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1 EO12866_MercurySNUR-3-NPRM_2010-11-08.doc

2 BILLING CODE 6560–50–P

3 ENVIRONMENTAL PROTECTION AGENCY

4 40 CFR Part 721

5 [EPA–HQ–OPPT–2008–0483; FRL–XXXX–X]

6 RIN 2070-AJ71

7 Elemental Mercury Used in Barometers, Manometers, Hygrometers, and 

8 Psychrometers; Significant New Use Rule

9 AGENCY: Environmental Protection Agency (EPA).

10 ACTION: Proposed rule.

11 SUMMARY: EPA is proposing a significant new use rule (SNUR) under section 5(a)(2) 

12 of the Toxic Substances Control Act (TSCA) for elemental mercury for use in 

13 barometers, manometers, and hygrometers/psychrometers. This action would require 

14 persons who intend to manufacture (including import) or process elemental mercury for

15 an activity that is designated as a significant new use by this proposed rule to notify EPA 

16 at least 90 days before commencing that activity. The required notification would 

17 provide EPA with the opportunity to evaluate the intended use and, if necessary, to 

18 prohibit or limit that activity before it occurs. Not included in this proposed SNUR is 

19 mercury use in barometers, manometers, and hygrometers/psychrometers when they are

20 in service as of the publication date of this proposed rule; and mercury use in portable, 

21 battery-powered, motor-aspirated psychrometers that contain fewer than 7 grams of 

22 elemental mercury because they are currently manufactured. For this proposed rule, the 

23 general SNUR exemption for persons that import or process chemical substances as part 

24 of an article at 40 CFR 721.45(f) would not apply. 
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25

26 DATES: Comments must be received on or before [insert date 60 days after date of 

27 publication in the Federal Register].

28 ADDRESSES: Submit your comments, identified by docket identification (ID) number 

29 EPA–HQ–OPPT–2008-0483, by one of the following methods:

30 • Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line 

31 instructions for submitting comments.

32 • Mail: Document Control Office (7407M), Office of Pollution Prevention and 

33 Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 

34 Washington, DC 20460–0001.

35 • Hand Delivery: OPPT Document Control Office (DCO), EPA East Bldg., Rm. 

36 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number 

37 EPA–HQ–OPPT–2008-0483. The DCO is open from 8 a.m. to 4 p.m., Monday through 

38 Friday, excluding legal holidays. The telephone number for the DCO is (202) 564–8930. 

39 Such deliveries are only accepted during the DCO’s normal hours of operation, and 

40 special arrangements should be made for deliveries of boxed information.

41 Instructions: Direct your comments to docket ID number EPA–HQ–OPPT–2008-

42 0483. EPA's policy is that all comments received will be included in the docket without 

43 change and may be made available on-line at http://www.regulations.gov, including any 

44 personal information provided, unless the comment includes information claimed to be 

45 Confidential Business Information (CBI) or other information whose disclosure is 

46 restricted by statute. Do not submit information that you consider to be CBI or otherwise 

47 protected through regulations.gov or e-mail. The regulations.gov website is an 

48 “anonymous access” system, which means EPA will not know your identity or contact 
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49 information unless you provide it in the body of your comment. If you send an e-mail 

50 comment directly to EPA without going through regulations.gov, your e-mail address 

51 will be automatically captured and included as part of the comment that is placed in the

52 docket and made available on the Internet. If you submit an electronic comment, EPA 

53 recommends that you include your name and other contact information in the body of 

54 your comment and with any disk or CD-ROM you submit. If EPA cannot read your 

55 comment due to technical difficulties and cannot contact you for clarification, EPA may 

56 not be able to consider your comment. Electronic files should avoid the use of special 

57 characters, any form of encryption, and be free of any defects or viruses.

58 Docket: All documents in the docket are listed in the docket index available at 

59 http://www.regulations.gov. Although listed in the index, some information is not 

60 publicly available, e.g., CBI or other information whose disclosure is restricted by statute. 

61 Certain other material, such as copyrighted material, will be publicly available only in 

62 hard copy. Publicly available docket materials are available electronically at 

63 http://www.regulations.gov, or, if only available in hard copy, at the OPPT Docket. The 

64 OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West

65 Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading 

66 Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 

67 legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 

68 566–1744, and the telephone number for the OPPT Docket is (202) 566–0280. Docket 

69 visitors are required to show photographic identification, pass through a metal detector,

70 and sign the EPA visitor log. All visitor bags are processed through an X-ray machine

71 and subject to search. Visitors will be provided an EPA/DC badge that must be visible at 

72 all times in the building and returned upon departure.
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73 FOR FURTHER INFORMATION CONTACT: For technical information contact:

74 Sue Slotnick, National Program Chemicals Division, Office of Pollution Prevention and 

75 Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, 

76 DC 20460–0001; telephone number: (202) 556–1973; e-mail address: 

77 slotnick.sue@epa.gov.

78 For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South 

79 Clinton Ave., Rochester, NY 14620; telephone number: (202) 554–1404; e-mail address: 

80 TSCA-Hotline@epa.gov.

81 SUPPLEMENTARY INFORMATION:

82 I. General Information

83 A. Does this Action Apply to Me?

84 You may be potentially affected by this action if you manufacture (defined by 

85 statute to include import) or process elemental mercury used in barometers, manometers, 

86 or hygrometers/psychrometers. Potentially affected entities may include, but are not 

87 limited to:

88 • Manufacturers of instruments and related products for measuring, displaying, 

89 and controlling industrial process variables (North American Industrial Classification 

90 System (NAICS) code 334513)

91 This listing is not intended to be exhaustive, but rather provides a guide for 

92 readers regarding entities likely to be affected by this action. Other types of entities not 

93 listed in this unit could also be affected. The North American Industrial Classification 

94 System (NAICS) codes have been provided to assist you and others in determining 

95 whether this action might apply to certain entities. If you have any questions regarding 

96 the applicability of this action to a particular entity, consult the technical person listed 
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97 under FOR FURTHER INFORMATION CONTACT.

