[Congressional Record Volume 154, Number 154 (Friday, September 26, 2008)]
[Senate]
[Pages S9874-S9876]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                MERCURY MARKET MINIMIZATION ACT OF 2007

  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the 
Senate proceed to the immediate consideration of Calendar No. 1038, S. 
906.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 906) to prohibit the sale, distribution, 
     transfer, and export of elemental mercury, and other 
     purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Environment and Public 
Works, with an amendment to strike all after the enacting clause and 
insert in lieu thereof the following:

     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

[[Page S9875]]

     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.--

[[Page S9876]]

       (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.

  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Boxer 
substitute amendment be agreed to, the committee-reported substitute 
amendment, as amended, be agreed to, the bill, as amended, be read a 
third time and passed, the motion to reconsider be laid upon the table, 
with no intervening action or debate, and that any statements relating 
to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 5673) was agreed to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The committee amendment, in the nature of a substitute, as amended, 
was agreed to.
  The bill (S. 906), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

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