[Federal Register Volume 71, Number 132 (Tuesday, July 11, 2006)]
[Proposed Rules]
[Pages 39035-39046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10858]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 721
[EPA-HQ-OPPT-2005-0036; FRL-7733-9]
RIN 2070-AJ19
Mercury Switches in Motor Vehicles; 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) used in convenience light
switches, anti-lock braking system (ABS) switches, and active ride
control system switches in certain motor vehicles. This action would
require persons who intend to manufacture (including import) or process
mercury for these uses, including when mercury is imported or processed
as part of an article, to notify EPA at least 90 days before commencing
such activity. EPA believes that this action is necessary because
manufacturing, processing, use, or disposal of mercury switches may
produce significant changes in human and environmental exposures. The
required notice would provide EPA with the opportunity to evaluate the
use of mercury in these switches, and, if necessary, to prohibit or
limit such activity before it occurs to prevent unreasonable risk of
injury to human health or the environment.
DATES: Comments must be received on or before September 11, 2006.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2005-0036, 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, Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention:
Docket ID number EPA-HQ-OPPT-2005-0036. 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
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arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0036. EPA's policy is that all comments received will be included
in the public 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. 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 public 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. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
regulations.gov index. 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 either electronically
at http://www.regulations.gov or in hard copy at the OPPT Docket, EPA
Docket Center (EPA/DC), EPA West, Rm. B102, 1301 Constitution Ave.,
NW., Washington, DC. The EPA Docket Center Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280.
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: [email protected].
For technical information contact: Benjamin Lim, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-0481; e-mail
address: [email protected].
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 for
use in certain motor vehicle switches. Persons who intend to import any
chemical substance subject to TSCA must comply with the TSCA section 13
(15 U.S.C. 2612) import certification requirements, and the regulations
codified at 19 CFR 12.118 through 12.127 and 127.28. Those persons must
certify that they are in compliance with applicable rules or orders
under TSCA including any SNUR. 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 August 10, 2006 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. Potentially
affected entities may include, but are not limited to:
Manufacturers and processors of automotive electrical
switches (NAICS 335931), e.g., manufacturers and processors of mercury
switches in convenience lights, ABS acceleration sensors, and ride
control sensors.
Manufacturers and processors of transportation equipment
(NAICS 336), e.g., manufacturers of motor vehicles and motor vehicle
parts containing mercury switches.
Automotive repair and maintenance (NAICS 8111), e.g., auto
mechanics who replace or install new mercury switches as part of repair
and maintenance of vehicles.
Motor vehicle part (used) wholesalers (NAICS 4211), e.g.,
auto dismantlers who dismantle motor vehicles and sell used parts.
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 North American Industrial Classification System (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.
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 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 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 the estimate.
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vi. Provide specific examples to illustrate your concerns and
suggested 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 or processing of elemental
mercury for use in convenience light switches, ABS switches, and ride
control switches in certain motor vehicles, including when mercury is
imported or processed as part of such an article. EPA believes this
action is necessary because manufacturing, processing, use, or disposal
of mercury in these switches may produce significant changes in human
and environmental exposures.
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 section 5(a)(2) of TSCA.
Once EPA determines that a use of a chemical substance is a significant
new use and a SNUR is effective, 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 substance for that use.
C. Applicability of General Provisions
General provisions for SNURs appear in 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, Sec. 721.45(f) would not apply to this proposed SNUR.
As a result, persons subject to the provisions of this rule would not
be exempt from significant new use reporting if they imported or
processed elemental mercury as part of an article (see Sec. 721.5).
Provisions relating to user fees appear at 40 CFR part 700. Persons
subject to this proposed SNUR are required to comply with the same
notice requirements and EPA regulatory procedures as submitters of
premanufacture notices (PMNs) under section 5(a)(1)(A) of TSCA. Those
requirements include the information submission requirements of TSCA
sections 5(b) and 5(d)(1), the exemptions authorized by TSCA section
5(h)(1), (2), (3), and (5) and the regulations at 40 CFR part 720 (see
40 CFR 721.1(c)). Once EPA receives a significant new use notice
(SNUN), EPA may take regulatory action under TSCA sections 5(e), 5(f),
6 or 7, as appropriate, to control the activities described in the
SNUN. If EPA does not take action after receipt of a SNUN, EPA is
required under TSCA section 5(g) to explain in the Federal Register its
reasons for not taking action.
Persons who 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 implement TSCA
section 12(b) appear at 40 CFR part 707, subpart D. Persons who intend
to import a chemical substance identified in a final SNUR are subject
to the TSCA section 13 import certification requirements, which appear
at 19 CFR 12.118 through 12.127 and 127.28. Such persons must certify
that they are in compliance with TSCA requirements. The EPA policy on
import certification appears at 40 CFR part 707, subpart B.
III. Summary of Proposed Rule
A. Background
Because of its unique properties, elemental mercury has been used
in many industrial processes and consumer products. Mercury switches
exploit the ability of small quantities of mercury to conduct
electricity and remain one of the largest categories of mercury product
uses. In addition to its unique properties, mercury also may cause
adverse effects in humans and wildlife under certain conditions. These
effects can vary depending on the form of mercury to which a person is
exposed and the severity, level, and length of exposure. Most human and
wildlife exposure to mercury comes from eating fish contaminated with
methylmercury, an organic mercury compound that is formed when certain
microorganisms and other natural processes convert mercury to
methylmercury, which can accumulate in fish. Methylmercury is a highly
toxic organic form of mercury and can cause neurological impairment.
Fetuses, infants, and young children are more sensitive to mercury than
adults.
Mercury switches were used for many years in motor vehicles in hood
and trunk convenience lights, ABS, and ride control systems. In the
U.S., most motor vehicles that reach the end of their useful life are
dismantled, so that the useful parts can be reused, and steel and other
materials can be recycled. During the recycling process, the vehicles
are dismantled, crushed, shredded, and vehicle scrap is separated into
the ferrous, nonferrous, and auto shredder residue fractions. All of
these fractions have the potential to be contaminated with mercury
released when switches are ruptured during processing. The steel
fractions are sent to electric arc furnaces (EAFs) and other scrap
consumers to be melted and refined for use in steel products. These
processes use intense heat which can vaporize mercury. Mercury can then
be released in air emissions from these facilities. Motor vehicles are
believed to be the largest single source of mercury in EAF emissions.
EAFs are the largest manufacturing source of mercury air emissions in
the U.S. and the fourth largest of all U.S. sources.
