address: gimlin.peter@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you manufacture 
(defined by statute to include import) or process elemental mercury 
used in flow meters, natural gas manometers, or pyrometers. Potentially 
affected entities may include, but are not limited to, manufacturers of 
instruments and related products for measuring, displaying, and 
controlling industrial process variables (North American Industrial 
Classification System (NAICS) code 334513). This listing is not 
intended to be exhaustive, but rather provides a guide for readers 
regarding entities likely to be affected by this action. Other types of 
entities not listed in this unit could also be affected. The NAICS 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the applicability provisions in 40 CFR 721.5 for 
SNUR-related obligations. If you have any questions regarding the 
applicability of this action to a particular entity, consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.
    This action may also affect certain entities through pre-existing 
import certification and export notification rules under TSCA. Persons 
who import any chemical substance governed by a final SNUR are subject 
to the TSCA section 13 (15 U.S.C. 2612) import certification 
requirements and the corresponding regulations at 19 CFR 12.118 through 
12.127 and 19 CFR 127.28. Those persons must certify that the shipment 
of the chemical substance complies with all applicable rules and orders 
under TSCA, including any SNUR requirements. The EPA policy in support 
of import certification appears at 40 CFR part 707, subpart B. In 
addition, any persons who export or intend to export a chemical 
substance that is the subject of this proposed rule on or after October 
13, 2009 are subject to the export notification provisions of TSCA 
section 12(b) (15 U.S.C. 2611(b)), (see 40 CFR 721.20), and must comply 
with the export notification requirements in 40 CFR part 707, subpart 
D.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and 
then identify electronically within the disk or CD-ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What Action is the Agency Taking?

    This proposed SNUR would require persons to notify EPA at least 90 
days before commencing the manufacture, import, or processing of 
elemental

[[Page 46709]]

mercury for any of the following significant new uses: Flow meters, 
natural gas manometers, or pyrometers. This proposed rule does not 
affect the manufacturing and processing of elemental mercury for use in 
these articles when they are in service as of the effective date of the 
final rule. EPA believes this proposed SNUR is necessary because 
manufacturing, processing, use, or disposal of mercury associated with 
these uses may produce significant changes in human and environmental 
exposures. The rationale and objectives for this proposed SNUR are 
explained in Unit IV.

B. What is the Agency's Authority for Taking this Action?

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to 
determine that a use of a chemical substance is a ``significant new 
use.'' EPA must make this determination by rule after considering all 
relevant factors, including those listed in TSCA section 5(a)(2). Once 
EPA determines that a use of a chemical substance is a significant new 
use, TSCA section 5(a)(1)(B) requires persons to submit a significant 
new use notice (SNUN) to EPA at least 90 days before they manufacture 
or process the chemical substance for that use (15 U.S.C. 
2604(a)(1)(B)). As described in Unit II.C., the general SNUR provisions 
are found at 40 CFR part 721, subpart A.

C. Applicability of General Provisions

    General provisions for SNURs appear under 40 CFR part 721, subpart 
A. These provisions describe persons subject to the rule, recordkeeping 
requirements, exemptions to reporting requirements, and applicability 
of the rule to uses occurring before the effective date of the final 
rule. However, 40 CFR 721.45(f) does not apply to this SNUR. As a 
result, persons subject to the provisions of this proposed rule would 
not be exempt from significant new use reporting if they import or 
process elemental mercury as part of an article (see 40 CFR 721.5). 
Conversely, the exemption from notification requirements for exported 
articles (see 40 CFR 707.60(b)) remains in force. Thus, persons who 
export elemental mercury as part of an article are not required to 
provide export notification.
    Provisions relating to user fees appear at 40 CFR part 700. 
According to 40 CFR 721.1(c), persons subject to SNURs must comply with 
the same notice requirements and EPA regulatory procedures as 
submitters of Premanufacture Notices (PMNs) under TSCA section 
5(a)(1)(A). In particular, these requirements include the information 
submission requirements of TSCA section 5(b) and 5(d)(1), the 
exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and 
(h)(5), and the regulations at 40 CFR part 720. Once EPA receives a 
SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, 
or 7 to control the activities on which it has received the SNUN. If 
EPA does not take action, EPA is required under TSCA section 5(g) to 
explain in the Federal Register its reasons for not taking action.
    Persons who export or intend to export a chemical substance 
identified in a proposed or final SNUR are subject to the export 
notification provisions of TSCA section 12(b). The regulations that 
interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. 
Persons who import a chemical substance identified in a final SNUR are 
subject to the TSCA section 13 import certification requirements, 
codified at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Such 
persons must certify that the shipment of the chemical substance 
complies with all applicable rules and orders under TSCA, including any 
SNUR requirements. The EPA policy in support of import certification 
appears at 40 CFR part 707, subpart B.

