[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 906 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
110th CONGRESS
  2d Session
                                 S. 906

_______________________________________________________________________

                                 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.

            Passed the Senate September 26 (legislative day, September 
      17), 2008.

            Attest:

                                                             Secretary.
110th CONGRESS

  2d Session

                                 S. 906

_______________________________________________________________________

                                 AN ACT

 To prohibit the sale, distribution, transfer, and export of elemental 
                    mercury, and for other purposes.