AN ACTTo prohibit the sale, distribution, transfer, and export of elemental mercury, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. [15 U.S.C. 2601 note] SHORT TITLE. This Act may be cited as the “Mercury Export Ban Act of 2008”.

SEC. 2. [15 U.S.C. 2611 note] FINDINGS. Congress finds that— (1) mercury is highly toxic to humans, ecosystems, and wildlife; (2) as many as 10 percent of women in the United States of childbearing age have mercury in the blood at a level that could put a baby at risk; (3) as many as 630,000 children born annually in the United States are at risk of neurological problems related to mercury; (4) the most significant source of mercury exposure to people in the United States is ingestion of mercury-contaminated fish; (5) the Environmental Protection Agency reports that, as of 2004— (A) 44 States have fish advisories covering over 13,000,000 lake acres and over 750,000 river miles; (B) in 21 States the freshwater advisories are statewide; and (C) in 12 States the coastal advisories are statewide; (6) the long-term solution to mercury pollution is to minimize global mercury use and releases to eventually achieve reduced contamination levels in the environment, rather than reducing fish consumption since uncontaminated fish represents a critical and healthy source of nutrition worldwide; (7) mercury pollution is a transboundary pollutant, depositing locally, regionally, and globally, and affecting water bodies near industrial sources (including the Great Lakes) and remote areas (including the Arctic Circle); (8) the free trade of elemental mercury on the world market, at relatively low prices and in ready supply, encourages the continued use of elemental mercury outside of the United States, often involving highly dispersive activities such as artisinal gold mining; (9) the intentional use of mercury is declining in the United States as a consequence of process changes to manufactured products (including batteries, paints, switches, and measuring devices), but those uses remain substantial in the developing world where releases from the products are extremely likely due to the limited pollution control and waste management infrastructures in those countries; (10) the member countries of the European Union collectively are the largest source of elemental mercury exports globally; (11) the European Commission has proposed to the European Parliament and to the Council of the European Union a regulation to ban exports of elemental mercury from the European Union by 2011; (12) the United States is a net exporter of elemental mercury and, according to the United States Geological Survey, exported 506 metric tons of elemental mercury more than the United States imported during the period of 2000 through 2004; and (13) banning exports of elemental mercury from the United States will have a notable effect on the market availability of elemental mercury and switching to affordable mercury alternatives in the developing world.

SEC. 3. PROHIBITION ON SALE, DISTRIBUTION, OR TRANSFER OF ELEMENTAL MERCURY. Section 6 of the Toxic Substances Control Act (15 U.S.C. 2605) is amended by adding at the end the following: “(f) Mercury.— “(1) Prohibition on sale, distribution, or transfer of elemental mercury by federal agencies.—Except as provided in paragraph (2), effective beginning on the date of enactment of this subsection, no Federal agency shall convey, sell, or distribute to any other Federal agency, any State or local government agency, or any private individual or entity any elemental mercury under the control or jurisdiction of the Federal agency. “(2) Exceptions.—Paragraph (1) shall not apply to— “(A) a transfer between Federal agencies of elemental mercury for the sole purpose of facilitating storage of mercury to carry out this Act; or “(B) a conveyance, sale, distribution, or transfer of coal. “(3) Leases of federal coal.—Nothing in this subsection prohibits the leasing of coal.” .