98 This action may also affect certain entities through pre-existing import 

99 certification and export notification rules under TSCA. Persons who import any 

100 chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 

101 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 

102 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that 

103 the shipment of the chemical substance complies with all applicable rules and orders 

104 under TSCA, including any SNUR requirements. The EPA policy in support of import 

105 certification appears at 40 CFR part 707, subpart B. In addition, any persons who export 

106 or intend to export a chemical substance that is the subject of this proposed rule on or 

107 after [insert date 30 days after the date of publication in the Federal Register] are subject 

108 to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), (see 40 

109 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 

110 707, subpart D. Note that as of January 1, 2013, the Mercury Export Ban Act of 2008 

111 prohibits the export of elemental mercury from the United States (see TSCA section

112 12(c) (15 U.S.C. 2611(c)).

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

114 1. Submitting CBI. Do not submit this information to EPA through

115 regulations.gov or e-mail. Clearly mark the part or all of the information that you claim 

116 to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the 

117 outside of the disk or CD-ROM as CBI and then identify electronically within the disk or 

118 CD-ROM the specific information that is claimed as CBI. In addition to one complete 

119 version of the comment that includes information claimed as CBI, a copy of the comment 

120 that does not contain the information claimed as CBI must be submitted for inclusion in 
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121 the public docket. Information so marked will not be disclosed except in accordance with 

122 procedures set forth in 40 CFR part 2.

123 2. Tips for preparing your comments. When submitting comments, remember to:

124 i. Identify the document by docket ID number and other identifying information 

125 (subject heading, Federal Register date and page number).

126 ii. Follow directions. The Agency may ask you to respond to specific questions or 

127 organize comments by referencing a Code of Federal Regulations (CFR) part or section 

128 number.

129 iii. Explain why you agree or disagree; suggest alternatives and substitute 

130 language for your requested changes.

131 iv. Describe any assumptions and provide any technical information and/or data 

132 that you used.

133 v. If you estimate potential costs or burdens, explain how you arrived at your 

134 estimate in sufficient detail to allow for it to be reproduced.

135 vi. Provide specific examples to illustrate your concerns and suggest alternatives.

136 vii. Explain your views as clearly as possible, avoiding the use of profanity or 

137 personal threats.

138 viii. Make sure to submit your comments by the comment period deadline 

139 identified.

140 II. Background

141 A. What Action is the Agency Taking?

142 This proposed SNUR would require persons to notify EPA at least 90 days before 

143 commencing the manufacture, import, or processing of elemental mercury for any of the 

144 following significant new uses: barometers, manometers, and 
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145 hygrometers/psychrometers. Not included in this proposed rule are barometers,

146 manometers, and hygrometers/psychrometers when they are in service as of the 

147 publication date of this proposed rule. Also not included in this proposal is the ongoing 

148 use of mercury in the manufacture, import, or processing of portable battery-powered 

149 motor-aspirated psychrometers that contain fewer than 7 grams of elemental mercury 

150 because they are currently manufactured. Finally, manometers used in the natural gas 

151 industry would not be affected by this rule because they were included in a previous 

152 SNUR(75 FR 42330, July 21, 2010). 

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

154 Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that 

155 a use of a chemical substance is a "significant new use." EPA must make this 

156 determination by rule after considering all relevant factors, including those listed in 

157 TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a 

158 significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant 

159 new use notice (SNUN) to EPA at least 90 days before they manufacture or process the 

160 chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). As described in Unit II.C., 

161 the general SNUR provisions are found at 40 CFR Part 721, Subpart A. 

162 C. Applicability of General Provisions

163

164 General provisions for SNURs appear under 40 CFR part 721, subpart A. These 

165 provisions describe persons subject to the rule, recordkeeping requirements, exemptions 

166 to reporting requirements, and applicability of the rule to uses occurring before the 

167 effective date of the final rule. However, 40 CFR 721.45(f) would not apply to this 

168 proposed SNUR. As a result, persons subject to the provisions of this proposed rule 

169 would not be exempt from significant new use reporting if they import or process 
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170 elemental mercury as part of an article (see 40 CFR 721.5). Conversely, the exemption 

171 from notification requirements for exported articles (see 40 CFR 707.60(b)) would 

172 remain in force. Thus, persons who export elemental mercury as part of an article would 

173 not be required to provide export notification.

174 Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 

175 721.1(c), persons subject to SNURs must comply with the same notice requirements and 

176 EPA regulatory procedures as submitters of Premanufacture Notices (PMNs) under 

177 TSCA section 5(a)(1)(A). In particular, these requirements include the information 

178 submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by 

179 TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. 

180 Once EPA receives a SNUN, the Agency may take regulatory action under TSCA section 

181 5(e), 5(f), 6, or 7 to control the activities on which it has received the SNUN. If EPA 

182 does not take action, the Agency is required under TSCA section 5(g) to explain in the 

183 Federal Register its reasons for not taking action.

184 Persons who export or intend to export a chemical substance identified in a 

185 proposed or final SNUR are subject to the export notification provisions of TSCA section 

186 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, 

187 subpart D. Persons who import a chemical substance identified in a final SNUR are 

188 subject to the TSCA section 13 import certification requirements, codified at 19 CFR 

189 12.118 through 12.127; see also 19 CFR 127.28. Such persons must certify that the 

190 shipment of the chemical substance complies with all applicable rules and orders under 

191 TSCA, including any SNUR requirements. The EPA policy in support of import 

192 certification appears at 40 CFR part 707, subpart B.

