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






                                                      Calendar No. 1038
110th CONGRESS
  2d Session
                                 S. 906

                          [Report No. 110-477]

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 15, 2007

  Mr. Obama (for himself, Ms. Murkowski, Mr. Biden, Mr. Salazar, Mrs. 
  Boxer, and Mr. Levin) introduced the following bill; which was read 
  twice and referred to the Committee on Environment and Public Works

           September 22 (legislative day, September 17), 2008

               Reported by Mrs. Boxer, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Mercury Market Minimization 
Act of 2007''.</DELETED>

<DELETED>SEC. 2. FINDINGS.</DELETED>

<DELETED>    Congress finds that--</DELETED>
        <DELETED>    (1) mercury and mercury compounds are highly toxic 
        to humans, ecosystems, and wildlife;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (3) as many as 630,000 children born annually in 
        the United States are at risk of neurological problems related 
        to mercury;</DELETED>
        <DELETED>    (4) the most significant source of mercury 
        exposure to people in the United States is ingestion of 
        mercury-contaminated fish;</DELETED>
        <DELETED>    (5) the Environmental Protection Agency reports 
        that, as of 2004--</DELETED>
                <DELETED>    (A) 44 States have fish advisories 
                covering over 13,000,000 lake acres and over 750,000 
                river miles;</DELETED>
                <DELETED>    (B) in 21 States the freshwater advisories 
                are statewide; and</DELETED>
                <DELETED>    (C) in 12 States the coastal advisories 
                are statewide;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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);</DELETED>
        <DELETED>    (8) the free trade of mercury and mercury 
        compounds on the world market, at relatively low prices and in 
        ready supply, encourages the continued use of mercury outside 
        of the United States, often involving highly dispersive 
        activities such as artisinal gold mining;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (10) the member countries of the European Union 
        collectively are the largest source of mercury exports 
        globally;</DELETED>
        <DELETED>    (11) the European Union is in the process of 
        enacting legislation that will prohibit mercury exports by not 
        later than 2011;</DELETED>
        <DELETED>    (12) the United States is a net exporter of 
        mercury and, according to the United States Geologic Survey, 
        exported 506 metric tons of mercury more than the United States 
        imported during the period of 2000 through 2004; and</DELETED>
        <DELETED>    (13) banning exports of mercury from the United 
        States will have a notable affect on the market availability of 
        mercury and switching to affordable mercury alternatives in the 
        developing world.</DELETED>

<DELETED>SEC. 3. PROHIBITION ON SALE, DISTRIBUTION, OR TRANSFER OF 
              MERCURY BY DEPARTMENT OF DEFENSE OR DEPARTMENT OF 
              ENERGY.</DELETED>

<DELETED>    Section 6 of the Toxic Substances Control Act (15 U.S.C. 
2605) is amended by adding at the end the following:</DELETED>
<DELETED>    ``(f) Mercury.--</DELETED>
        <DELETED>    ``(1) Prohibition on sale, distribution, or 
        transfer of 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.</DELETED>
        <DELETED>    ``(2) Exception.--Paragraph (1) shall not apply to 
        a transfer between Federal agencies of elemental mercury for 
        the sole purpose of facilitating storage of mercury to carry 
        out this Act.''.</DELETED>