Mercury in the air eventually settles into water or onto land where
it can be washed into water. Once mercury is deposited in sediment,
certain microorganisms and other processes in the environment can
convert some of it into methylmercury. Methylmercury persists in the
environment and can build up in fish, shellfish, and animals that eat
fish. The primary way that people and wildlife are exposed to mercury
is by eating methylmercury-contaminated fish. By 2004, forty-four
states, one territory, and two Indian tribes had issued fish
consumption advisories recommending that some people limit their
consumption of fish from certain waterbodies as a result of
methylmercury found in fish. The nervous system is particularly
sensitive to the adverse effects of methylmercury, with the developing
fetus and young child among those particularly at risk from exposure to
high amounts of methylmercury. For this reason, in 2004, EPA and the
Food and Drug Administration (FDA) jointly issued a national advisory
providing advice to women of childbearing age and young children on
mercury in fish and shellfish.
Because of increasing concerns about exposure to man-made sources
of mercury and the availability of suitable mercury-free alternatives,
attempts have been made at the Federal and state level to limit the use
of mercury in certain products. American automakers voluntarily
eliminated use of mercury switches in automobiles as of January 1,
2003. Those foreign auto manufacturers that had used mercury switches
have also eliminated this use. Over the next 20 years, most of the
automobiles containing mercury switches will reach
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the end of their life and be recycled, ultimately passing through EAFs
and other scrap consumers. Many states and non-governmental
organizations have taken actions to remove or encourage the removal of
mercury switches from automobiles before they are recycled. For these
reasons, the potential for mercury emissions being released from scrap
consumption will decrease as fewer automobiles containing mercury
switches remain to be processed into scrap.
While new automobiles are no longer being manufactured containing
mercury switches, some mercury switches are still available as
aftermarket replacement parts. Mercury switches generally last the
lifetime of the automobile; however, replacement is needed if a
collision or other action damages the component containing the switch.
Mercury switches are not still available for replacement in hood and
trunk convenience lights, because mercury-free switches can be easily
substituted as replacement parts. However, there is no existing
mercury-free alternative for mid-life replacement of ABS and ride
control switches. Therefore, a limited number of mercury ABS and ride
control switches will remain available as replacement parts for pre-
2003 automobiles. EPA is proposing to exclude from this proposed SNUR
mercury switches manufactured as aftermarket replacement parts for ABS
and ride control systems in vehicles manufactured before January 1,
2003. In addition to the fact that there are no feasible mercury-free
alternatives, EPA is aware that the demand for mercury switches as
aftermarket replacement parts is currently low and will become
negligible when most pre-2003 vehicles containing mercury switches in
ABS and ride control systems have reached the end of their lives.
B. Proposed Action
EPA believes that any resumption of manufacture or processing of
mercury for the significant new use would lead to an increase in
mercury emissions at EAFs and other facilities involved in scrap
recycling and consumption. Therefore, EPA is proposing to designate as
significant new uses manufacture or processing of elemental mercury for
the following:
Use in convenience light switches in new motor vehicles.
Use in convenience light switches as new aftermarket
replacement parts for motor vehicles.
Use in switches in ABS in new motor vehicles.
Use in switches in ABS as new aftermarket replacement
parts for motor vehicles that were manufactured after January 1, 2003.
Use in switches in active ride control systems in new
motor vehicles.
Use in switches in active ride control systems as new
aftermarket replacement parts for motor vehicles that were manufactured
after January 1, 2003.
EPA defines motor vehicle for this proposed SNUR by referencing the
definition used in the emissions control regulations developed under
the Clean Air Act (CAA). That definition, which is found at 40 CFR
85.1703, is as follows:
(a) For the purpose of determining the applicability of section
216(2), a vehicle which is self-propelled and capable of transporting a
person or persons or any material or any permanently or temporarily
affixed apparatus shall be deemed a motor vehicle, unless any one or
more of the criteria set forth below are met, in which case the vehicle
shall be deemed not a motor vehicle and excluded from the operation of
the Act:
(1) The vehicle cannot exceed a maximum speed of 25 miles per hour
over level, paved surfaces; or
(2) The vehicle lacks features customarily associated with safe and
practical street or highway use, such features including, but not being
limited to, a reverse gear (except in the case of motorcycles), a
differential, or safety features required by state and/or federal law;
or
(3) The vehicle exhibits features which render its use on a street
or highway unsafe, impractical, or highly unlikely, such features
including, but not being limited to, tracked road contact means, an
inordinate size, or features ordinarily associated with military combat
or tactical vehicles such as armor and/or weaponry.
(b) The Administrator will, from time to time, publish in the
Federal Register a list of vehicles which have been determined to be
excluded. This list will be in appendix VI of 40 CFR part 85.
This definition, which includes passenger cars, light duty trucks,
heavy duty vehicles, and motorcycles, encompasses most motor vehicles
intended for highway use. In addition to typical passenger cars such as
sedans and station wagons, the motor vehicle definition also includes
categories such as pickups, passenger and cargo vans, minivans, and
sport utility vehicles. The larger passenger carrying vehicles such as
buses as well as the larger freight carrying vehicles such as semi
trucks are also included. EPA believes that it is important to take
advantage of the regulated community's familiarity with the Air
Program's interpretation of ``motor vehicles.'' Should the current
definition of motor vehicle at 40 CFR 85.1703 be amended, the
definition used for this SNUR would change as a result. Should that
occur, and should EPA determine that the definition is no longer
appropriate for use in this SNUR, EPA could take appropriate action to
amend the regulatory text at Sec. 721.10068.
The Alliance of Automobile Manufacturers (AAM) is a trade
association representing nine new car and light truck manufacturers.
The AAM reports that all cars and light trucks built since 2003 are
free of mercury switches (Ref. 1). Foreign automobile manufacturers not
represented by the AAM discontinued the use of mercury auto switches in
the 1990s. The Truck Manufacturers Association has also indicated that
trucks have discontinued their use of all types of mercury switches
(Ref. 2). Passenger cars and light trucks account for about 96% of the
vehicles on the road and have been the primary focus of most efforts to
remove mercury switches from vehicles (Ref. 2). Although the other
types of motor vehicles have received less attention, EPA believes that
mercury switches are not being used in convenience lights, ABS, or ride
control systems in any new motor vehicles and that it is appropriate to
include them in this proposed SNUR. EPA requests comment on whether
there are mercury switches being used for convenience lights, ABS, or
ride control systems in any new vehicles that would be covered by the
proposed motor vehicle definition.
For this SNUR, EPA is proposing to lift the exemption at Sec.
721.45(f) so that persons importing or processing mercury as part of an
article would be subject to Sec. 721.5. EPA believes this exemption is
not appropriate to this SNUR because mercury-containing switches are
articles and should be covered by the SNUR. Furthermore, it is possible
to reclaim mercury from certain articles and use that mercury to
produce automotive switches. EPA is asking for comments on this
proposed approach. See Unit VII.D.