193 III. Summary of Proposed Rule
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194 A. Overview of Mercury and Mercury Uses

195 1. Mercury. This proposed rule applies to elemental mercury (CAS No. 7439–

196 97–6), which is a naturally occurring element. Because of its unique properties (e.g., 

197 exists as a liquid at room temperature and forms amalgams with many metals), elemental 

198 mercury has been used in many industrial processes and consumer products. In addition 

199 to its useful characteristics, mercury also is known to cause adverse health effects in 

200 humans and wildlife. These effects can vary depending on the form of mercury to which 

201 a person or animal is exposed, as well as the magnitude, duration, and frequency of 

202 exposure. 

203 The most prevalent human and wildlife exposure to mercury results from

204 ingesting fish contaminated with methylmercury. Methylmercury is an organo-metallic

205 compound that is formed via the conversion of elemental or inorganic mercury 

206 compounds by certain microorganisms and other natural processes. For example, 

207 elemental mercury may evaporate and be emitted into the atmosphere. Atmospheric 

208 mercury can then be deposited directly into water bodies or watersheds, where it can be 

209 washed into surface waters via overland run-off. Once deposited in sediments, certain 

210 microorganisms and other natural processes can convert elemental mercury into 

211 methylmercury. Methylmercury bioaccumulates, which means that it is taken up and 

212 concentrated in the tissues of aquatic, mammalian, avian, and other wildlife. 

213 Methylmercury is a highly toxic substance; a number of adverse health effects associated 

214 with exposure to it have been identified in humans and in animal studies. Most extensive 

215 are the data on neurotoxicity, particularly in developing organisms. Fetuses, infants, and 

216 young children generally are more sensitive to methylmercury’s neurological effects than 

217 adults.
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218 In 2004, EPA and the Food and Drug Administration (FDA) issued a national 

219 consumption advisory concerning mercury in fish. The advisory contains recommended 

220 limits on the amount of certain types of fish and shellfish that pregnant women and young 

221 children can safely consume. By 2005, all fifty states had issued fish consumption 

222 advisories for fish from certain water bodies known to be contaminated by 

223 methylmercury http://www.epa.gov/mercury/advisories.htm.

224 In addition to methylmercury, exposure to elemental mercury can also pose health 

225 risks. Elemental mercury primarily causes health effects when it is breathed as a vapor

226 that can be absorbed through the lungs. These exposures can occur when elemental 

227 mercury is spilled or products that contain elemental mercury break, resulting in release 

228 of mercury to the air, particularly in warm or poorly-ventilated indoor spaces. 

229 For a more detailed summary of background information (e.g., chemistry, 

230 environmental fate, exposure pathways, and health and environmental effects), as well as 

231 references pertaining to elemental mercury that EPA considered before proposing this 

232 rule, please refer to EPA’s proposed SNUR for mercury switches in motor vehicles, 

233 issued in the Federal Register of July 11, 2006, or in the docket for the 2006 proposal 

234 under docket identification number EPA-HQ-OPPT-2005-0036. All documents in the 

235 docket are listed in the docket's index, which is available at http://www.regulations.gov.

236 2. Mercury uses. Elemental mercury has been used in thousands of products and 

237 applications. Over the past two decades, there has been a dramatic drop in elemental 

238 mercury use by industries in the United States. In response to increased concerns about 

239 exposure to anthropogenic sources of mercury in the environment and also because of the 

240 availability of suitable mercury-free products, Federal and State governments have made 

241 efforts to limit the use of elemental mercury in certain products. Various states have 
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242 banned or restricted the manufacture or sale of products containing mercury. See

243 http://www.epa.gov/epawaste/hazard/tsd/mercury/laws.htm. 

244 On October 7, 2007, EPA issued a final SNUR for elemental mercury used in 

245 convenience light switches, anti-lock braking system switches, and active ride control 

246 system switches in certain motor vehicles (72 FR 56903, July 11, 2006). EPA 

247 promulgated another SNUR for flow meters, natural gas manometers, and pyrometers on 

248 July 21, 2010 (75 FR 42330). EPA is also considering regulatory actions on mercury 

249 products that are currently manufactured. 

250 In the past, elemental mercury was used in the manufacture of barometers,

251 manometers, and hygrometers/psychrometers. The latest information available to EPA 

252 indicates that the manufacture (including import) of these mercury-containing articles has

253 ceased (with the exception of one psychrometer as described at Unit III.A.5.). EPA 

254 requests comments on whether elemental mercury continues to be used in manufacturing 

255 (including importing into the U.S.) barometers, manometers, or 

256 hygrometers/psychrometers. EPA also requests comment on whether elementary mercury 

257 is being used in the remanufacturing of any of these articles that remain in use. 

258 3. Barometers containing elemental mercury. Barometers are instruments which 

259 measure atmospheric pressure. Mercury barometers were manufactured as a long 

260 cylindrical tube, typically closed at one end, with a mercury-filled reservoir at the base. 

261 The weight of mercury created a vacuum at the top of the tube, and the mercury adjusted 

262 until the pressure inside the reservoir equaled the atmospheric pressure. Rising mercury 

263 indicated increasing air pressure while dropping mercury indicated decreasing air 

264 pressure. Historically, mercury barometers were used in applications where measuring 

265 and monitoring changes in air pressure are important, such as weather stations, airports, 
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266 and ships. Additional uses include scientific demonstration in schools and non-mercury 

267 device calibration. A mercury barometer contains between 400 and 620 grams of 

268 mercury (Ref.1).