<DELETED>SEC. 4. PROHIBITION ON EXPORT OF MERCURY.</DELETED>

<DELETED>    Section 12 of the Toxic Substances Control Act (15 U.S.C. 
2611) is amended--</DELETED>
        <DELETED>    (1) in subsection (a) by striking ``subsection 
        (b)'' and inserting ``subsections (b) and (c)''; and</DELETED>
        <DELETED>    (2) by adding at the end the following:</DELETED>
<DELETED>    ``(c) Prohibition on Export of Mercury.--</DELETED>
        <DELETED>    ``(1) Elemental mercury.--Effective January 1, 
        2010, the export of elemental mercury from the United States is 
        prohibited.</DELETED>
        <DELETED>    ``(2) Report to congress on mercury compounds.--
        </DELETED>
                <DELETED>    ``(A) Report.--</DELETED>
                        <DELETED>    ``(i) In general.--Not later than 
                        1 year after the date of enactment of the 
                        Mercury Market Minimization Act of 2007, 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.</DELETED>
                        <DELETED>    ``(ii) Inclusions.--The report 
                        shall include an analysis of--</DELETED>
                                <DELETED>    ``(I) the sources and 
                                amounts of each mercury compound 
                                produced annually in, or imported into, 
                                the United States;</DELETED>
                                <DELETED>    ``(II)(aa) the purposes 
                                for which each of the compounds are 
                                used domestically;</DELETED>
                                <DELETED>    ``(bb) the quantity of the 
                                compounds currently consumed annually 
                                for each purpose; and</DELETED>
                                <DELETED>    ``(cc) the estimated 
                                quantity of the compounds to be 
                                consumed for each purpose during 
                                calendar year 2010 and 
                                thereafter;</DELETED>
                                <DELETED>    ``(III) the sources and 
                                quantities of each mercury compound 
                                exported from the United States during 
                                each of the preceding 3 calendar 
                                years;</DELETED>
                                <DELETED>    ``(IV) the potential for 
                                the compounds to be processed into 
                                elemental mercury after export from the 
                                United States; and</DELETED>
                                <DELETED>    ``(V) other information 
                                that Congress should consider in 
                                determining whether to extend the 
                                export prohibition to include 1 or more 
                                of those mercury compounds.</DELETED>
                <DELETED>    ``(B) Procedure.--</DELETED>
                        <DELETED>    ``(i) In general.--Except as 
                        provided in clause (ii), for the purpose of 
                        preparing the report under this paragraph, the 
                        Administrator may use the information gathering 
                        authorities of this title, including sections 
                        10 and 11.</DELETED>
                        <DELETED>    ``(ii) Exception.--Subsection 
                        (b)(2) of section 11 shall not apply to 
                        activities under this subparagraph.</DELETED>
        <DELETED>    ``(3) Excess mercury storage advisory committee.--
        </DELETED>
                <DELETED>    ``(A) Establishment.--There is established 
                an advisory committee, to be known as the `Excess 
                Mercury Storage Advisory Committee' (referred to in 
                this paragraph as the `Committee').</DELETED>
                <DELETED>    ``(B) Membership.--</DELETED>
                        <DELETED>    ``(i) In general.--The Committee 
                        shall be composed of 9 members, of whom--
                        </DELETED>
                                <DELETED>    ``(I) 2 members shall be 
                                jointly appointed by the Speaker of the 
                                House of Representatives and the 
                                Majority Leader of the Senate--
                                </DELETED>
                                        <DELETED>    ``(aa) 1 of whom 
                                        shall be designated to serve as 
                                        Chairperson of the Committee; 
                                        and</DELETED>
                                        <DELETED>    ``(bb) 1 of whom 
                                        shall be designated to serve as 
                                        Vice-Chairperson of the 
                                        Committee;</DELETED>
                                <DELETED>    ``(II) 1 member shall be 
                                the Administrator;</DELETED>
                                <DELETED>    ``(III) 1 member shall be 
                                the Secretary of Defense;</DELETED>
                                <DELETED>    ``(IV) 1 member shall be a 
                                representative of State environmental 
                                agencies;</DELETED>
                                <DELETED>    ``(V) 1 member shall be a 
                                representative of State attorneys 
                                general;</DELETED>
                                <DELETED>    ``(VI) 1 member shall be a 
                                representative of the chlorine 
                                industry;</DELETED>
                                <DELETED>    ``(VII) 1 member shall be 
                                a representative of the mercury waste 
                                treatment industry; and</DELETED>
                                <DELETED>    ``(VIII) 1 member shall be 
                                a representative of a nonprofit 
                                environmental organization.</DELETED>
                        <DELETED>    ``(ii) Appointments.--Not later 
                        than 45 days after the date of enactment of 
                        this subsection, the Administrator, in 
                        consultation with the appropriate congressional 
                        committees, shall appoint the members of the 
                        Committee described in subclauses (IV) through 
                        (VIII) of clause (i).</DELETED>
                <DELETED>    ``(C) Initial meeting.--Not later than 30 
                days after the date on which all members of the 
                Committee have been appointed, the Committee shall hold 
                the initial meeting of the Committee.</DELETED>
                <DELETED>    ``(D) Meetings.--The Committee shall meet 
                at the call of the Chairperson.</DELETED>
                <DELETED>    ``(E) Quorum.--A majority of the members 
                of the Committee shall constitute a quorum.</DELETED>
                <DELETED>    ``(F) Report.--Not later than 1 year after 
                the date of enactment of this subsection, the Committee 
                shall submit to Congress a report describing the 
                findings and recommendations of the Committee, if any, 
                relating to--</DELETED>
                        <DELETED>    ``(i) the environmental, health, 