This proposed rule, when finalized, would require persons who
intend to manufacture or process elemental mercury for the significant
new uses identified in this action to submit a SNUN at least 90 days
before commencing such activity. The required notice would provide EPA
with the opportunity to evaluate the intended use, and if necessary, to
prohibit or limit that use before it occurs. Given that
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mercury switches are no longer being used in new motor vehicles and
given the availability of effective mercury-free alternatives, the
declining use of mercury in products, and the growing number of states
that have banned the use of mercury automotive switches, EPA believes
it is unlikely that companies would resume the use of automotive
mercury switches (Ref. 3). In the event that the decline in the use of
mercury switches as replacement parts in ABS and ride control systems
of pre-2003 motor vehicles does not progress as described in this
proposed rule, EPA may pursue additional regulatory action as
appropriate under TSCA sections 4, 6, and 8.
IV. Overview of Mercury and Mercury Auto Switches
There are several documents available which summarize the extensive
literature that exists on mercury. EPA's Mercury Report to Congress
(Ref. 4) provides a complete discussion of mercury as it was understood
in 1997. A ``Toxicological Profile for Mercury,'' which covers all
forms of mercury, is available from the Agency for Toxic Substances and
Disease Registry (ATSDR) (Ref. 5). EPA's Integrated Risk Information
System (IRIS), an electronic database of computer files containing
descriptive and quantitative information, peer-reviewed summaries, and
toxicological reviews, includes an entry for methylmercury (Ref. 6). A
thorough review of the human health effects of methylmercury can be
found in the National Research Council (NRC) of the National Academies
of Science report titled ``Toxicological Effects of Methylmercury''
(Ref. 7). More recently, the Regulatory Impact Analysis (RIA) of the
Clean Air Mercury Rule (CAMR) (Ref. 8), published in March 2005,
provides an update of much of the science as it relates to the effects
of mercury emissions. These documents are the major sources of the
information summarized in this unit.
A. Chemistry
This proposed rule applies to elemental mercury, which is a
naturally occurring element, CAS registry number 7439-97-6. The
properties and behavior of mercury are related to its three forms:
Elemental or metallic mercury, inorganic mercury compounds, and organic
mercury compounds. Elemental or metallic mercury, which is a silver-
white metal, is the pure form of mercury, not combined with any other
elements. Although elemental mercury is liquid at room temperature and
pressure, it vaporizes readily when exposed to air. Most of the mercury
in the atmosphere is elemental mercury vapor. Inorganic mercury
compounds take the form of mercury salts and are generally white powder
or crystals, with the exception of mercuric sulfide (cinnabar), which
is red. Organic mercury compounds, such as methylmercury, are formed
when mercury combines with carbon. In the air, elemental mercury vapor
can be transported, changed into other forms of mercury, and deposited
in water or soils in rain or snow. Most of the mercury in water, soil,
sediments, or biota are in the forms of inorganic mercury salts and
organic forms of mercury. Microscopic organisms convert inorganic
mercury into methylmercury, which is the most common organic mercury
compound found in the environment. Methylmercury is the form of mercury
that accumulates in the food chain. It can reach levels in fish that
can be toxic to people and wildlife who consume mercury-contaminated
fish (Ref. 5).
B. Environmental Fate
Mercury is well known as a highly persistent, bioaccumulative,
toxic pollutant that is widespread in the environment. Because it is a
naturally occurring element, it is present in the environment from
natural sources, such as weathering of rocks, as well as from
anthropogenic (human) activities, such as industrial combustion.
Mercury in the air eventually settles into water or onto land where it
can be washed into water. Once mercury is deposited in sediments,
certain microorganisms and other natural processes can convert some
portion of it into methylmercury, a highly toxic organic form of
mercury. While all forms of mercury can bioaccumulate, methylmercury
generally accumulates to a greater extent then other forms of mercury.
Methylmercury can build up (bioconcentrate) in fish, shellfish, and
animals that eat fish. The concentrations of methylmercury in organisms
higher in the food chain can be 10\4\ - 10\6\ times higher than the
original concentration of methylmercury in the water (Ref. 8). The
primary way people in the U.S. are exposed to mercury is by eating fish
containing methylmercury. By 2004, forty-four states, one territory,
and two Indian tribes had issued fish consumption advisories
recommending that some people limit their consumption of fish from
certain water bodies as a result of methylmercury found in fish (Ref.
9).
Studies have indicated that because mercury persists in the
environment and methylmercury biomagnifies up the foodchain, a wide
variety of species and ecosystems may be exposed to excessive levels of
mercury in the environment. Because of the complexity of the mercury
cycle, it is difficult to predict the original source of mercury found
at a given location. Mercury levels may be due to contributions from a
mix of local, regional, and long range mercury sources. Mercury from
all of these sources will be from both natural and anthropogenic
emissions. Although there is uncertainty as to the exact amount, EPA
has estimated that about 17% of U.S. mercury deposition is from U.S.
and Canadian man-made sources and about 83% is from global sources,
including natural, re-emitted, and international man-made sources (Ref.
10). A large anthropogenic source of mercury emissions is EAFs, which
release mercury vapor when they process scrap from old cars containing
mercury switches, among other items.
Mercury cycles through the atmosphere and ends up in watersheds, in
water bodies and sediment, and ultimately can accumulate in fish.
Mercury-contaminated fish may potentially be consumed by humans and
wildlife. Despite recent advances, current understanding does not allow
the prediction of specific ecosystem responses to mercury emissions.
The analyses conducted for the CAMR are based on the best available
information and are applicable here. Both the CAMR and this proposed
rule are concerned with the effects of mercury emissions from
anthropogenic sources. The CAMR RIA developed estimates for its
benefits analysis based on three elements:
Results from an ecosystem scale exposure model.
Results from an analysis of U.S. fishing activity.
Results from a study of mercury concentrations in consumer
fish species.
One of the conclusions of the ecosystem scale modeling was that the
best available science suggests that over the long term, changes in
mercury concentrations in freshwater fish will be proportional to
changes in mercury inputs. In water bodies where atmospheric deposition
of inorganic mercury is the major source of mercury, it is expected
that long term reductions in fish mercury concentrations will be
proportional to declines in atmospheric mercury deposition (Ref. 8).
While it is not currently possible to quantify ecological benefits, it
can be qualitatively stated that reduction in mercury emissions from
various sources could lead to improvements in overall ecosystem health
(Ref. 8). Applying similar logic, it can be qualitatively stated that
increases in mercury emissions could lead to increases in mercury
concentrations in the
[[Page 39040]]
environment and reduction in overall ecosystem health.