SEC. 4. PROHIBITION ON EXPORT OF ELEMENTAL MERCURY. Section 12 of the Toxic Substances Control Act (15 U.S.C. 2611) is amended— (1) in subsection (a) by striking “subsection (b)” and inserting “subsections (b) and (c)”; and (2) by adding at the end the following: “(c) Prohibition on Export of Elemental Mercury.— “(1) Prohibition.—Effective January 1, 2013, the export of elemental mercury from the United States is prohibited. “(2) Inapplicability of subsection (a).—Subsection (a) shall not apply to this subsection. “(3) Report to congress on mercury compounds.— “(A) Report.—Not later than one year after the date of enactment of the Mercury Export Ban Act of 2008, the Administrator shall publish and submit to Congress a report on mercuric chloride, mercurous chloride or calomel, mercuric oxide, and other mercury compounds, if any, that may currently be used in significant quantities in products or processes. Such report shall include an analysis of— “(i) the sources and amounts of each of the mercury compounds imported into the United States or manufactured in the United States annually; “(ii) the purposes for which each of these compounds are used domestically, the amount of these compounds currently consumed annually for each purpose, and the estimated amounts to be consumed for each purpose in 2010 and beyond; “(iii) the sources and amounts of each mercury compound exported from the United States annually in each of the last three years; “(iv) the potential for these compounds to be processed into elemental mercury after export from the United States; and “(v) other relevant information that Congress should consider in determining whether to extend the export prohibition to include one or more of these mercury compounds. “(B) Procedure.—For the purpose of preparing the report under this paragraph, the Administrator may utilize the information gathering authorities of this title, including sections 10 and 11. “(4) Essential use exemption.—(A) Any person residing in the United States may petition the Administrator for an exemption from the prohibition in paragraph (1), and the Administrator may grant by rule, after notice and opportunity for comment, an exemption for a specified use at an identified foreign facility if the Administrator finds that— “(i) nonmercury alternatives for the specified use are not available in the country where the facility is located; “(ii) there is no other source of elemental mercury available from domestic supplies (not including new mercury mines) in the country where the elemental mercury will be used; “(iii) the country where the elemental mercury will be used certifies its support for the exemption; “(iv) the export will be conducted in such a manner as to ensure the elemental mercury will be used at the identified facility as described in the petition, and not otherwise diverted for other uses for any reason; “(v) the elemental mercury will be used in a manner that will protect human health and the environment, taking into account local, regional, and global human health and environmental impacts; “(vi) the elemental mercury will be handled and managed in a manner that will protect human health and the environment, taking into account local, regional, and global human health and environmental impacts; and “(vii) the export of elemental mercury for the specified use is consistent with international obligations of the United States intended to reduce global mercury supply, use, and pollution. “(B) Each exemption issued by the Administrator pursuant to this paragraph shall contain such terms and conditions as are necessary to minimize the export of elemental mercury and ensure that the conditions for granting the exemption will be fully met, and shall contain such other terms and conditions as the Administrator may prescribe. No exemption granted pursuant to this paragraph shall exceed three years in duration and no such exemption shall exceed 10 metric tons of elemental mercury. “(C) The Administrator may by order suspend or cancel an exemption under this paragraph in the case of a violation described in subparagraph (D). “(D) A violation of this subsection or the terms and conditions of an exemption, or the submission of false information in connection therewith, shall be considered a prohibited act under section 15, and shall be subject to penalties under section 16, injunctive relief under section 17, and citizen suits under section 20. “(5) Consistency with trade obligations.—Nothing in this subsection affects, replaces, or amends prior law relating to the need for consistency with international trade obligations. “(6) Export of coal.—Nothing in this subsection shall be construed to prohibit the export of coal.” .