III. Summary of the Proposed Rule

A. Overview of Mercury and Mercury Uses

    1. Mercury. This proposed rule applies to elemental mercury (CAS 
No. 7439-97-6), which is a naturally occurring element. Because of its 
unique properties (e.g., exists as a liquid at room temperature and 
forms amalgams with many metals), elemental mercury has been used in 
many industrial processes and consumer products. In addition to its 
useful characteristics, mercury also is known to cause adverse health 
effects in humans and wildlife. These effects can vary depending on the 
form of mercury to which a person or animal is exposed, as well as the 
magnitude, length, and frequency of exposure.
    The most prevalent human and wildlife exposure to mercury results 
from ingesting fish contaminated with methylmercury. Methylmercury is 
an organo-metallic compound that is formed via the conversion of 
elemental or inorganic mercury compounds by certain microorganisms and 
other natural processes. For example, elemental mercury may evaporate 
and be emitted into the atmosphere. Atmospheric mercury can be 
deposited directly into water bodies or watersheds, where it can be 
washed into surface waters via overland run-off. Once deposited in 
sediments, certain microorganisms and other natural processes can 
convert elemental mercury into methylmercury. Methylmercury 
bioaccumulates, which means that it is taken up and concentrated in the 
tissues of aquatic, mammalian, avian, and other wildlife. Methylmercury 
is a highly toxic substance; a number of adverse health effects 
associated with exposure to it have been identified in humans and in 
animal studies. Most extensive are the data on neurotoxicity, 
particularly in developing organisms. Fetuses, infants, and young 
children generally are more sensitive to methylmercury's neurological 
effects than adults.
    In 2004, EPA and the Food and Drug Administration (FDA) issued a 
national consumption advisory concerning mercury in fish. The advisory 
contains recommended limits on the amount of certain types of fish and 
shellfish that pregnant women and young children can safely consume. By 
2005, all 50 states had issued fish consumption advisories for fish 
from certain water bodies known to be contaminated by methylmercury, 
see http://www.epa.gov/mercury/advisories.htm.
    In addition to methylmercury, exposure to elemental mercury can 
also pose health risks. Elemental mercury primarily causes health 
effects when it is breathed as a vapor that can be absorbed through the 
lungs. These exposures can occur when elemental mercury is spilled or 
products that contain elemental mercury break, resulting in release of 
mercury to the air, particularly in warm or poorly-ventilated indoor 
spaces.
    For a more detailed summary of background information (e.g., 
chemistry, environmental fate, exposure pathways, and health and 
environmental effects), as well as references pertaining to elemental 
mercury that EPA considered before proposing this rule, please refer to 
EPA's proposed SNUR for mercury switches in motor vehicles, issued in 
the Federal Register of July 11, 2006 (71 FR 39035)(FRL-7733-9), or in 
the docket for the 2006 proposal under docket ID number EPA-HQ-OPPT-
2005-0036. All documents in the docket are listed in the docket's index 
which is available at http://www.regulations.gov.
    2. Mercury uses. Elemental mercury has been used in thousands of 
products and applications. Over the past two decades, there has been a 
dramatic drop in elemental mercury use by industries in the United 
States. In response to increased concerns about exposure to 
anthropogenic sources of mercury in the environment and also because of 
the availability of suitable mercury-free