269 Alternatives to mercury-containing barometers include aneroid, electronic, and 

270 other liquid-based (water or eco-celli) barometers. At least eight states have banned the 

271 sale of mercury-containing barometers. EPA found sufficient information to conclude 

272 that mercury-containing barometers are no longer manufactured in or imported into the 

273 U.S. (Ref.1).

274 4. Manometers containing elemental mercury. A manometer is an instrument 

275 used to measure pressure of gases or liquids. Mercury-containing manometers were 

276 manufactured for use in sectors such as dairy farms, Heating Ventilation and Air 

277 Conditioning/Plumbing Installation and Repair, Auto/Motorcycle Industry, laboratories 

278 and in general industrial uses. The amount of mercury used in a single manometer 

279 ranged between approximately 150 kg and 525 kg (Ref. 1).

280 Alternatives to mercury manometers include hydrostatic gauges using mercury-free 

281 liquid, aneroid manometers, needle-bourdon gauges and digital manometers. At least 

282 five states have banned the sale of mercury-containing manometers, and four additional 

283 states have banned the sale of mercury-containing dairy manometers (Ref. 1 ). EPA 

284 found sufficient information to conclude that mercury-containing manometers are no 

285 longer manufactured in or imported into the U.S. (Ref. 1). 

286 5. Hygrometers/psychrometers containing elemental mercury. Hygrometers are 

287 instruments used to measure relative humidity (i.e., the moisture content of the air). 

288 Psychrometers, which are the most common type of hygrometer, use two mercury-added 

289 thermometers, one with a wetted base, and one with a dry base. Hygrometers and 
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290 psychrometers function similarly; however, they are used in different applications. 

291 Historically, mercury-containing hygrometers were used for cigar and tobacco humidors, 

292 or in residential settings, while mercury-containing psychrometers were used by 

293 atmospheric scientists and weather enthusiasts. The amount of mercury in a single 

294 hygrometer or psychrometer was between three and seven grams. 

295 There are two types of alternatives to mercury-added hygrometers that are readily 

296 available and widely used: spirit-filled devices, which use methyl alcohol or citrus oil 

297 thermometers and provide results with comparable accuracy to mercury-added 

298 thermometers; and digital devices, which use electronic sensors to measure humidity 

299 changes and, when calibrated properly, provide as accurate results as mercury devices.

300 Seven states have banned the sale and distribution of mercury-containing hygrometers 

301 and psychrometers and three additional states have general phase-outs of mercury-added 

302 products. EPA found sufficient information to conclude that only one type of mercury303 containing hygrometer/psychrometer is manufactured in or imported into the U.S. 

304 Portable, battery-powered, motor-aspirated psychrometers containing fewer than 7 grams 

305 of elemental mercury continue to be manufactured in the U.S. (Ref. 1). EPA is 

306 considering whether risk management or other actions would be appropriate for the one 

307 type of psychrometer that is still in use.

308 6. Potential exposure and release. The typical lifecycle of barometers, 

309 manometers, and hygrometers/psychrometers includes several stages: manufacture, 

310 distribution in commerce, use, and waste management (landfilling or recycling). At any 

311 point in the lifecycle, there is potential for mercury to be released as liquid or vapor. 

312 Workers and others can be exposed to the mercury and it can be released into water, air, 

313 or onto land as the mercury is transported, stored, and handled during manufacturing. 
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314 While the barometers, manometers, and hygrometers/psychrometers are in use, the 

315 mercury can vaporize or spill due to breakage during transport, installation, maintenance, 

316 refilling, or repair. Other opportunities for release can occur at the end of the lifecycle of 

317 barometers, manometers, and hygrometers/psychrometers as these devices are removed 

318 from equipment and facilities, and handled during waste management.

319 B. Proposed Action 

320 EPA is proposing to designate as significant new uses the use of elemental 

321 mercury in barometers, manometers, and hygrometers/psychrometers. However, use of 

322 elemental mercury in these articles when they are in service as of the publication date of 

323 this proposed rule would not be covered as a significant new use under this proposed 

324 SNUR. Also, use of mercury in portable, battery-powered, motor-aspirated 

325 psychrometers that contain fewer than 7 grams of mercury is an ongoing use and 

326 therefore would not be covered by this SNUR. Due to EPA’s concern about use of 

327 mercury in products, the Agency may take other action to facilitate the evaluation or 

328 control of ongoing uses, as appropriate. For the portable, battery-powered, motor329 aspirated psychrometers that contain fewer than 7 grams of mercury, EPA is considering 

330 whether risk management or other actions would be appropriate. Use of mercury in 

331 manometers used in the natural gas industry would not be affected by this proposed 

332 SNUR because they are included in a previous SNUR. (75 FR 42330, July 21, 2010). 

333 Proposed definitions of “barometer,” “manometer,” “hygrometer” and “psychrometer” 

334 can be found at 40 CFR 721.10068 of the regulatory text at the end of this proposed rule. 

335 This action would amend 40 CFR 721.10068 and require persons who intend to 

336 manufacture or process elemental mercury for a use designated by this proposed rule as a

337 significant new use to notify EPA at least 90 days before commencing the manufacturing 
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338 or processing of elemental mercury for such significant new use. The required 

339 notification would provide EPA with the opportunity to evaluate the intended use and, if 

340 necessary, to prohibit or limit that activity before it occurs. 