SEC. 5. [42 U.S.C. 6939f] LONG-TERM STORAGE. (a) Designation of Facility.— (1) In general.—Not later than January 1, 2010, the Secretary of Energy (referred to in this section as the “Secretary”) shall designate a facility or facilities of the Department of Energy, which shall not include the Y-12 National Security Complex or any other portion or facility of the Oak Ridge Reservation of the Department of Energy, for the purpose of long-term management and storage of elemental mercury generated within the United States. (2) Operation of facility.—Not later than January 1, 2019, the facility designated in paragraph (1) shall be operational and shall accept custody, for the purpose of long-term management and storage, of elemental mercury generated within the United States and delivered to such facility. (b) Fees.— (1) In general.— (A) Assessment and collection.—After consultation with persons who are likely to deliver elemental mercury to a designated facility for long-term management and storage under the program prescribed in subsection (a), and with other interested persons, the Secretary shall assess and collect a fee at the time of delivery for providing such management and storage, based on the pro rata cost of long-term management and storage of elemental mercury delivered to the facility. (B) Amount.—The amount of the fees described in subparagraph (A)— (i) shall be made publically available not later than October 1, 2018; (ii) may be adjusted annually; (iii) shall be set in an amount sufficient to cover the costs described in paragraph (2), subject to clause (iv); and (iv) for generators temporarily accumulating elemental mercury in a facility subject to subparagraphs (B) and (D)(iv) of subsection (g)(2) if the facility designated in subsection (a) is not operational by January 1, 2019, shall be adjusted to subtract the cost of the temporary accumulation during the period in which the facility designated under subsection (a) is not operational. (C) Conveyance of title and permitting.—If the facility designated in subsection (a) is not operational by January 1, 2020, the Secretary— (i) shall immediately accept the conveyance of title to all elemental mercury that has accumulated in facilities in accordance with subsection (g)(2)(D), before January 1, 2020, and deliver the accumulated mercury to the facility designated under subsection (a) on the date on which the facility becomes operational; (ii) shall pay any applicable Federal permitting costs, including the costs for permits issued under section 3005(c) of the Solid Waste Disposal Act (42 U.S.C. 6925(c)); and (iii) shall store, or pay the cost of storage of, until the time at which a facility designated in subsection (a) is operational, accumulated mercury to which the Secretary has title under this subparagraph in a facility that has been issued a permit under section 3005(c) of the Solid Waste Disposal Act (42 U.S.C. 6925(c)). (2) Costs.—The costs referred to in paragraph (1)(B)(iii) are the costs to the Department of Energy of providing such management and storage, including facility operation and maintenance, security, monitoring, reporting, personnel, administration, inspections, training, fire suppression, closure, and other costs required for compliance with applicable law. Such costs shall not include costs associated with land acquisition or permitting of a designated facility under the Solid Waste Disposal Act or other applicable law. Building design and building construction costs shall only be included to the extent that the Secretary finds that the management and storage of elemental mercury accepted under the program under this section cannot be accomplished without construction of a new building or buildings. (c) Report.—Not later than 60 days after the end of each Federal fiscal year, the Secretary shall transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on all of the costs incurred in the previous fiscal year associated with the long-term management and storage of elemental mercury. Such report shall set forth separately the costs associated with activities taken under this section. (d) Management Standards for a Facility.— (1) Guidance.—Not later than October 1, 2009, the Secretary, after consultation with the Administrator of the Environmental Protection Agency and all appropriate State agencies in affected States, shall make available, including to potential users of the long-term management and storage program established under subsection (a), guidance that establishes procedures and standards for the receipt, management, and long-term storage of elemental mercury at a designated facility or facilities, including requirements to ensure appropriate use of flasks or other suitable shipping containers. Such procedures and standards shall be protective of human health and the environment and shall ensure that the elemental mercury is stored in a safe, secure, and effective manner. In addition to such procedures and standards, elemental mercury managed and stored under this section at a designated facility shall be subject to the requirements of the Solid Waste Disposal Act, including the requirements of subtitle C of that Act, except as provided in subsection (g)(2) of this section. A designated facility is authorized to operate under interim status pursuant to section 3005(e) of the Solid Waste Disposal Act until a final decision on a permit application is made pursuant to section 3005(c) of the Solid Waste Disposal Act. Not later than January 1, 2020, the Administrator of the Environmental Protection Agency (or an authorized State) shall issue a final decision on the permit application. (2) Training.—The Secretary shall conduct operational training and emergency training for all staff that have responsibilities related to elemental mercury management, transfer, storage, monitoring, or response. (3) Equipment.—The Secretary shall ensure that each designated facility has all equipment necessary for routine operations, emergencies, monitoring, checking inventory, loading, and storing elemental mercury at the facility. (4) Fire detection and suppression systems.—The Secretary shall— (A) ensure the installation of fire detection systems at each designated facility, including smoke detectors and heat detectors; and (B) ensure the installation of a permanent fire suppression system, unless the Secretary determines that a permanent fire suppression system is not necessary to protect human health and the environment. (e) Indemnification of Persons Delivering Elemental Mercury.— (1) In general.—(A) Except as provided in subparagraph (B) and subject to paragraph (2), the Secretary shall hold harmless, defend, and indemnify in full any person who delivers elemental mercury to a designated facility under the program established under subsection (a) from and against any suit, claim, demand or action, liability, judgment, cost, or other fee arising out of any claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss) that results from, or is in any manner predicated upon, the release or threatened release of elemental mercury as a result of acts or omissions occurring after such mercury is delivered to a designated facility described in subsection (a). (B) To the extent that a person described in subparagraph (A) contributed to any such release or threatened release, subparagraph (A) shall not apply. (2) Conditions.—No indemnification may be afforded under this subsection unless the person seeking indemnification— (A) notifies the Secretary in writing within 30 days after receiving written notice of the claim for which indemnification is sought; (B) furnishes to the Secretary copies of pertinent papers the person receives; (C) furnishes evidence or proof of any claim, loss, or damage covered by this subsection; and (D) provides, upon request by the Secretary, access to the records and personnel of the person for purposes of defending or settling the claim or action. (3) Authority of secretary.—(A) In any case in which the Secretary determines that the Department of Energy may be required to make indemnification payments to a person under this subsection for any suit, claim, demand or action, liability, judgment, cost, or other fee arising out of any claim for personal injury or property damage referred to in paragraph (1)(A), the Secretary may settle or defend, on behalf of that person, the claim for personal injury or property damage. (B) In any case described in subparagraph (A), if the person to whom the Department of Energy may be required to make indemnification payments does not allow the Secretary to settle or defend the claim, the person may not be afforded indemnification with respect to that claim under this subsection. (f) Terms, Conditions, and Procedures.—The Secretary is authorized to establish such terms, conditions, and procedures as are necessary to carry out this section. (g) Effect on Other Law.— (1) In general.—Except as provided in paragraph (2), nothing in this section changes or affects any Federal, State, or local law or the obligation of any person to comply with such law. (2) Exception.—(A) Elemental mercury that the Secretary is storing on a long-term basis shall not be subject to the storage prohibition of section 3004(j) of the Solid Waste Disposal Act (42 U.S.C. 6924(j)). For the purposes of section 3004(j) of the Solid Waste Disposal Act, a generator accumulating elemental mercury destined for a facility designated by the Secretary under subsection (a) for 90 days or less shall be deemed to be accumulating the mercury to facilitate proper treatment, recovery, or disposal. (B) Elemental mercury may be stored at a facility with respect to which any permit has been issued under section 3005(c) of the Solid Waste Disposal Act (42 U.S.C. 6925(c)), and shall not be subject to the storage prohibition of section 3004(j) of the Solid Waste Disposal Act (42 U.S.C. 6924(j)) if— (i) the Secretary is unable to accept the mercury at a facility designated by the Secretary under subsection (a) for reasons beyond the control of the owner or operator of the permitted facility; (ii) the owner or operator of the permitted facility certifies in writing to the Secretary that it will ship the mercury to the designated facility when the Secretary is able to accept the mercury; and (iii) the owner or operator of the permitted facility certifies in writing to the Secretary that it will not sell, or otherwise place into commerce, the mercury. (C)1 Subparagraph (B) shall not apply to mercury with respect to which the owner or operator of the permitted facility fails to comply with a certification provided under clause (ii) or (iii) of that subparagraph.¹