[[Page 46710]]

products, Federal and State governments have made efforts to limit the 
use of elemental mercury in certain products. Various states have 
banned or restricted the manufacture or sale of products containing 
mercury, see http://www.epa.gov/epawaste/hazard/tsd/mercury/laws.htm. 
On October 7, 2007, EPA issued a final SNUR for elemental mercury used 
in convenience light switches, anti-lock braking system switches, and 
active ride control system switches in certain motor vehicles (72 FR 
56903).
    In the past, elemental mercury was used in the manufacture of flow 
meters, natural gas manometers, and pyrometers. The latest information 
available to EPA indicates that the manufacture of these mercury-
containing articles has ceased (Ref. 1). EPA requests comments on 
whether elemental mercury continues to be used in manufacturing 
(including importing into the United States) flow meters, natural gas 
manometers, or pyrometers. EPA also requests comment on whether 
elementary mercury is being used in the remanufacturing of any of these 
articles that remain in use.
    3. Flow meters containing elemental mercury. Flow meters are 
instruments which measure the flow rate of liquids or gases. 
Historically, they have been used in civil service applications, e.g., 
water treatment plants, sewage plants, and power stations. Flow meters 
contained up to 5 kilograms (kg) of elemental mercury. At present, the 
sale of mercury-containing flow meters is banned in six states: 
California, Maine, Massachusetts, New Hampshire, New York, and Vermont 
(Ref. 4). Many mercury-free alternatives exist, including differential 
pressure meters, positive displacement meters, velocity meters, and 
mass meters. EPA found sufficient information to conclude that mercury-
containing flow meters are no longer manufactured in or imported into 
the United States (Ref. 1).
    4. Natural gas manometers containing elemental mercury. A manometer 
is an instrument used to measure the pressure of gases or liquids. For 
purposes of this proposed rule, a natural gas manometer means a 
mercury-containing instrument used in the natural gas industry to 
measure the pressure differential of natural gas in a pipeline. Mercury 
manometers have been used in the natural gas industry on individual 
wells, pipeline junctions, pipeline manifolds, compressor stations, and 
distribution points. The manometers contain between 3.2 and 54.5 kg of 
mercury. A common design for manometers is a U-shaped tube with one end 
opened to the atmosphere and the other connected to a process. 
Contained in the tube is a liquid (mercury, in the past). Pressure 
differential is measured by comparing the liquid levels in each of the 
two vertical sections of the tube. Seven states have enacted broad bans 
on the sale of mercury manometers (Ref. 4), and Louisiana prohibits the 
sale of mercury-containing natural gas manometers (Ref. 2). Available 
information indicates that bellows orifice meters have replaced mercury 
meters in the natural gas industry. EPA found sufficient information to 
conclude that mercury-containing manometers are no longer manufactured 
in or imported into the United States (Ref. 1).
    5. Pyrometers containing elemental mercury. A pyrometer is an 
instrument that is similar to a thermometer but is typically used to 
measure extremely high temperatures in industrial processes such as in 
foundries, for pottery and ceramic kiln work, and in automotive 
applications. Historically, pyrometers contained mercury in sensing 
units in amounts ranging between 5 and 10 grams of mercury. In recent 
years, California, Maine, Massachusetts, New Hampshire, New York, and 
Vermont have banned the sale of mercury-containing pyrometers (Ref. 4). 
EPA found sufficient information to conclude that mercury-containing 
pyrometers are no longer manufactured, or imported into the U.S. (Ref. 
1).
    6. Potential exposure and release. The typical lifecycle of flow 
meters, natural gas manometers, and pyrometers includes several stages: 
Manufacture, distribution in commerce, use, and waste management 
(landfilling or recycling). At any point in the lifecycle, there is 
potential for mercury to be released as liquid or vapor. Workers and 
others can be exposed to the mercury and it can be released into water, 
air, or onto land as the mercury is transported, stored, and handled 
during manufacturing. While the flow meters, manometers, and pyrometers 
are in use, the mercury can vaporize or spill due to breakage during 
transport, installation, maintenance, refilling, or repair. Beginning 
in the 1920s, mercury-containing manometers were used in the Louisiana 
natural gas industry. Mercury from these manometers has been identified 
as a source of soil contamination. (Ref. 3). Other opportunities for 
release can occur at the end of the lifecycle of flow meters, 
manometers, and pyrometers, as the devices are removed from equipment 
and facilities, and handled during waste management.