341 For this SNUR, EPA is proposing not to include the general “article” exemption 

342 at 40 CFR 721.45(f). Thus, persons importing or processing elemental mercury 

343 (including when part of an article) for a significant new use would be subject to the 

344 notification requirements of 40 CFR 721.25. EPA proposes not to include this exemption 

345 because barometers, manometers, and hygrometers/psychrometers are articles, and a 

346 primary concern associated with this SNUR is potential exposures associated with the 

347 lifecycle of these uses. Further, it is possible to reclaim elemental mercury from certain 

348 articles, which could be used to produce barometers, manometers, or 

349 hygrometers/psychrometers. EPA notes that, in accordance with TSCA section 12(a) and 

350 40 CFR 721.45(g), persons who manufacture or process elemental mercury solely for 

351 export would be exempt from the notification requirements of 40 CFR 721.25, if when 

352 distributing the substance in commerce, it is labeled in accordance with TSCA section 

353 12(a)(1)(B). Further, EPA notes that the exemption from the TSCA section 12(b) 

354 notification requirements for exported articles (see 40 CFR 707.60(b)) would remain in 

355 force. Thus, persons who export elemental mercury as part of an article would not be 

356 required to provide export notification.

357 EPA believes elemental mercury is no longer used to manufacture barometers, 

358 manometers, and hygrometers/psychrometers (with one exception as discussed), but 

359 some of these articles may remain in service in the United States. The ongoing use of 

360 such articles, including some maintenance and servicing activities, falls outside of the 

361 scope of this significant new use rule. Thus, the manufacturing and processing of 
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362 elemental mercury for use in these articles, provided they are in service as of the 

363 publication date of this proposed rule, would not be covered by the rule. For example, if 

364 an article that is in service as of the publication date of this proposed rule is removed 

365 from service for maintenance or servicing, including the addition of new mercury, and 

366 then placed back into service, any manufacturing or processing of mercury associated 

367 with that maintenance or servicing would not be covered by the rule. Otherwise, the 

368 addition of new mercury to these existing articles after the effective date of this proposed

369 rule could potentially trigger a significant new use notice under this proposed rule (e.g., if 

370 it involved processing of the mercury), which is not EPA's intent. 

371 IV. Rationale and Objectives

372 A. Rationale

373 As summarized in Unit III.A., EPA has concerns regarding the environmental fate 

374 and the exposure pathways of elemental mercury that lead to the presence of 

375 methylmercury in fish and the consumption of mercury-contaminated fish by humans and 

376 wildlife. EPA is encouraged by the general discontinuation of the use of elemental 

377 mercury in the manufacturing of barometers, manometers, and 

378 hygrometers/psychrometers. However, EPA is concerned that the manufacturing or 

379 processing of elemental mercury for the proposed significant new uses could be 

380 reinitiated in the future. Accordingly, EPA wants the opportunity to evaluate and control, 

381 where appropriate, activities associated with those uses, if such manufacturing or 

382 remanufacturing were to occur again. The required notification provided by a SNUN 

383 would provide EPA with the opportunity to evaluate activities associated with a 

384 significant new use and an opportunity to protect against unreasonable risks, if any, from 

385 exposure to mercury.
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386 B. Objectives

387 Based on the considerations in Unit IV.A., EPA has the following objectives with 

388 regard to the significant new uses that are designated in this proposed rule:

389 1. EPA would receive notice of any person’s intent to manufacture or process 

390 elemental mercury for any of the described significant new uses before that activity 

391 begins.

392 2. EPA would have an opportunity to review and evaluate data submitted in a

393 SNUN before the notice submitter begins manufacturing or processing of elemental

394 mercury for any of the described significant new uses.

395 3. EPA would be able to regulate prospective manufacturers or processors of 

396 elemental mercury before the described significant new uses of the chemical substance 

397 occur, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6 or 7.

398 V. Significant New Use Determination

399 Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical 

400 substance is a significant new use must be made after consideration of all relevant factors 

401 including:

402 • The projected volume of manufacturing and processing of a chemical substance

403 • The extent to which a use changes the type or form of exposure of human 

404 beings or the environment to a chemical substance 

405 • The extent to which a use increases the magnitude and duration of exposure of

406 human beings or the environment to a chemical substance 

407 • The reasonably anticipated manner and methods of manufacturing, processing,

408 distribution in commerce, and disposal of a chemical substance 

409 In addition to these factors enumerated in TSCA section 5(a)(2), the statute 
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410 authorizes EPA to consider any other relevant factors.

411 To determine what would constitute a significant new use of elemental mercury,

412 EPA considered the four factors listed in section 5(a)(2) of TSCA. The latest information 

413 available to EPA indicates that there is no ongoing use of elemental mercury in the 

414 manufacture or remanufacture of barometers, manometers, hygrometers, and all but one 

415 type of psychrometer. Resumption of these uses of elemental mercury could result in a 

416 significant increase in the magnitude and duration of exposure to workers and the 

417 surrounding environment at facilities of all types in the lifecycle, as well as an increase in 

418 releases which could contribute additional mercury to the atmosphere for long-range 

419 transport. Resumption of these uses could also result in exposures to workers who had 

420 not previously worked in these facilities when elemental mercury was commonly used, as 

421 well as exposures to workers who are not currently being exposed to mercury in the 

422 manufacture of barometers, manometers, or hygrometers/psychrometers. Increases in 

423 mercury releases could lead to increases in mercury concentrations in the environment 

424 and reduction in overall ecosystem and human health from consumption of mercury425 contaminated fish.