C. Exposure Pathways
Mercury exists in various forms and people are exposed to each in
different ways. Consumption of methylmercury-contaminated fish is the
most important nonoccupational source of mercury exposure to people in
the U.S. Episodes of severe methylmercury poisoning in Japan and Iraq
indicated that consumption of food contaminated with methylmercury
could be highly toxic to adults, children, and developing fetuses.
Mothers showing few if any signs of nervous system damage gave birth to
infants with severe disabilities, confirming that developing fetuses
were more sensitive to methylmercury than adults. Although these
situations described exposures to methylmercury far greater than those
from typical dietary consumption in the U.S., data from those episodes
as well as epidemiological studies have been used by EPA to support its
concerns about potential methylmercury exposures (Ref. 7).
In 2001, EPA confirmed its 1995 oral Reference Dose (RfD) for
methylmercury of 0.1 micrograms/kilogram ([mu]g/kg) body weight-day
(bw/d) as an exposure without recognized adverse effects (Ref. 6).
Consumption of fish with higher methylmercury levels can lead to
elevated mercury levels in the bloodstream and hair. Mercury in blood
and hair was measured as part of the 1999-2002 National Health and
Nutrition Examination Survey (NHANES). The 1999-2002 NHANES data showed
that about 6% of women of childbearing age (16-49 years of age) had
blood mercury concentrations greater than 5.8 [mu]g/L (which is a blood
mercury level equivalent to the current RfD) (Ref. 11).
Another less common human exposure pathway for mercury is breathing
elemental mercury vapor. This exposure can occur when elemental mercury
is released or when products that contain elemental mercury break and
release mercury to the air, particularly in warm or poorly-ventilated
indoor spaces. Inhalation of elemental mercury vapor is the main source
of occupational exposure to mercury. Industries that use elemental
mercury in their processes have had the largest occupational mercury
exposure; however, the imposition of workplace exposure limits on
mercury is expected to reduce worker exposure (Ref. 5). Workers may
also transport mercury home on contaminated clothing and shoes. There
have been reports of increased mercury exposure to children of workers
who are exposed in the workplace. Persons living near mercury
production, use, and disposal sites may be exposed to mercury that has
been released from these sites to the surrounding air, water, and soil
(Ref. 5).
Bioaccumulation of methylmercury up through the food chain is also
the most important exposure pathway for both aquatic and terrestrial
wildlife; although methylmercury bioaccumulates more strongly in
aquatic than in terrestrial ecosystems. In fish, methylmercury tissue
concentrations increase with increasing age and size of the fish.
Methylmercury-contaminated fish are then consumed by fish-eating
wildlife, which accumulate methylmercury to levels above those in the
original prey items. The methylmercury continues to concentrate as
fish-eating wildlife are consumed by larger predators. A well known
example of bioaccumulation through the food chain is the endangered
Florida panther, which was found to have elevated methylmercury levels
due to consumption of raccoons that were contaminated with
methylmercury from eating methylmercury-contaminated fish and shellfish
(Ref. 4).
Birds, particularly coastal species or those eating prey that feed
in estuaries, are most impacted by mercury contamination (Ref. 12). In
birds, tissue mercury concentrations associated with toxicity have been
found to be relatively similar, regardless of bird species, dietary
exposure level, and length of exposure. Frank neurological signs are
generally associated with brain mercury concentrations of 15 [mu]g/gram
(g) (wet weight) or higher and 30 [mu]g/g or more in liver and kidney
(Ref. 4). In mammals, levels of exposure that induce mercury poisoning
vary among species. Death occurs in sensitive land mammal species at
0.1-0.5 [mu]g/g bw/d, or 1.0-5.0 [mu]g/g in the diet (Ref. 4).
D. Health and Environmental Effects
The factors that determine how severe the health effects are from
mercury exposure include the chemical form of mercury, the dose, the
duration of exposure, the route of exposure (e.g., breathing, eating)
and the age and health of the person exposed. Both dietary and non-
dietary exposure to mercury can result in a variety of health effects.
In the extreme cases of methylmercury poisoning that occurred in Japan
and Iraq, some people who consumed methylmercury-contaminated food
developed permanent damage to the brain and kidneys (Ref. 5).
Nondietary exposure to elemental mercury vapors also affects the
nervous system. Different forms of mercury have different effects on
the nervous system, because they move through the body in different
ways. However, both ingestion of methylmercury and inhalation of
elemental mercury vapors can cause a variety of symptoms, including
personality changes (irritability, nervousness), tremors, changes in
vision, deafness, muscle incoordination, loss of sensation, and
difficulties with memory (Ref. 5). The nervous system of the developing
fetus appears to be the most sensitive target for adverse effects of
methylmercury. Prenatal mercury exposure may cause children to perform
poorly on neurobehavioral tests that measure attention, fine motor
function, language skills, visual-spatial abilities, and verbal memory
(Ref. 7).
Recent epidemiological studies exploring the relationship between
methylmercury and cardiovascular impacts in men have yielded
conflicting conclusions; however, there is enough information to
justify additional research on this topic. Some research also suggests
that exposure to methylmercury may lessen the beneficial effects of
fish consumption. Methylmercury has been classified as a ``possible''
human carcinogen, based on limited human and animal data. Additional
research is needed to corroborate studies that have suggested that
methylmercury exposure could result in genetic, reproductive, renal,
hematologic or immune system impacts (Ref. 4).
Both short-term exposure to high levels or long-term exposure to
lower levels of elemental mercury vapor can irritate the lining of the
mouth and the lungs. Other effects from exposure to elemental mercury
vapor include nausea, vomiting, diarrhea, increase in blood pressure or
heart rate, skin rashes, and eye irritation (Ref. 5).
In wildlife, mercury contamination has been shown to cause death as
well as sublethal effects. Although mercury consumption can result in
bird death, a variety of sublethal effects on reproduction and behavior
have been found to occur in birds at dietary concentrations well below
those that can cause overt toxicity (Ref. 4). Methylmercury
contamination in birds can adversely affect breeding by causing
reduction in the number of eggs laid and increased embryo mortality
(Ref. 12). Methylmercury attacks the central nervous system in
mammalian wildlife as well as in humans. Methylmercury ingestion can
also cause reduced food intake, weight loss, muscular atrophy and
damage to an animal's heart, lungs, liver, kidneys and stomach (Ref.
4). Mercury contamination has been documented in endangered species,
[[Page 39041]]
such as the Florida panther and the wood stork, as well as in
populations of loons, eagles, and furbearers such as mink and otters.