B. Proposed Action

    EPA is proposing to designate as significant new uses use of 
elemental mercury in flow meters, natural gas manometers, or 
pyrometers. However, use of elemental mercury in these articles when 
they are in service as of the effective date of the final rule would 
not be covered as a significant new use under this proposed SNUR. 
Proposed definitions of ``flow meter,'' ``natural gas manometer,'' and 
``pyrometer'' can be found at 40 CFR 721.10068 of the regulatory text 
for this proposal.
    This action would amend 40 CFR 721.10068 and require persons who 
intend to manufacture or process elemental mercury for a use designated 
by this proposed rule as a significant new use to notify EPA at least 
90 days before commencing the manufacturing or processing of elemental 
mercury for such significant new use. The required notification would 
provide EPA with the opportunity to evaluate the intended use and, if 
necessary, to prohibit or limit that activity before it occurs.
    For this SNUR, EPA is proposing not to include the general 
``article'' exemption at 40 CFR 721.45(f). Thus, persons importing or 
processing elemental mercury (including when part of an article) for a 
significant new use would be subject to the notification requirements 
of 40 CFR 721.25. EPA proposes not to include this exemption because 
flow meters, natural gas manometers, and pyrometers are articles, and a 
primary concern associated with this SNUR is potential exposures 
associated with the lifecycle of these uses. Further, it is possible to 
reclaim elemental mercury from certain articles, which could be used to 
produce flow meters, natural gas manometers, and pyrometers. EPA notes 
that, in accordance with TSCA section 12(a) and 40 CFR 721.45(g), 
persons who manufacture or process elemental mercury solely for export 
would be exempt from the notification requirements of 40 CFR 721.25, if 
when distributing the substance in commerce, it is labeled in 
accordance with TSCA section 12(a)(1)(B). Further, EPA notes that the 
exemption from the TSCA section 12(b) notification requirements for 
exported articles (see 40 CFR 707.60(b)) would remain in force. Thus, 
persons who export elemental mercury as part of an article would not be 
required to provide export notification.
    EPA believes elemental mercury is no longer used to manufacture 
flow meters, natural gas manometers, or pyrometers, but some of these 
articles may remain in service in the United States. EPA believes the 
ongoing use of such

[[Page 46711]]

articles, including some maintenance and servicing activities, falls 
outside the regulation of significant new uses, and EPA has clarified 
this in the proposed rule text. Thus, the manufacturing and processing 
of elemental mercury for use in these articles, provided they are in 
service as of the effective date of the final rule, would not be 
covered by the rule. For example, if an article that is in service as 
of the effective date of the final rule is removed from service for 
maintenance or servicing, including the addition of new mercury, and 
then placed back into service, any manufacturing or processing of 
mercury associated with that maintenance or servicing would not be 
covered by the rule. Otherwise, the addition of new mercury to these 
existing articles after the effective date of the final rule could 
potentially trigger a significant new use notice under this proposed 
rule (e.g., if it involved processing of the mercury), which is not 
EPA's intent.

IV. Rationale and Objectives

A. Rationale

    As summarized in Unit III.A., EPA has concerns regarding the 
environmental fate and the exposure pathways that lead to the presence 
of methylmercury in fish and the consumption of mercury-contaminated 
fish by humans and wildlife. EPA is encouraged by the discontinuation 
of the use of elemental mercury in the manufacturing of flow meters, 
natural gas manometers, and pyrometers. However, EPA is concerned that 
the manufacturing or processing of elemental mercury for use in flow 
meters, natural gas manometers, or pyrometers could be reinitiated in 
the future. Accordingly, EPA wants the opportunity to evaluate and 
control, where appropriate, activities associated with those uses, if 
such manufacturing or remanufacturing were to occur again. The required 
notification provided by a SNUN would provide EPA with the opportunity 
to evaluate activities associated with a significant new use and an 
opportunity to protect against unreasonable risks, if any, from 
exposure to mercury.

B. Objectives

    Based on the considerations in Unit IV.A., EPA has the following 
objectives with regard to the significant new uses that are designated 
in this proposed rule:
    1. EPA would receive notice of any person's intent to manufacture 
or process elemental mercury for any of the described significant new 
uses before that activity begins.
    2. EPA would have an opportunity to review and evaluate data 
submitted in a SNUN before the notice submitter begins manufacturing or 
processing of elemental mercury for any of the described significant 
new uses.
    3. EPA would be able to regulate prospective manufacturers or 
processors of elemental mercury before the described significant new 
uses of the chemical substance occur, provided that regulation is 
warranted pursuant to TSCA sections 5(e), 5(f), 6 or 7.