426 EPA believes that any of these renewed uses of elemental mercury would increase 

427 the magnitude and duration of exposure to humans and the environment over that which 

428 would otherwise exist. Based upon the relevant factors as discussed in this Unit, EPA has 

429 preliminarily determined that any manufacturing or processing of elemental mercury for 

430 use in barometers, manometers, or hygrometers/psychrometers is a significant new use, 

431 except for mercury use in barometers, manometers, and hygrometers/psychrometers

432 when they are in service as of the effective date of this proposed rule; and in portable, 

433 battery-powered, motor-aspirated psychrometers that contain less than 7 grams of 
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434 elemental mercury. 

435 VI. Alternatives

436 Before proposing this SNUR, EPA considered the following alternative regulatory 

437 actions: 

438 A. Promulgate a TSCA section 8(a) reporting rule. 

439 Under a TSCA section 8(a) rule, EPA could, among other things, generally 

440 require persons to report information to the Agency when they intend to manufacture or 

441 process a listed chemical for a specific use or any use. However, for elemental mercury 

442 used in barometers, manometers, and hygrometers/psychrometers, the use of TSCA 

443 section 8(a) rather than SNUR authority would have several limitations. First, if EPA 

444 were to require reporting under TSCA section 8(a) instead of TSCA section 5(a), EPA 

445 would not have the opportunity to review human and environmental hazards and 

446 exposures associated with the proposed significant new use and, if necessary, take 

447 immediate follow-up regulatory action under TSCA sections 5(e) or 5(f) to prohibit or 

448 limit the activity before it begins. In addition, EPA may not receive important 

449 information from small businesses, because such firms generally are exempt from TSCA 

450 section 8(a) reporting requirements. In view of the level of health and environmental 

451 concerns about elemental mercury, if used for the proposed significant new use, EPA 

452 believes that a TSCA section 8(a) rule for this substance would not meet EPA's 

453 regulatory objectives. 

454 B. Regulate elemental mercury for use in barometers, manometers, and 

455 hygrometers/psychrometers under TSCA section 6. 

456 EPA may regulate under TSCA section 6 if "the Administrator finds that there is a 

457 reasonable basis to conclude that the manufacture, processing, distribution in commerce, 
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458 use or disposal of a chemical substance or mixture . . . presents or will present an 

459 unreasonable risk of injury to health or the environment." (TSCA section 6(a)). Given 

460 that elemental mercury is no longer being used in the manufacture of barometers, 

461 manometers, or hygrometers/psychrometers (with the exception of one psychrometer), 

462 EPA concluded that risk management action under TSCA section 6 is not necessary at 

463 this time. This proposed SNUR would allow the Agency to address the potential risks 

464 associated with the proposed significant new use. Note that EPA is also considering 

465 whether risk management or other regulatory action may be appropriate for the one 

466 remaining psychrometer use.

467 C. Allow the Exemption for Persons that Import or Process Elemental Mercury as Part 

468 of Articles that Could be Subject to the SNUR. 

469 Under the SNUR exemption provision at 40 CFR 721.45(f), a person who imports 

470 or processes a substance covered by a SNUR identified in subpart E of part 721 as part of 

471 an article is not generally subject to the notification requirements of §721.25 for that 

472 substance. However, EPA is concerned that exempting articles would render the SNUR 

473 less effective because of the possibility that barometers, manometers, and 

474 hygrometers/psychrometers containing elemental mercury could be imported or 

475 processed for uses subject to this proposed SNUR without the submission of a SNUN. 

476 Because mercury-containing barometers, manometers, and hygrometers/psychrometers

477 are the primary concerns in this SNUR, EPA wishes to include not only bulk elemental 

478 mercury but also these and other articles when they contain elemental mercury imported 

479 or processed for a significant new use. Thus, EPA is proposing to promulgate this rule 

480 without the exemption generally provided for in §721.45(f).

481
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482 VII. Applicability of Rule to Uses Occurring Before Effective Date of the Final Rule

483 As discussed in the Federal Register of April 24, 1990 (55 FR 17376), EPA has 

484 decided that the intent of section 5(a)(1)(B) of TSCA is best served by designating a use 

485 as a significant new use as of the date of publication of this proposed rule rather than as 

486 of the effective date of the final rule. If uses begun after publication of the proposed rule 

487 were considered ongoing rather than new, it would be difficult for EPA to establish 

488 SNUR notice requirements, because a person could defeat the SNUR by initiating the 

489 proposed significant new use before the rule became final, and then argue that the use 

490 was ongoing as of the effective date of the final rule. Thus, persons who begin 

491 commercial manufacture or processing of the chemical substance that would be regulated 

492 through this proposed rule, if finalized, would have to cease any such activity before the 

493 effective date of the rule if and when finalized. To resume their activities, these persons 

494 would have to comply with all applicable SNUR notice requirements and wait until the 

495 notice review period, including all extensions, expires. EPA has promulgated provisions 

496 to allow persons to comply with this SNUR before the effective date. If a person were to 

497 meet the conditions of advance compliance under section 721.45(h), that person would be 

498 considered to have met the requirements of the final SNUR for those activities.

499 VIII. Test Data and Other Information

500 EPA recognizes that TSCA section 5 does not require the development of any 

501 particular test data before submission of a SNUN. There are two exceptions: 1) 

502 development of test data is required where the chemical substance subject to the SNUR is 

503 also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)); and 2) 

504 development of test data may be necessary where the chemical substance has been listed 

505 under TSCA section 5(b)(4) (see TSCA section 5(b)(2)). In the absence of a section 4 
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506 test rule or a section 5(b)(4) listing covering the chemical substance, persons are required 

507 only to submit test data in their possession or control and to describe any other data 

508 known to or reasonably ascertainable by them (TSCA section 5(d); 40 CFR 721.25 and 

509 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters 

510 include data that would permit a reasoned evaluation of risks posed by the chemical 

511 substance during its manufacture, processing, use, distribution in commerce, or disposal. 