Recent assessments have concluded that mercury exposures may have
contributed to the decline in the endangered Florida panther in the
Florida Everglades, most likely from decreased reproductive success in
addition to death (Ref. 4).
E. Use Information
Mercury has been widely used in industry and consumer products
because of its diverse properties, such as conducting electricity,
responding to temperature and pressure changes, and forming alloys with
almost all other metals. Use of mercury has declined because its
toxicity has resulted in state and Federal limits on its use in various
products and safe, mercury-free alternatives are available for many
products. One of the larger remaining product uses is in switches.
Mercury tilt switches are small tubes with electrical contacts at one
end of the tube. As the tube tilts, the mercury collects at one end,
providing a conductive path to complete the circuit. When the switch is
tilted back, the circuit is broken. Tilt switches have been used in
automobiles for convenience lights in the trunk and hood, in ABS and
ride control systems. While convenience lights were used in all types
of automobiles, ABS and ride control systems were primarily used in
higher end, four-wheel drive vehicles. As of 1996, convenience light
switches, ABS system switches, and ride control system switches
accounted for 87, 12, and 1 percent, respectively, of mercury switch
usage in automobiles (Ref. 2). The mercury content of mercury switches
varied from 0.7 to 1.5 grams, with an average of 0.8 grams per switch.
Automakers used mercury light switches in convenience lighting (one
switch per light), such as underhood and trunk lighting. Mercury ABS
switches were usually made up of three individual switches, containing
about one gram of mercury each. For ride control systems, most commonly
two and up to four mercury switches were used, containing approximately
one gram of mercury per switch (Ref. 13).
There are two general categories for use of mercury switches in
motor vehicles:
Installed in new motor vehicles.
Available as an aftermarket replacement part.
While these switches normally last the lifetime of a vehicle, it is
possible that they could be damaged, for example in a collision, and
need to be replaced. In general, replacement parts can be purchased
through a dealer, auto service shop, or auto parts retailer. In the
case of mercury switches, which are unlikely to need replacement, the
original equipment manufacturer usually agrees to supply the
replacement part for about seven years after the vehicle is sold (Ref.
2).
American automobile manufacturers voluntarily discontinued the use
of mercury switches in new models as of January 1, 2003 (Ref. 1). Those
foreign automobile manufacturers that had used mercury switches
discontinued their use of mercury switches in new models in the 1990s.
Since mercury-free switches can be used as aftermarket parts to replace
mercury switches in convenience lights, mercury convenience light
switches are no longer available as aftermarket replacement parts. EPA
believes that there are no feasible non-mercury alternatives for mid-
life replacement in ABS and ride control systems that contain mercury
switches. EPA solicits comment on this issue.
Mercury switches are still being manufactured as replacement parts
for pre-2003 cars containing ABS and ride control systems with mercury
switches. Because ABS and ride control systems containing mercury
switches are only found on a few models of pre-2003 vehicles, and the
mercury switches would likely only need to be replaced if they were
damaged in a collision, there is a very small market for replacement
mercury switches for ABS and ride control systems. Available
information indicates that mercury switches needed as replacement parts
are not being regularly manufactured but must be specially ordered
(Ref. 2). This market should continue to decline as the pre-2003
vehicles reach the end of their lives. Automobiles have a life
expectancy of about ten to fifteen years. Once those vehicles are no
longer in use, there will be only a very minimal market for mercury
switches for ABS and ride control systems.
It is unlikely that auto manufacturers would resume the use of
automotive mercury switches. The ability to use mercury switches in new
vehicles would be limited to vehicles for sale in certain states. There
are a number of states that have banned the use of automotive mercury
switches, which prompted auto manufacturers to discontinue their use.
As evidenced by their nationwide discontinuation of mercury switch use
following the Maine state ban, it is not generally cost effective for
auto manufacturers to make vehicles with one set of components for sale
in some states and another set of components for vehicles for sale in a
different state (Ref. 3).
V. Significant New Use Determination
Section 5(a)(2) of TSCA provides 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. 15 U.S.C. 2604(2)(A)-(D).
EPA construes the statute to allow consideration of any other
relevant factors, in addition to those enumerated in section 5(a)(2)(A)
through (D) of TSCA.
To determine what would constitute a significant new use of
elemental mercury, EPA has considered relevant information about the
toxicity of mercury, the likely exposures and releases associated with
the life cycle of elemental mercury manufactured for use in automotive
switches, and the four factors listed in section 5(a)(2) of TSCA. The
life cycle steps include the following:
Mercury switch manufacturing.
Automobile manufacturing.
Automobile collision, repair, and maintenance.
End-of-life vehicle recycling.
U.S. auto manufacturers discontinued the use of mercury switches in
convenience lights, ABS and ride control systems in new automobiles as
of January 1, 2003. Those foreign automobile manufacturers that had
used mercury switches discontinued their use of mercury switches in new
models in the 1990s. New mercury switches are still available as mid-
life replacement parts only for pre-2003 ABS and ride control systems
that originally contained mercury switches. However, available
information indicates these replacement parts are not being regularly
manufactured, but must be specially ordered. Therefore, this market is
very small and will continue to decline as vehicles containing these
switches reach the end of their useful life.
Given that few mercury switches are being manufactured and none are
being installed in new automobiles as part of convenience lights, ABS
and ride
[[Page 39042]]
control systems, the resumption of use of mercury switches for these
uses in new automobiles would require a significant increase in the
manufacture and processing of mercury switches. This would result in an
increase in the magnitude and duration of exposure to workers and the
surrounding environment at facilities of all types in the life cycle,
as well as an increase in releases which could contribute additional
mercury to the atmosphere for long range transport. This could also
result in exposures to workers at automobile manufacturing and
automobile collision, repair and maintenance facilities who had not
previously worked in these facilities when mercury switches were
commonly used in automobiles, as well as exposures to workers who are
not currently being exposed to mercury switches.
Over the next twenty years, mercury emissions due to mercury
switches in automotive scrap will decrease, because automobile
manufacturers stopped installing mercury switches for convenience
lights, ABS, and ride control systems as of January 1, 2003.
Automobiles have a life expectancy of about ten to fifteen years.
Reintroduction of mercury switches for automotive uses would thus
result in future increases of mercury emissions at EAFs, if most end of
life vehicles would continue to be recycled as scrap in the future as
they are today. Once again, increases in mercury emissions could lead
to increases in mercury concentrations in the environment and reduction
in overall ecosystem and human health from consumption of mercury-
contaminated fish. Based on these considerations, EPA has determined
that any manufacturing or processing of elemental mercury for the uses
designated in this proposed rule is a significant new use.