V. Significant New Use Determination

    Section 5(a)(2) of TSCA states that EPA's determination that a use 
of a chemical substance is a significant new use must be made after 
consideration of all relevant factors including:
     The projected volume of manufacturing and processing of a 
chemical substance.
     The extent to which a use changes the type or form of 
exposure of human beings or the environment to a chemical substance.
     The extent to which a use increases the magnitude and 
duration of exposure of human beings or the environment to a chemical 
substance.
     The reasonably anticipated manner and methods of 
manufacturing, processing, distribution in commerce, and disposal of a 
chemical substance.
    In addition to these factors enumerated in TSCA section 5(a)(2), 
the statute authorizes EPA to consider any other relevant factors.
    To determine what would constitute a significant new use of 
elemental mercury, EPA considered the four factors listed in section 
5(a)(2) of TSCA. The latest information available to EPA indicates that 
there is no ongoing use of elemental mercury in the manufacture or 
remanufacture of flow meters, natural gas manometers, or pyrometers. 
Resumption of these uses of elemental mercury could result in a 
significant increase in the magnitude and duration of exposure to 
workers and the surrounding environment at facilities of all types in 
the lifecycle, as well as an increase in releases which could 
contribute additional mercury to the atmosphere for long-range 
transport. Resumption of these uses could also result in exposures to 
workers who had not previously worked in these facilities when 
elemental mercury was commonly used, as well as exposures to workers 
who are not currently being exposed to mercury in the manufacture of 
flow meters, natural gas manometers, or pyrometers. Increases in 
mercury releases could lead to increases in mercury concentrations in 
the environment and reduction in overall ecosystem and human health 
from consumption of mercury-contaminated fish.
    EPA believes that any of these renewed uses of elemental mercury 
would increase the magnitude and duration of exposure to humans and the 
environment over that which would otherwise exist. Based upon the 
relevant factors as discussed in this Unit, EPA has determined that any 
manufacturing or processing of elemental mercury for use in flow 
meters, natural gas manometers, or pyrometers is a significant new use.

VI. Alternatives

    Before proposing this SNUR, EPA considered the following 
alternative regulatory actions:

A. Promulgate a TSCA Section 8(a) Reporting Rule

    Under a TSCA section 8(a) rule, EPA could, among other things, 
generally require persons to report information to the Agency when they 
intend to manufacture or process a listed chemical for a specific use 
or any use. However, for elemental mercury used in flow meters, natural 
gas manometers, and pyrometers, the use of TSCA section 8(a) rather 
than SNUR authority would have several limitations. First, if EPA were 
to require reporting under TSCA section 8(a) instead of TSCA section 
5(a), EPA would not have the opportunity to review human and 
environmental hazards and exposures associated with the proposed 
significant new use and, if necessary, take immediate follow-up 
regulatory action under TSCA sections 5(e) or 5(f) to prohibit or limit 
the activity before it begins. In addition, EPA may not receive 
important information from small businesses, because such firms 
generally are exempt from TSCA section 8(a) reporting requirements. In 
view of the level of health and environmental concerns about elemental 
mercury, if used for the proposed significant new use, EPA believes 
that a TSCA section 8(a) rule for this substance would not meet EPA's 
regulatory objectives.

B. Regulate Elemental Mercury for Use in Flow Meters, Natural Gas 
Manometers, and Pyrometers Under TSCA Section 6

    EPA may regulate under TSCA section 6 if ``the Administrator finds 
that there is a reasonable basis to conclude that the manufacture, 
processing, distribution in commerce, use or disposal of a chemical 
substance or mixture . . . presents or will present an unreasonable 
risk of injury to health or the environment.'' (TSCA section

[[Page 46712]]

6(a)) Given that elemental mercury is no longer being used in the 
manufacture of flow meters, natural gas manometers, or pyrometers, EPA 
concluded that risk management action under TSCA section 6 is not 
necessary at this time. This proposed SNUR would allow the Agency to 
address the potential risks associated with the proposed significant 
new use.