512 EPA encourages persons to consult with the Agency before submitting a SNUN. As part 

513 of this optional pre-notice consultation, EPA would discuss specific data it believes may 

514 be useful in evaluating a significant new use. SNUNs submitted for significant new uses 

515 without any test data may increase the likelihood that EPA will take action under TSCA 

516 section 5(e) to prohibit or limit activities associated with this chemical. 

517 SNUN submitters should be aware that EPA will be better able to evaluate 

518 SNUNs that provide detailed information on: 

519 1. Human exposure and environmental releases that may result from the 

520 significant new uses of the chemical substance.

521 2. Potential benefits of the chemical substance.

522 3. Information on risks posed by the chemical substances compared to risks 

523 posed by potential substitutes. 

524 IX. SNUN Submissions 

525 SNUNs must be submitted to EPA on EPA Form No. 7710-25 in accordance with 

526 the procedures set forth in §§ 721.25 and 720.40. This form is available from the 

527 Environmental Assistance Division, (7408M), 1200 Pennsylvania Ave., NW., 

528 Washington, DC 20460-0001. Forms and information are also available electronically at 

529 http://www.epa.gov/opptintr/newchems.
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530 X. Economic Analysis

531 EPA has evaluated the potential costs of establishing SNUR reporting 

532 requirements for potential manufacturers and processors of the chemical substance 

533 included in this proposed rule (Ref. 1). EPA’s economic analysis (Ref. 1), which is 

534 briefly summarized here, is available in the docket for this proposed rule. 

535 The costs of submission of a SNUN would not be incurred by any company until 

536 a company decides to pursue a significant new use as defined in this proposed SNUR. In 

537 the event that a SNUN is submitted, costs are estimated at approximately $8,100 per 

538 SNUN submission, and include the cost to prepare and submit the SNUN, and the 

539 payment of a user fee. Businesses that submit a SNUN would be subject to either a 

540 $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small business with 

541 annual sales of less than $40 million when combined with those of the parent company (if 

542 any), a reduced user fee of $100 (40 CFR 700.45(b)(1)). In its evaluation of this rule, 

543 EPA also considered the potential costs a company might incur by avoiding or delaying 

544 the significant new use in the future, but these costs have not been quantified. 

545 XI. References

546 The following document is specifically referenced in the preamble for this 

547 rulemaking. In addition to this document, other materials may be available in the docket 

548 established for this rulemaking under Docket ID No. EPA-HQ-OPPT-2008-0483, which 

549 you can access through www.regulations.gov. Those interested in the information 

550 considered by EPA in developing this proposed rule, should also consult documents that 

551 are referenced in the documents that EPA has placed in the docket, regardless of whether 

552 the other documents are physically located in the docket.

553 1. EPA, 2010. Economic Analysis of the Proposed Significant New Use Rule for 
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554 Mercury-Containing Barometers, Manometers, Hygrometers, and Psychrometers,

555 Washington, D.C. OPPT/EETD/EPAB, July 16, 2010.

556

557

558 III. Statutory and Executive Order Reviews

559 A. Regulatory Planning and Review

560

561 Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 

562 51735, October 4, 1993), the Office of Management and Budget (OMB) has determined 

563 that this action is a "significant regulatory action." Accordingly, EPA submitted this 

564 action to OMB for review under Executive Order 12866 and any changes made in 

565 response to OMB recommendations have been documented in the docket for this action 

566 as required by section 6(a)(3)(E) of the Executive Order. 

567 B. Paperwork Reduction Act

568 According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., an 

569 Agency may not conduct or sponsor, and a person is not required to respond to a 

570 collection of information that requires OMB approval under the PRA, unless it has been 

571 approved by OMB and displays a currently valid OMB control number. The OMB 

572 control numbers for certain EPA regulations in title 40 of the CFR, after appearing in the 

573 Federal Register, are listed in 40 CFR part 9, and included on the related collection 

574 instrument, or form, if applicable. 

575 The information collection requirements related to this action have already been 

576 approved by OMB pursuant to the PRA under OMB control number 2070-0038 (EPA 

577 ICR No. 1188). This action does not impose any burden requiring additional OMB 

578 approval. If an entity were to submit a SNUN to the Agency, the annual burden is 
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579 estimated to average 97 hours per response. This burden estimate includes the time 

580 needed to review instructions, search existing data sources, gather and maintain the data 

581 needed, and complete, review, and submit the required SNUN. 

582 Send any comments about the accuracy of the burden estimate, and any suggested 

583 methods for minimizing respondent burden to the Director, Collection Strategies 

584 Division, Office of Environmental Information (2822T), Environmental Protection 

585 Agency, 1200 Pennsylvania Ave., NW., Washington, D.C. 20460-0001. Please 

586 remember to include the OMB control number in any correspondence, but do not submit 

587 any completed forms to this address. 

588 C. Small Entity Impacts

589 Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 

590 et seq.), the Agency hereby certifies that promulgation of this SNUR would not have a 

591 significant adverse economic impact on a substantial number of small entities. The 

592 rationale supporting this conclusion is as follows. 