VI. Effects and Objectives of this Proposed Rule
In determining what would constitute significant new uses for
mercury auto switches, EPA considered relevant information on the
toxicity of mercury, likely exposures associated with the uses, and the
four factors listed in TSCA section 5(a)(2) and discussed in Unit V.
If this proposed rule is finalized, it will allow EPA to provide
the following assurances:
EPA would receive a SNUN indicating a person's intent to
manufacture or process elemental mercury for a designated significant
new use before that activity begins.
EPA would have an opportunity to review and evaluate data
and information submitted in a SNUN before the notice submitter begins
manufacturing or processing elemental mercury for a designated
significant new use.
EPA would have an opportunity to regulate prospective
manufacturers and processors of elemental mercury before a significant
new use occurs, provided such regulation is warranted pursuant to TSCA
section 5(e) or (f).
As summarized in Unit IV., 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. American automakers voluntarily
discontinued use of mercury switches in new vehicles by January 1,
2003. Although production of ABS and ride control systems containing
mercury switches will continue as long as pre-2003 models containing
them need mid-life replacement parts, that market is very limited. It
should cease once pre-2003 vehicles containing mercury switches are no
longer available. However, EPA is concerned that manufacture or
processing of mercury for use in auto switches in new vehicles could be
reinitiated in the future and wants the opportunity to evaluate and
control, if appropriate, occupational and other exposures associated
with those activities. The notice that would be provided by the SNUN
would provide EPA with the opportunity to evaluate activities
associated with a significant new use as proposed herein and an
opportunity to protect against unreasonable risks, if any, from
exposure to mercury.
In the event the decline in the use of mercury switches as
replacement parts in ABS and ride control systems of pre-2003 motor
vehicles does not proceed as described in this proposed rule, EPA may
pursue additional regulatory action as appropriate under TSCA sections
4, 6, and 8.
VII. Alternatives/Other Options Considered
Before proposing this SNUR, EPA considered the following
alternative regulatory actions for elemental mercury.
A. Promulgate a Regulation Under the Clean Air Act
Section 112(d) of the CAA requires EPA to establish emission
standards for all categories and subcategories of major sources of
hazardous air pollutant (HAP) emissions and for area sources listed for
regulation under section 112(c). Mercury compounds are metal HAPs. In
terms of industries that consume scrap, EPA has promulgated national
emissions standards for hazardous air pollutants (NESHAPs) for iron and
steel foundries in the Federal Register of April 22, 2004 (69 FR 21905)
(FRL-7554-5) and integrated iron and steel mills in the Federal
Register of May 20, 2003 (68 FR 27645) (FRL-7460-2) and is in the
process of developing an area source rule for EAFs. The industry for
these source categories melts steel scrap that can contain automotive
mercury switches. EPA believes that removing mercury switches from
scrap before it is melted is the most effective way for most EAF
facilities to reduce mercury emissions resulting from automotive
mercury switches. Under the CAA, EPA may regulate only the listed
source category, such as EAFs used in producing steel and, therefore,
EPA does not regulate the manufacture, use, or disposal of mercury
switches per se. The iron and steel foundries NESHAP addresses mercury
emissions by requiring scrap selection and inspection programs to
remove mercury switches from automotive scrap. However, under TSCA, EPA
can regulate mercury switches earlier in their life cycle, by using the
authorities of TSCA section 5 to consider human and environmental
hazards during the manufacturing, processing, and use, as well as the
disposal of mercury switches and to take immediate regulatory action
under TSCA section 5(e) or 5(f) to prohibit or limit the manufacture,
processing, or distribution in commerce of mercury switches before it
begins. If the elimination of the use of mercury switches in ABS and
ride control replacement parts does not occur as anticipated, EPA may
reevaluate its options for addressing automotive scrap under the CAA
and pursue additional regulatory action as appropriate.
B. Promulgate a TSCA section 8(a) Reporting Rule
Under a TSCA section 8(a) rule, EPA could generally require
manufacturers and processors to report information to the Agency when
they intend to manufacture or process elemental mercury. However, the
use of TSCA section 8(a) rather than the SNUR authority, would not
provide the opportunity for EPA to review human and environmental
hazards and exposures associated with the new use of elemental mercury
and, if necessary, to take immediate regulatory action under TSCA
section 5(e) or section 5(f) to prohibit or limit the activity before
it begins. In addition, EPA may not receive important information from
small businesses, because those firms are generally exempt from TSCA
section
[[Page 39043]]
8(a) reporting requirements. In view of EPA's concerns about elemental
mercury and the uses subject to this proposed rule and EPA's interest
in having the opportunity to review these uses and regulate them as
appropriate, pending the development of exposure and/or hazard
information should a significant new use be initiated, the Agency
believes that a TSCA section 8(a) rule for elemental mercury would not
meet all of EPA's regulatory objectives.
C. Regulate Elemental Mercury Used in Certain Automotive Switches Under
TSCA section 6
EPA must regulate under TSCA section 6 if ``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 6(a)). Given that mercury
switches are no longer being used in convenience lights, ABS, and ride
control systems installed in new automobiles, are no longer used in
convenience light replacement parts, and are of very limited
availability in ABS and ride control replacement parts for some pre-
2003 models, 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
significant new uses of elemental mercury. If the elimination of the
use of mercury switches in ABS and ride control replacement parts does
not occur as anticipated, EPA may reconsider this decision and pursue
additional regulatory action as appropriate.
D. Allow the Exemption for Persons that 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
that 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 switches containing
elemental mercury could be imported or processed for uses subject to
this proposed SNUR without the submission of a SNUN. Because mercury-
containing automotive switches are the primary concern in this SNUR,
EPA wishes to include not only elemental mercury but also articles
containing elemental mercury. Thus, EPA is proposing to promulgate this
rule without the exemption generally provided for in Sec. 721.45(f).
Alternatively, EPA could lift the exemption provisions of 40 CFR
721.45(f) solely for articles containing automotive switches; however,
EPA believes it is appropriate to include all articles within the scope
of this SNUR, because it is possible to reclaim mercury from articles
containing elemental mercury and use that mercury to produce automotive
switches. Furthermore, a limited lifting of the exemption could be
confusing and of limited benefit, because persons importing or
processing mercury-containing articles would not be required to submit
a SNUN if they can meet the requirements of Sec. 721.5(a)(2) or Sec.
721.5(c). Therefore, EPA is proposing to promulgate this SNUR without
the exemption provided in Sec. 721.45(f). EPA is specifically seeking
comments on the issue of whether the exemption under Sec. 721.45(f)
should be lifted in whole or in part, or whether the exemption should
remain. EPA would particularly like to hear from persons that import or
process elemental mercury as part of articles on how the proposed
alternative will affect them.