The margins for subparagraphs (C) and (D) are so in law.

(D) A generator producing elemental mercury incidentally from the beneficiation or processing of ore or related pollution control activities may accumulate the mercury produced onsite that is destined for a facility designated by the Secretary under subsection (a) for more than 90 days without a permit issued under section 3005(c) of the Solid Waste Disposal Act (42 U.S.C. 6925(c)), and shall not be subject to the storage prohibition of section 3004(j) of that Act (42 U.S.C. 6924(j)), if— (i) the Secretary is unable to accept the mercury at a facility designated by the Secretary under subsection (a) for reasons beyond the control of the generator; (ii) the generator certifies in writing to the Secretary that the generator will ship the mercury to a designated facility when the Secretary is able to accept the mercury; (iii) the generator certifies in writing to the Secretary that the generator is storing only mercury the generator has produced or recovered onsite and will not sell, or otherwise place into commerce, the mercury; and (iv) the generator has obtained an identification number under section 262.12 of title 40, Code of Federal Regulations, and complies with the requirements described in paragraphs (1) through (4) of section 262.34(a) of title 40, Code of Federal Regulations (as in effect on the date of enactment of this subparagraph). (E) Management standards for temporary storage.—Not later than January 1, 2017, the Secretary, after consultation with the Administrator of the Environmental Protection Agency and State agencies in affected States, shall develop and make available guidance that establishes procedures and standards for the management and short-term storage of elemental mercury at a generator covered under subparagraph (D), including requirements to ensure appropriate use of flasks or other suitable containers. Such procedures and standards shall be protective of health and the environment and shall ensure that the elemental mercury is stored in a safe, secure, and effective manner. A generator may accumulate mercury in accordance with subparagraph (D) immediately upon enactment of this subparagraph, and notwithstanding that guidance called for by this paragraph has not been developed or made available. (h) Study.—Not later than July 1, 2014, the Secretary shall transmit to the Congress the results of a study, conducted in consultation with the Administrator of the Environmental Protection Agency, that— (1) determines the impact of the long-term storage program under this section on mercury recycling; and (2) includes proposals, if necessary, to mitigate any negative impact identified under paragraph (1).

SEC. 6. REPORT TO CONGRESS. At least 3 years after the effective date of the prohibition on export of elemental mercury under section 12(c) of the Toxic Substances Control Act (15 U.S.C. 2611(c)), as added by section 4 of this Act, but not later than January 1, 2017, the Administrator of the Environmental Protection Agency shall transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on the global supply and trade of elemental mercury, including but not limited to the amount of elemental mercury traded globally that originates from primary mining, where such primary mining is conducted, and whether additional primary mining has occurred as a consequence of this Act.