[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 906 Enrolled Bill (ENR)]

        S.906

                       One Hundred Tenth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Thursday,
            the third day of January, two thousand and eight


                                 An Act


 
 To 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. SHORT TITLE.
    This Act may be cited as the ``Mercury Export Ban Act of 2008''.
SEC. 2. 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. 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, 2013, 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.--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. The amount of such fees--
            (A) shall be made publically available not later than 
        October 1, 2012;
            (B) may be adjusted annually; and
            (C) shall be set in an amount sufficient to cover the costs 
        described in paragraph (2).
        (2) Costs.--The costs referred to in paragraph (1)(C) 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 in existence on or before January 1, 
    2013, 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, 
    2015, 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.
    This subparagraph 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).
    (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.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.