E. Define a Narrower Scope of Motor Vehicles
EPA is considering narrowing the scope of motor vehicles subject to
the SNUR. A narrower definition might limit the SNUR to vehicles
intended primarily for noncommercial transport of passengers, such as
passenger cars, pickup trucks, sport-utility vehicles, minivans, and
passenger vans. These types of passenger automobiles comprise an
estimated 96% of the vehicles on the road, and it is well known that
the use of mercury switches in convenience lights, ABS, and ride
control systems in new passenger automobiles was voluntarily
discontinued as of January 1, 2003. Passenger automobiles have been the
primary focus of most efforts to remove mercury switches from vehicles.
There is less certainty about the status of mercury switch usage in
some of the larger passenger and freight carrying vehicles, such as
buses and semi trucks. Nevertheless, EPA believes that mercury switches
are not currently being used for convenience lights, ABS, or ride
control systems in all types of new motor vehicles, and that the
broader definition encompassing all motor vehicles more appropriately
addresses EPA's concerns about elemental mercury and the uses subject
to this proposed rule. EPA requests comments on narrowing the scope of
vehicles covered to limit it to passenger automobiles and on whether
mercury switches are being installed in any types of new motor
vehicles.
VIII. Applicability of Rule to Uses Occurring Before Effective Date of
the Final Rule
To establish a significant ``new'' use, EPA determines that the use
is not ongoing. 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. Thus, persons who begin commercial
manufacture, import, or processing of elemental mercury for the
significant new use described by this SNUR will have to cease any such
activity before the effective date of the final rule. To resume their
activities, these persons would have to comply with all applicable SNUN
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), the person would be
considered to have met the requirements of the final SNUR for those
activities. If persons who begin commercial manufacture, import, or
processing of the substance between publication and the effective date
of the SNUR do not meet the conditions of advance compliance, they must
cease that activity before the effective date of the final rule. To
resume their activities, these persons would have to comply with all
applicable SNUN requirements and wait until the notice review period,
including all extensions, expires.
IX. Risk and Market Information
EPA recognizes that section 5 of TSCA does not require the
development of any particular test data or information before
submission of a SNUN. Persons are required only to submit test data and
information 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, SNUN submitters should be aware that EPA will be better
able to evaluate SNUNs which provide detailed information on:
Human exposure and environmental releases that may result
from the significant new uses of elemental mercury.
[[Page 39044]]
Potential benefits of the use of the elemental mercury.
Information on risks posed by the use of elemental mercury
in automotive switches relative to risks posed by mercury-free
substitutes.
Information on how the concerns about mercury emissions
during disposal of end-of-life vehicles could be mitigated (e.g.,
rebates for switches removed before shredding).
Submitters should consider including with a SNUN any other
available studies on elemental mercury or studies on analogous
substances which may demonstrate that the significant new uses being
reported are unlikely to present an unreasonable risk.
In view of the potential risks posed by manufacture, processing,
distribution, and disposal of elemental mercury for use in automotive
switches, EPA would recommend in the final rule that potential SNUN
submitters include data and other information that would permit a
reasoned evaluation of risks posed by elemental mercury. EPA encourages
persons to consult with the Agency before submitting a SNUN for these
uses. As part of this optional pre-notice consultation, EPA would
discuss specific data and information it believes are necessary to
evaluate a significant new use. A SNUN submitted without sufficient
data and information to reasonably evaluate risks posed by a
significant new use of elemental mercury may increase the likelihood
that EPA will take action under TSCA section 5(e) to prohibit or limit
activities associated with elemental mercury and these uses. EPA
recommends that potential SNUN submitters contact the Agency early
enough that they will be able to conduct any appropriate tests and
develop any appropriate information.
X. SNUN Submissions
SNUNs should be mailed to the Environmental Protection Agency, OPPT
Document Control Office (7407M), 1200 Pennsylvania Avenue, N.W.,
Washington, DC 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), OPPT, Environmental
Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, DC
20460-0001 (see 40 CFR 721.25(a) and 720.40(a)(2)(i)).
XI. Economic Considerations
A. SNUNS
EPA has evaluated the potential costs of establishing SNUR
reporting requirements for potential manufacturers and processors of
the chemical substances included in this proposed rule. While there is
no precise way to calculate the total annual cost of compliance with
the final rule, given the uncertainties related to predicting the
number of SNUN's that would be submitted as a result of this SNUR, EPA
estimates that the cost for preparing and submitting a SNUN is $7,302,
including a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii) (Ref.
3). Small businesses with annual sales of less than $40 million when
combined with those of the parent company (if any) are subject to a
reduced user fee of $100 (40 CFR 700.45(b)(1)). Based on past
experience with SNURs and the low number of SNUNs which are submitted
on an annual basis, EPA believes that there will be few, if any, SNUNs
submitted as a result of this SNUR. In this case, it is unlikely that a
SNUN would be submitted, because there are a number of states that have
banned the use of mercury in vehicle switches, thus the ability to use
mercury switches in new motor vehicles would be limited to vehicles for
sale only in certain states. The costs of submission of SNUNs will not
be incurred by any company unless a company decides to pursue a
significant new use as defined in this SNUR. Furthermore, while the
expense of a notice and the uncertainty of possible EPA regulation may
discourage certain innovations, that impact would be limited because
such factors are unlikely to discourage an innovation that has high
potential value. EPA's complete economic analysis is available in the
public docket for this proposed rule (Ref. 3).
B. Export Notification
As noted in Unit II.C., persons who 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) (15 U.S.C.
2611(b)). These provisions require that, for chemicals subject to a
proposed or final SNUR, a company notify EPA of the first shipment to a
particular country in a calendar year of an affected chemical
substance. EPA estimated that the one-time cost of preparing and
submitting an export notification to be $93.02. The total costs of
export notification will vary per chemical, depending on the number of
required notifications (i.e., number of countries to which the chemical
is exported).
EPA is unable to estimate the total number of TSCA section 12(b)
notifications that will be received as a result of this SNUR, or the
total number of companies that will file these notices. However, EPA
expects that the total cost of complying with the export notification
provisions of TSCA section 12(b) will be limited based on historical
experience with TSCA section 12(b) notifications and the fact that no
companies have currently been identified that currently market any of
the chemical substances that are the subject of this rule commercially.
If companies were to manufacture for export only any of the chemical
substances covered by this SNUR, such companies would incur the minimal
costs associated with export notification despite the fact they would
not be subject to the SNUR notification requirements. See TSCA section
12(a) and 40 CFR 721.45(g). EPA is not aware of any companies in this
situation.