C. Allow the Exemption for Persons Who Import or Process Elemental 
Mercury as Part of Articles That Could be Subject to the SNUR

    Under the SNUR exemption provision at 40 CFR 721.45(f), a person 
who imports or processes a substance covered by a SNUR identified in 
subpart E of part 721 as part of an article is not generally subject to 
the notification requirements of Sec. 721.25 for that substance. 
However, EPA is concerned that exempting articles would render the SNUR 
less effective because of the possibility that flow meters, natural gas 
manometers, or pyrometers containing elemental mercury could be 
imported or processed for uses subject to this proposed SNUR without 
the submission of a SNUN. Because mercury-containing flow meters, 
natural gas manometers and pyrometers are the primary concerns in this 
SNUR, EPA wishes to include not only bulk elemental mercury but also 
these and other articles when they contain elemental mercury imported 
or processed for a significant new use. Thus, EPA is proposing to 
promulgate this rule without the exemption generally provided for in 
Sec. 721.45(f).

VII. Applicability of Rule to Uses Occurring Before Effective Date of 
the Final Rule

    As discussed in the Federal Register of April 24, 1990 (55 FR 
17376), EPA has decided that the intent of section 5(a)(1)(B) of TSCA 
is best served by designating a use as a significant new use as of the 
date of publication of the proposed rule rather than as of the 
effective date of the final rule. If uses begun after publication of 
the proposed rule were considered ongoing rather than new, it would be 
difficult for EPA to establish SNUR notice requirements, because a 
person could defeat the SNUR by initiating the proposed significant new 
use before the rule became final, and then argue that the use was 
ongoing as of the effective date of the final rule. Thus, persons who 
begin commercial manufacture or processing of the chemical substance 
that would be regulated through this proposed rule, if finalized, would 
have to cease any such activity before the effective date of the rule 
if and when finalized. To resume their activities, these persons would 
have to comply with all applicable SNUR notice requirements and wait 
until the notice review period, including all extensions, expires. EPA 
has promulgated provisions to allow persons to comply with this SNUR 
before the effective date. If a person were to meet the conditions of 
advance compliance under Sec.  721.45(h), that person would be 
considered to have met the requirements of the final SNUR for those 
activities.

VIII. Test Data and Other Information

    EPA recognizes that TSCA section 5 does not require developing any 
particular test data before submission of a SNUN. Persons are required 
only to submit test data in their possession or control and to describe 
any other data known to or reasonably ascertainable by them (15 U.S.C. 
2604(d); 40 CFR 721.25). However, as a general matter, EPA recommends 
that SNUN submitters include data that would permit a reasoned 
evaluation of risks posed by the chemical substance during its 
manufacture, processing, use, distribution in commerce, or disposal. 
EPA encourages persons to consult with the Agency before submitting a 
SNUN. As part of this optional pre-notice consultation, EPA would 
discuss specific data it believes may be useful in evaluating a 
significant new use. SNUNs submitted for significant new uses without 
any test data may increase the likelihood that EPA will take action 
under TSCA section 5(e) to prohibit or limit activities associated with 
this chemical.
    SNUN submitters should be aware that EPA will be better able to 
evaluate SNUNs that provide detailed information on:
    1. Human exposure and environmental releases that may result from 
the significant new uses of the chemical substance.
    2. Potential benefits of the chemical substance.
    3. Information on risks posed by the chemical substances compared 
to risks posed by potential substitutes.

IX. SNUN Submissions

    SNUNs must be mailed to the Environmental Protection Agency, OPPT 
Document Control Office (7407M), 1200 Pennsylvania Avenue, NW., 
Washington, D.C. 20460-0001. Information must be submitted in the form 
and manner set forth in EPA Form No. 7710-25. This form is available 
from the Environmental Assistance Division (7408M), 1200 Pennsylvania 
Avenue, NW., Washington, D.C. 20460-0001 (see 40 CFR 721.25 and 
720.40). Forms and information are also available electronically at 
http://www.epa.gov/opptintr/newchems/pubs/pmnforms.htm.