593 Under the RFA, small entities include small businesses, small organizations, and 

594 small governmental jurisdictions. Small entity is defined in accordance with section 601 

595 of the RFA as: A small business as defined by the Small Business Administration’s 

596 (SBA) regulations at 13 CFR 121.201; A small governmental jurisdiction that is a 

597 government of a city, county, town, school district or special district with a population of 

598 less than 50,000; and A small organization that is any not-for-profit enterprise which is 

599 independently owned and operated and is not dominant in its field. For purposes of 

600 assessing the impacts of this proposed rule on small entities, EPA has determined that 

601 this proposed rule is not expected to impact any small not-for-profit organizations or 

602 small governmental jurisdictions. As such, the Agency estimated potential impacts on 
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603 small business.

604 A SNUR applies to any person (including small or large entities) who intends to 

605 engage in any activity described in the rule as a "significant new use." By definition of 

606 the word "new," and based on all information currently available to EPA, it appears that 

607 no small or large entities presently engage in such activity. Since this proposed SNUR 

608 would require a person who intends to engage in such activity in the future to first notify 

609 EPA by submitting a SNUN, no economic impact will occur unless someone files a 

610 SNUN to pursue a significant new use in the future or forgoes profits by avoiding or 

611 delaying the significant new use. Although some small entities may decide to conduct 

612 such activities in the future, EPA cannot presently determine how many, if any, there 

613 may be. However, EPA's experience to date is that, in response to the promulgation of 

614 over 1,000 SNURs, the Agency receives on average only 5 notices per year. Of those 

615 SNUNs submitted, only one appears to be from a small entity in response to any SNUR. 

616 Therefore, EPA believes that the potential economic impact of complying with a SNUR 

617 is not expected to be significant or adversely impact a substantial number of small 

618 entities. In a SNUR that published as a final rule on August 8, 1997 (62 FR 42690)(FRL619 5735-4), the Agency presented its general determination that proposed and final SNURs 

620 are not expected to have a significant economic impact on a substantial number of small 

621 entities, which was provided to the Chief Counsel for Advocacy of the Small Business 

622 Administration.

623 D. Unfunded Mandates 

624 Based on EPA's experience with proposing and finalizing SNURs, State, local, 

625 and Tribal governments have not been impacted by these rulemakings, and EPA does not 

626 have any reason to believe that any State, local, or Tribal government would be impacted 
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627 by this rulemaking. As such, EPA has determined that this regulatory action would not 

628 impose any enforceable duty, contain any unfunded mandate, or otherwise have any 

629 effect on small governments subject to the requirements of sections 202, 203, 204, or 205 

630 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538).

631 E. Federalism

632 This action would not have federalism implications because it is not expected to 

633 have a substantial direct effect on States, on the relationship between the national 

634 government and the States, or on the distribution of power and responsibilities among the

635 various levels of government, as specified in Executive Order 13132, entitled Federalism

636 (64 FR 43255, August 10, 1999).

637 F. Indian Tribal Governments

638 This action would not have tribal implications as specified in Executive Order 

639 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 

640 67249, November 9, 2000). This action is not expected to have substantial direct effects 

641 on Indian Tribes, would not significantly or uniquely affect the communities of Indian 

642 Tribal governments, and would not involve or impose any requirements that affect Indian 

643 Tribes. Thus, Executive Order 13175 does not apply to this action. 

644 G. Protection of Children 

645 EPA interprets Executive Order 13045, entitled Protection of Children from 

646 Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), as applying 

647 only to those regulatory actions that concern health or safety risks, such that the analysis 

648 required under section 5-501 of the Executive Order has the potential to influence the 

649 regulation. This action is not subject to Executive Order 13045 because it would not 

650 establish an environmental standard intended to mitigate health or safety risks.
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651 H. Effect on Energy Supply, Distribution, or Use

652 This action is not a “significant energy action” as defined in Executive Order 

653 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, 

654 Distribution, or Use (66 FR 28355, May 22, 2001), because this action is not likely to 

655 have a significant adverse effect on the supply, distribution, or use of energy.

656 I. Technical Standards

657 Because this action would not involve any technical standards, section 12(d) of 

658 the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 

659 104-113, Section 12(d) (15 U.S.C. 272 note), does not apply to this action.

660 J. Environmental Justice 

661 This action would not entail special considerations of environmental justice 

662 related issues as delineated by Executive Order 12898, entitled Federal Actions to 

663 Address Environmental Justice in Minority Populations and Low-Income Populations (59 

664 FR 7629, February 16, 1994).

665 List of Subjects in 40 CFR Part 721

666 Environmental protection, Chemicals, Hazardous substances, Reporting and 

667 recordkeeping requirements.

668

669 Dated: ____________________

670 __________________________________________

671 Director, Office of Pollution Prevention and Toxics

672

673

674
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675 Therefore, it is proposed that 40 CFR chapter I be amended as follows:

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

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

678 2. By amending § 721.10068 by adding additional definitions to paragraph (a) and 

679 adding a new paragraph (b)(2)(viii) to read as follows:

680 § 721.10068 Elemental mercury.

681 (a) * * *

682 Barometer means an instrument used in various applications to measure 

683 atmospheric pressure. 

684 Manometer means an instrument used in various applications to measure pressure 

685 of gases or liquids.

686 Hygrometer or psychrometer means an instrument used in various applications to 

687 measure humidity of gases.

688 (b) * * * 

689 (2) * * *

690 (viii) Manufacturing or processing of elemental mercury for use in barometers, 

691 manometers, hygrometers, and psychrometers except for: natural gas manometers 

692 covered by paragraph (b)(2)(vii) of this section; barometers, manometers, hygrometers, 

693 and psychrometers when these articles are in service as of [insert date of publication of 

694 the proposed rule]; and portable battery powered and motor-aspirated psychrometers that 

695 contain fewer than 7 grams of elemental mercury.

696 [FR Doc. ??–????? Filed ??–??–??; ?:?? a.m.]