XII. References
The public docket for this action, EPA-HQ-OPPT-2005-0036, currently
includes the following documents:
1. Alliance of Automobile Manufacturers, 2003. Facts About Mercury
Switches, December, 2003. Accessible online at: http://www.autoalliance.org/archives/Mercury.pdf.
2. EPA, 2005a. Market Study: Mercury Use in Automotive Switches.
Washington, D.C. EPA/OPPTS/EETD/EPAB, August, 2005.
3. EPA, 2005b. Economic Analysis of the Significant New Use Rule
for Mercury Containing Automotive Switches. Washington, D.C. EPA/OPPTS/
EETD/EPAB, January 12, 2006.
4. EPA, 1997. U.S. Environmental Protection Agency. Mercury Study
Report to Congress. EPA-452/R-97-003, December 1997. Accessible at:
http://www.epa.gov/ttn/oarpg/t3/reports/volume1.pdf.
5. ATSDR, 1999. Agency for Toxic Substances and Disease Registry,
Public Health Service, U.S. Department of Health and Human Services.
Toxicological Profile for Mercury (update). Accessible online at:
http://www.atsdr.cdc.gov/toxprofiles/tp46.html.
6. EPA, 2002. U.S. Environmental Protection Agency. Integrated Risk
Information System (IRIS). Methylmercury. Oral RfD and inhalation RfC
assessments last revised 7/27/01; Carcinogenicity assessment last
revised 5/1/95; most recent revision of on-line materials, 2002;
website accessed May 2005. Accessible online at: http://www.epa.gov/iris/subst/0073.htm.
7. NRC, 2000. National Research Council. Toxicological Effects of
Methylmercury. Committee on the Toxicological Effects of Methylmercury,
[[Page 39045]]
Board on Environmental Studies and Toxicology, Commission on Life
Sciences, National Research Council. National Academy Press,
Washington, D.C. Accessible online at: http://books.nap.edu/books/0309071402/html/1.html.
8. EPA, 2005c. U.S. Environmental Protection Agency. Regulatory
Impact Analysis of the Clean Air Mercury Rule, Final Report. EPA-452/R-
05-003, March 2005. Accessible online at: http://www.epa.gov/ttn/atw/utility/ria_final.pdf.
9. EPA, 2005d. 2004 National Listing of Fish Advisories. Fact
Sheet, Sept. 2005. EPA-823-F-05-004. Accessible at: http://epa.gov/waterscience/fish/advisories/fs2004.pdf.
10. EPA, 2005e. Technical Support Document, Revision of December
2000 Finding on the Emissions of Hazardous Air Pollutants from Electric
Steam Generating Units and the Removal of Coal- and Oil-Fired Electric
Utility Steam Generating Units From the Section 112 (c) List:
Reconsideration, October 21, 2005. Accessible online at http://www.epa.gov/ttn/atw/utility/TSD-112-final.pdf.
11. CDC, 2004. Centers for Disease Control and Prevention. Blood
Mercury Levels in Young Children and Childbearing Aged-Women - United
States, 1999-2002. Morbidity and Mortality Weekly Report, November 5,
2004/53(43):1018-1020. Accessible online at: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5343a5.htm.
12. Boening, D.W. 2000. Ecological effects, transport, and fate of
mercury: A general review. Chemosphere 40: 1335-1351.
13. EPA, 2005f. Screening Level Workplace Release and Exposure
Assessment for Mercury Switches in New Automobiles. Washington, D.C.
EPA/OPPTS/EETD/CEB, September 6, 2005.
XIII. 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 not a
``significant regulatory action'' because this rule does not meet the
criteria in section 3(f) 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 would 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 105 hours
per submission. 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, DC 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 a SNUR only requires that any person who intends to
engage in such activity in the future must first notify EPA by
submitting a SNUN, no economic impact would even occur until someone
decides to engage in those activities. 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 10 notices per year. Of those SNUNs
submitted, none appear to be from small entities in response to any
SNUR. In addition, the estimated reporting cost for submission of a
SNUN (see Unit XI.), are minimal regardless of the size of the firm.
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 on June
2, 1997 (62 FR 29684) (FRL-5597-1), 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 reasons 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 affect 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
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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 the impact of this SNUR will be
less than $100 million. Executive Order 13045 only requires analysis of
impacts on children for rules that will have an impact of $100 million
or more.
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
This action does not involve any technical standards; therefore,
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).
K. Executive Order 12988: Civil Justice Reform
In issuing this proposed rule, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct, as required by
section 3 of Executive Order 12988, entitled Civil Justice Reform (61
FR 4729, February 7, 1996).
List of Subjects in 40 CFR Part 721
Environmental protection, Chemicals, Hazardous substances,
Reporting and recordkeeping requirements.
Dated: July 5, 2006.
Charles M. Auer,
Director, Office of Pollution Prevention and Toxics.
Therefore, it is proposed that 40 CFR part 721 be amended as
follows:
PART 721--[AMENDED]
1. The authority citation for part 721 would continue to read as
follows:
Authority: 15 U.S.C. 2604, 2607, and 2625(c).
2. By adding new Sec. 721.10068 to subpart E 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: Motor vehicle
has the meaning found at 40 CFR 85.1703.
(b) Chemical substances and significant new uses subject to
reporting. (1) The chemical substance elemental mercury (CAS. No. 7439-
97-6) is subject to reporting under this section for the significant
new uses described in paragraph (b)(2) of this section.
(2) The significant new uses are:
(i) Manufacture or processing of elemental mercury for use in
convenience light switches in new motor vehicles.
(ii) Manufacture or processing of elemental mercury for use in
convenience light switches as new aftermarket replacement parts for
motor vehicles.
(iii) Manufacture or processing of elemental mercury for use in
switches in anti-lock brake systems (ABS) in new motor vehicles.
(iv) Manufacture or processing of elemental mercury for use in
switches in ABS as new aftermarket replacement parts for motor vehicles
that were manufactured after January 1, 2003.
(v) Manufacture or processing of elemental mercury for use in
switches in active ride control systems in new motor vehicles.
(vi) Manufacture or processing of elemental mercury for use in
switches in active ride control systems as new aftermarket replacement
parts for motor vehicles that were manufactured after January 1, 2003.
(c) Specific requirements. The provisions of subpart A of this part
apply to this section except as modified by this paragraph.
(1) Revocation of article exemption. The provisions of Sec.
721.45(f) do not apply to this section. A person who imports or
processes the substance as part of an article for the significant new
use must submit a significant new use notice.
(2) [Reserved]
[FR Doc. E6-10858 Filed 7-10-06; 8:45 am]
BILLING CODE 6560-50-S