                        and safety requirements necessary to prevent--
                        </DELETED>
                                <DELETED>    ``(I) the release of 
                                elemental mercury into the environment; 
                                and</DELETED>
                                <DELETED>    ``(II) worker exposure 
                                from the storage of elemental 
                                mercury;</DELETED>
                        <DELETED>    ``(ii) the estimated annual cost 
                        of storing elemental mercury on a per-pound or 
                        per-ton basis;</DELETED>
                        <DELETED>    ``(iii) for the 40-year period 
                        beginning on the date of submission of the 
                        report, the optimal size, number, and other 
                        characteristics of Federal facilities required 
                        to store elemental mercury under current and 
                        anticipated jurisdictions of each Federal 
                        agency;</DELETED>
                        <DELETED>    ``(iv) the estimated quantity of--
                        </DELETED>
                                <DELETED>    ``(I) elemental mercury 
                                that will result from the 
                                decommissioning of mercury cell chlor-
                                alkali facilities in the United States; 
                                and</DELETED>
                                <DELETED>    ``(II) any other supplies 
                                that may require storage to carry out 
                                this Act;</DELETED>
                        <DELETED>    ``(v) for the 40-year period 
                        beginning on the date of submission of the 
                        report, the estimated quantity of elemental 
                        mercury generated from the recycling of 
                        unwanted products and other wastes that will 
                        require storage to comply with the export 
                        prohibitions under this Act;</DELETED>
                        <DELETED>    ``(vi) any legal, technical, 
                        economic, or other barrier that may prevent the 
                        private sector from storing elemental mercury 
                        produced by the private sector during the 40-
                        year period beginning on the date of submission 
                        of the report, including a description of 
                        measures to address the barriers;</DELETED>
                        <DELETED>    ``(vii) the advantages and 
                        disadvantages of consolidating the storage of 
                        mercury produced by public and private sources 
                        under the management of the public or private 
                        sector;</DELETED>
                        <DELETED>    ``(viii) the optimal plan of the 
                        Committee for storing excess mercury produced 
                        by public and private sources; and</DELETED>
                        <DELETED>    ``(ix) additional research, if 
                        any, required to determine a long-term disposal 
                        option for the storage of excess 
                        mercury.</DELETED>
                <DELETED>    ``(G) Compensation of members.--</DELETED>
                        <DELETED>    ``(i) In general.--</DELETED>
                                <DELETED>    ``(I) Non-federal 
                                employees.--A member of the Committee 
                                who is not an officer or employee of 
                                the Federal Government shall be 
                                compensated at a rate equal to the 
                                daily equivalent of the annual rate of 
                                basic pay prescribed for level V of the 
                                Executive Schedule under section 5316 
                                of title 5, United States Code, for 
                                each day (including travel time) during 
                                which the member is engaged in the 
                                performance of the duties of the 
                                Committee.</DELETED>
                                <DELETED>    ``(II) Federal 
                                employees.--A member of the Committee 
                                who is an officer or employee of the 
                                Federal Government shall serve without 
                                compensation in addition to the 
                                compensation received for the services 
                                of the member as an officer or employee 
                                of the Federal Government.</DELETED>
                        <DELETED>    ``(ii) Travel expenses.--A member 
                        of the Committee shall be allowed travel 
                        expenses, including per diem in lieu of 
                        subsistence, at rates authorized for an 
                        employee of an agency under subchapter I of 
                        chapter 57 of title 5, United States Code, 
                        while away from the home or regular place of 
                        business of the member in the performance of 
                        the duties of the Committee.</DELETED>
                <DELETED>    ``(H) Staff and funding.--The 
                Administrator shall provide to the Committee such 
                funding and additional personnel as are necessary to 
                enable the Committee to perform the duties of the 
                Committee.</DELETED>
                <DELETED>    ``(I) Termination.--The Committee shall 
                terminate 180 days after the date on which the 
                Committee submits the report of the Committee under 
                subparagraph (F).</DELETED>
        <DELETED>    ``(4) Inapplicability of unreasonable risk 
        requirement.--Subsection (a) shall not apply to this 
        subsection.''.</DELETED>

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, 2010, 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) Establishment of Program.--Not later than January 1, 2010, the 
Secretary of Energy (in this section referred to as the ``Secretary'') 
shall accept custody, for the purpose of long-term management and 
storage, of elemental mercury generated within the United States and 
delivered to a facility of the Department of Energy designated by the 
Secretary.
    (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, 2009;
                    (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, 2010, 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, 2012, 
        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 that is stored at a facility with 
        respect to which a permit has been issued under section 3005(c) 
        of the Solid Waste Disposal Act (42 U.S.C. 6925(c)) 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, 2011, 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, 2014, 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.
                                                      Calendar No. 1038

110th CONGRESS

  2d Session

                                 S. 906

                          [Report No. 110-477]

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

           September 22 (legislative day, September 17), 2008

                       Reported with an amendment