[Senate Report 108-199]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 398
108th Congress                                                   Report
                                 SENATE
 1st Session                                                    108-199
======================================================================
 
                     MERCURY REDUCTION ACT OF 2003

                                _______
                                

               November 19, 2003.--Ordered to be printed

                                _______
                                

    Mr. Inhofe, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [to accompany S. 616]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 616) to amend the Solid Waste Disposal Act 
to reduce the quantity of mercury in the environment by 
limiting the use of mercury fever thermometers and improving 
the collection and proper management of mercury, and for other 
purposes, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                               Background

    Mercury is a highly lethal and potent neurotoxin that is 
widespread in the environment. It is particularly harmful to 
developing children and pregnant women. A 2000 National Academy 
of Sciences report attributed mercury exposure to birth defects 
and brain damage in up to 60,000 newborn children each year.
    The Environmental Protection Agency (EPA) has estimated 
that mercury thermometers contributed approximately 17 tons of 
mercury to solid waste per year through the early 1990's. While 
this amount has declined since then, mercury fever thermometers 
continue to represent the largest household source of mercury. 
Replacement of these household thermometers with non-mercury 
alternatives (such as digital thermometers) would go a long way 
toward reducing the amount of mercury that eventually ends up 
in the environment.
    With respect to water pollution, according to the 
Association of Metropolitan Sewerage Agencies, technologies 
that reduce discharges of mercury from wastewater treatment 
plants to required levels are estimated to cost ratepayers and 
taxpayers anywhere from $10 million to $100 million per pound 
of mercury. Again, mercury fever thermometers are one of the 
largest household sources of mercury in wastewater.
    Presently, numerous cities and ten States--Maine, Oregon, 
Indiana, California, New Hampshire, Maryland, Minnesota, 
Connecticut, Rhode Island and Michigan--have already banned the 
sale of mercury fever thermometers. Over 20,000 of the 32,000 
retail stores in the National Association of Chain Drug Stores 
no longer sell mercury thermometers and 11 of the top 15 
national retailers have stopped selling mercury thermometers. 
Moreover, no mercury fever thermometers are manufactured in the 
United States; the primary sources are factories in India and 
China.

                     Objectives of the Legislation

    The bill as reported: (1) prohibits the sale of mercury 
fever thermometers except by prescription, (2) directs the EPA 
to establish a national mercury thermometer collection and 
exchange program, and (3) creates a Federal task force to make 
recommendations to Congress regarding the cost-effective, long-
term management of surplus mercury.

                      Section-By-Section Analysis

Section 1. Short Title
    This section provides that this Act may be cited as the 
``Mercury Reduction Act of 2003''.
Sec. 2. Findings
    This section lists findings of Congress on the hazards of 
mercury to human health, to fish and wildlife, and to the 
environment.
Sec. 3. Mercury
    This section amends the Solid Waste Disposal Act, and adds 
a new provision on mercury. This section contains four 
provisions:
    (1) Prohibition on the sale of mercury fever thermometers-
180 days after the enactment date of the legislation, a person 
shall not sell or supply mercury fever thermometers to 
consumers, except by prescription. With each mercury fever 
thermometer sold or supplied by prescription, the manufacturer 
of the thermometer shall provide clear instructions on both the 
careful handling and proper cleanup of the thermometer and its 
contents in the event of breakage.
    (2) Thermometer exchange program--Directs the Administrator 
of the U.S. Environmental Protection Agency (EPA) to make 
grants to States, municipalities, nonprofit organizations, or 
other suitable entities for implementation of a national 
program for the collection of mercury fever thermometers from 
households and their exchange for thermometers that do not 
contain mercury.
    (3) Management of collected mercury-Requires the 
Administrator of EPA to take title to the mercury collected 
under the thermometer exchange program, or mercury collected 
from any other source, and ensures no release to the 
environment or reintroduction into commerce of this mercury. It 
also requires EPA to conduct research and development on 
permanent means of safely disposing of mercury.
    (4) Interagency Task Force on Mercury-Creates a Task Force 
to be chaired by the Administrator of the Environmental 
Protection Agency with one member each to be appointed by the 
Secretaries of State, Defense, and Energy, and the Director of 
the National Institute of Environmental Health Sciences of the 
Department of Health and Human Services. The Task Force shall 
consult with States, industries, health, environmental, and 
consumer organizations. Not later than 1 year after the 
formation of the Task Force, the Task Force shall submit to 
Congress a report containing recommendations regarding means of 
reducing the total mercury threat to humans and the 
environment, including:

      The long-term management of surplus mercury 
collected from thermometers, and other sources including 
medical, governmental, and industrial sources;
      Programs to test the long-term durability of 
technologies to sequester mercury. It is the intent of the 
committee that `sequester' means stabilization techniques or 
other long-term storage activities;
      Storage of collected surplus mercury in a manner 
that ensures there is no release of the mercury into the 
environment;
      Reduction of the total threat posed by mercury to 
humans and the environment; and
      Effective means of reducing the total amount of 
mercury produced, used, and release on a global basis.

    A provision was inserted to clarify that the inclusion of 
the Task Force under Subtitle C of the Solid Waste Disposal 
Act, which deals with hazardous waste, is not intended to imply 
that anything the Task Force considers should be considered a 
hazardous waste. The Solid Waste Disposal Act and its 
implementing regulations already contain the structure for 
determining when waste materials are hazardous, and nothing in 
the Mercury Reduction Act changes those provisions.
    Finally, the bill authorizes $20 million for grants to 
States and other eligible entities for the collection and 
exchange of mercury fever thermometers and $1 million for EPA's 
safe management and storage of mercury.

                          Legislative History

    On March 13, 2003, Senator Collins introduced S. 616. 
Senators Jeffords, Chafee, Kerry, Hutchison, Reed, Lieberman, 
Voinovich, Dorgan, Leahy and Wyden were cosponsors. The bill 
was referred to the Senate Committee on Environment and Public 
Works. A full committee business meeting was held on April 9, 
2003, and S. 616 was ordered reported to the Senate. S. 616 is 
identical to S. 351 in the 107th Congress, which was reported 
by this committee and passed by the Senate.

                                Hearings

    No hearings were held on S. 616 during the 108th Congress.

                             Rollcall Votes

    The Committee on Environment and Public Works met to 
consider S. 616 on April 9, 2003. The Committee voted favorably 
to report S. 616 by voice vote.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate requires publication of the report 
of the committee's estimate of the regulatory impact made by 
the bill as reported. The bill does not create any additional 
regulatory burdens, nor will it cause any adverse impact on the 
personal privacy of individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that S. 616 would not 
impose any Federal intergovernmental unfunded mandates on 
State, local, or tribal governments.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 21, 2003.

Hon. James M. Inhofe, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 616, the Mercury 
Reduction Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff is Susanne S. Mehlman, 
who can be reached at 226-2860.
            Sincerely,
                                        Douglas Holtz-Eakin
                              ----------                              

S. 616, Mercury Reduction Act of 2003, as ordered reported by the 
        Senate Committee on Environment and Public Works on April 9, 
        2003
Summary
    Enacting S. 616 would impose a ban on the sale of mercury 
fever thermometers, except by prescription. This bill would 
authorize the Environmental Protection Agency (EPA) to provide 
grants to States, municipalities, and nonprofit organizations 
for implementation of a national program to help consumers 
exchange their mercury thermometers for thermometers that do 
not contain mercury. In addition, S. 616 would create an 
interagency task force (to be chaired by the Administrator of 
EPA) that would consult with States, industry representatives, 
and health, environmental, and consumer organizations to 
develop recommendations for reducing the long-term threat of 
mercury to humans and the environment. EPA also would be 
responsible for disposing of the mercury waste collected under 
the thermometer exchange program and for conducting research 
and development on permanent methods for disposing of mercury.
    The bill would authorize the appropriation of $19 million 
for the grant program, $1 million per year for safe management 
and disposal of the mercury collected, and $1 million for 
administrative support for the interagency task force. Assuming 
appropriation of the specified amounts, CBO estimates that 
implementing this legislation would cost $25 million over the 
2004-2008 period. The bill would not affect direct spending or 
revenues.
    S. 616 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
the cost of complying with the mandate would not be significant 
and would not exceed the threshold established in that act ($59 
million in 2003, adjusted annually for inflation).
    S. 616 also contains private-sector mandates, as defined in 
UMRA, on the sellers and suppliers of mercury fever 
thermometers. CBO estimates that the direct cost of those 
mandates would fall below the annual threshold established by 
UMRA ($117 million in 2003, adjusted annually for inflation).
Estimated Cost to the Federal Government
    The estimated budgetary impact of S. 616 is shown in the 
following table. CBO estimates that implementing the bill would 
cost $25 million over the 2004-2008 period, assuming 
appropriation of the authorized amounts. This estimate is based 
on historical spending patterns for similar activities. The 
costs of this legislation fall within budget function 300 
(natural resources and environment).


