1.This Act may be cited as the
Mercury Export Ban Act of
2008
.
2.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.
3.Prohibition on sale, distribution, or
transfer of elemental mercurySection 6 of the Toxic Substances Control
Act (15 U.S.C.
2605) is amended by adding at the end the following:
(f)
(1)Prohibition on sale, distribution, or
transfer of elemental mercury by Federal agenciesExcept 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)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)Nothing in this subsection prohibits the
leasing of
coal.
.
4.Prohibition on export of elemental
mercurySection 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)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)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)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)(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
obligationsNothing in this
subsection affects, replaces, or amends prior law relating to the need for
consistency with international trade obligations.
(6)Nothing in this
subsection shall be construed to prohibit the export of
coal.
.
5.
(a)
(1)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)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)
(1)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)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)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)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)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)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
systemsThe 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)(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)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)(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
proceduresThe Secretary is
authorized to establish such terms, conditions, and procedures as are necessary
to carry out this section.
(g)
(1)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)(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)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).
6.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