X. Economic Analysis

    EPA has evaluated the potential costs of establishing SNUR 
reporting requirements for potential manufacturers and processors of 
the chemical substance included in this proposed rule (Ref. 1). EPA's 
economic analysis (Ref. 1), which is briefly summarized here, is 
available in the docket for this proposed rule.
    The costs of submission of a SNUN will not be incurred by any 
company until a company decides to pursue a significant new use as 
defined in this proposed SNUR. In the event that a SNUN is submitted, 
costs are estimated at approximately $8,000 per SNUN submission, and 
includes the cost for preparing and submitting the SNUN, and the 
payment of a user fee. Businesses that submit a SNUN are either subject 
to a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they 
are a small business with annual sales of less than $40 million when 
combined with those of the parent company (if any), a reduced user fee 
of $100 (40 CFR 700.45(b)(1)). In its evaluation of this rule, EPA also 
considered the potential costs a company might incur by avoiding or 
delaying the significant new use in the future, but these costs have 
not been quantified.
    In addition to comments on all aspects of this proposal, the Agency 
is specifically interested in comments and supporting information on 
the following questions related to assumptions used in the Agency's 
analysis:
    Do you know of any current domestic production of mercury flow 
meters for the uses defined as significant in this rule that EPA 
missed? If yes, please provide detailed information.
    Are mercury flow meters currently available in the market place for 
the uses defined as significant in this rule? If yes, please provide 
detailed information.
     Does the analysis capture the lost option value of mercury flow 
meters? If no, please provide specific information that you believe 
should be included.
    Are the costs for preparing and submitting a SNUN comparable to the 
costs for preparing and submitting a PMN? If not, in what ways is it 
different?
    Providing supporting and detailed information for comments on these 
points will be used by EPA to review

[[Page 46713]]

related assumptions in the economic analysis as it prepares the final 
rule.

XI. References

    The following documents are specifically referenced in the preamble 
for this rulemaking. In addition to these documents, other materials 
may be available in the docket established for this rulemaking under 
Docket ID No. EPA-HQ-OPPT-2008-0483, which you can access through 
www.regulations.gov. Those interested in the information considered by 
EPA in developing this proposed rule, should also consult documents 
that are referenced in the documents that EPA has placed in the docket, 
regardless of whether the other documents are physically located in the 
docket.
    1. EPA, 2008b. Economic Analysis for the Proposed Significant New 
Use Rule for Mercury-Containing Flow Meters, Nanometers, and 
Pyrometers. Washington, D.C. OPPT/EETD/EPAB, July 21, 2009.
    2. La. Sess. Law Serv. Act 126 (S.B. 615)
    3. State of Louisiana Mercury Risk Reduction Plan, prepared by the 
Louisiana Department of Environmental Quality, 2007. Available as of 
September 1, 2008 at http://www.ldeq.org/portal/Portals/0/organization/
MercuryReportforweb.pdf
    4. Mercury Reduction & Education Legislation in the IMERC-Member 
States, prepared by Terri Goldberg and Adam Wienert, NEWMOA, June 2008. 
Available as of January 8, 2009 at http://www.newmoa.org/prevention/
mercury/imerc/legislation-2008.htm

XII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

     Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Office of Management and 
Budget (OMB) has determined that this proposed SNUR is a ``significant 
regulatory action,'' because it meets the criteria in section 3(f) of 
the Executive Order. Accordingly, this action was submitted to the OMB 
for review under Executive Order 12866 and any changes made based on 
OMB recommendations have been documented in the public docket for this 
rulemaking as required by section 6(a)(3)(E) of the Executive Order.

B. Paperwork Reduction Act

    According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., an Agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information that requires OMB 
approval under the PRA, unless it has been approved by OMB and displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations in Title 40 of the CFR, after appearing in the Federal 
Register, are listed in 40 CFR, part 9, and included on the related 
collection instrument, or form, if applicable.
    The information collection requirements related to this action have 
already been approved by OMB pursuant to the PRA under OMB control 
number 2070-0038 (EPA ICR No. 1188). This action does not impose any 
burden requiring additional OMB approval. If an entity were to submit a 
SNUN to the Agency, the annual burden is estimated to average 110 hours 
per response. This burden estimate includes the time needed to review 
instructions, search existing data sources, gather and maintain the 
data needed, and complete, review, and submit the required SNUN.
    Send any comments about the accuracy of the burden estimate, and 
any suggested methods for minimizing respondent burden, including 
through the use of automated collection techniques, to the Director, 
Collection Strategies Division, Office of Environmental Information 
(2822T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, D.C. 20460-0001. Please remember to include the OMB control 
number in any correspondence, but do not submit any completed forms to 
this address.

C. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that promulgation 
of this SNUR would not have a significant adverse economic impact on a 
substantial number of small entities. The rationale supporting this 
conclusion is as follows. A SNUR applies to any person (including small 
or large entities) who intends to engage in any activity described in 
the rule as a ``significant new use.'' By definition of the word 
``new,'' and based on all information currently available to EPA, it 
appears that no small or large entities presently engage in such 
activity. Since this proposed SNUR would require a person who intends 
to engage in such activity in the future to first notify EPA by 
submitting a SNUN, no economic impact will occur unless someone files a 
SNUN to pursue a significant new use in the future or forgoes profits 
by avoiding or delaying the significant new use. Although some small 
entities may decide to conduct such activities in the future, EPA 
cannot presently determine how many, if any, there may be. However, 
EPA's experience to date is that, in response to the promulgation of 
over 1,000 SNURs, the Agency receives on average only 5 notices per 
year. Of those SNUNs submitted, only one appears to be from a small 
entity in response to any SNUR. Therefore, EPA believes that the 
potential economic impact of complying with this SNUR is not expected 
to be significant or adversely impact a substantial number of small 
entities. In a SNUR that published as a final rule on August 8, 1997 
(62 FR 42690)(FRL-5735-4), the Agency presented its general 
determination that proposed and final SNURs are not expected to have a 
significant economic impact on a substantial number of small entities, 
which was provided to the Chief Counsel for Advocacy of the Small 
Business Administration.

D. Unfunded Mandates Reform Act

    Based on EPA's experience with proposing and finalizing SNURs, 
State, local, and Tribal governments have not been impacted by these 
rulemakings, and EPA does not have any reason to believe that any 
State, local, or Tribal government would be impacted by this 
rulemaking. As such, EPA has determined that this regulatory action 
would not impose any enforceable duty, contain any unfunded mandate, or 
otherwise have any effect on small governments subject to the 
requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Public Law 104-4).

E. Executive Order 13132: Federalism

    This action would not have a substantial direct effect on States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, entitled 
Federalism (64 FR 43255, August 10, 1999).

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    This proposed rule would not have Tribal implications because it is 
not expected to have substantial direct effects on Indian Tribes. This 
proposed rule would not significantly or uniquely affect the 
communities of Indian Tribal governments, nor would it involve or 
impose any requirements that affect Indian Tribes. Accordingly, the

[[Page 46714]]

requirements of Executive Order 13175, entitled Consultation and 
Coordination with Indian Tribal Governments (65 FR 67249, November 6, 
2000), do not apply to this proposed rule.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), because this is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
this action does not address environmental health or safety risks 
disproportionately affecting children.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
entitled Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), 
because this action is not expected to affect energy supply, 
distribution, or use.

I. National Technology Transfer Advancement Act

    Since this action does not involve any technical standards; section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), does 
not apply to this action.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental 
justice related issues as delineated by Executive Order 12898, entitled 
Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, 
Reporting and recordkeeping requirements

    Dated: August 25, 2009.
Wendy C. Hamnett,
Acting Director, Office of Pollution Prevention and Toxics.
    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:

PART 721--[AMENDED]

0
1. The authority citation for part 721 continues to read as follows:

    Authority: 15 U.S.C. 2604, 2607, 2625(c).

0
2. Section 721.10068 is amended by revising paragraph (a) and adding a 
new paragraph (b)(2)(vii) to read as follows:


Sec.  721.10068  Elemental mercury.

    (a) Definitions. The definitions in Sec. 721.3 apply to this 
section. In addition, the following definition applies:
    (1) Motor vehicle has the meaning found at 40 CFR 85.1703.
    (2) Flow meter means an instrument used in various applications to 
measure the flow rate of liquids or gases.
    (3) Natural gas manometer means an instrument used in the natural 
gas industry to measure gas pressure.
    (4) Pyrometer means an instrument used in various applications to 
measure extremely high temperatures.
    (b)* * *
    (2)* * *
    (vii) Manufacturing or processing of elemental mercury for use in 
flow meters, natural gas manometers, and pyrometers except for use in 
these articles when they are in service as of September 11, 2009.
* * * * *

[FR Doc. E9-21894 Filed 9-10-09; 8:45 am]

BILLING CODE 6560-50-S