                 By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
                                   2004    2005    2006    2007    2008
------------------------------------------------------------------------
 CHANGES IN SPENDING SUBJECT TO
          APPROPRIATION
Thermometer Exchange Program:
    Estimated Authorization           19       0       0       0       0
     Level......................
    Estimated Outlays...........      10       6       3       0       0

Safe Management and Disposal of
 Mercury:
    Authorization Level.........       1       1       1       1       1
    Estimated Outlays...........       1       1       1       1       1

     Interagency Task Force:
Authorization Level.............       1       0       0       0       0
Estimated Outlays...............       1       0       0       0       0

Total Proposed Changes
Estimated Authorization Level...      21       1       1       1       1
Estimated Outlays...............      12       7       4       1       1
------------------------------------------------------------------------

Estimated Impact on State, Local, and Tribal Governments
    S. 616 would prohibit the sale of mercury thermometers 
without a prescription. Since public hospitals own their own 
pharmacies, this prohibition would constitute an 
intergovernmental mandate as defined in UMRA. Based on 
information from the Public Hospital Pharmacy Coalition, CBO 
estimates that the cost of complying with the mandate would not 
be significant and would not exceed the threshold established 
in that act ($59 million in 2003, adjusted annually for 
inflation). The remaining provisions of the bill contain no 
mandates and would impose no costs on State, local, or tribal 
governments.
Estimated Impact on the Private Sector
    S. 616 contains two private-sector mandates as defined in 
UMRA. The bill would prohibit the sale or supply of mercury 
fever thermometers, except by prescription. Second, for each 
mercury thermometer sold or supplied by prescription, the 
manufacturer of the thermometer would be required to provide 
clear instructions on the careful handling of the thermometer 
to avoid breakage and on the proper cleanup of the thermometer 
and its contents in the event of breakage.
    Over the past decade, the numbers of mercury fever 
thermometers sold and supplied has declined because of the 
environmental and health risks of mercury. Manufacturers, 
hospitals and most large retail stores have generally shifted 
away from the production, use, and sale of mercury fever 
thermometers. Currently, 10 States and about 15 municipalities 
have enacted bans on mercury thermometers, and over 10 national 
retail chains have voluntarily committed to sell only mercury-
free thermometers.
    Given the current trend in the industry, and State, 
hospital, and retail bans of mercury fever thermometers, the 
bill would affect only a small number of manufacturers, 
sellers, and suppliers. Lost income due to a loss in sales 
would not be significant. In addition, the cost for a 
manufacturer to provide an insert with clear instructions on 
handling and cleanup would be small. Thus, CBO estimates that 
the direct cost of private-sector mandates in the bill would be 
below the annual threshold established by UMRA ($117 million in 
2003, adjusted annually for inflation).

Estimate Prepared By: Federal Costs: Susanne S. Mehlman; Impact 
on State, Local, and Tribal Governments: Gregory Waring; Impact 
on the Private Sector: Cecil McPherson.

Estimate Approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

                       SOLID WASTE DISPOSAL ACT 

                     TITLE II--SOLID WASTE DISPOSAL

                     Subtitle A--General Provisions

                   short title and table of contents

                     Subtitle A--General Provisions

Sec. 1001. Short title and table of contents.

           *       *       *       *       *       *       *

Sec. 3024. Mercury.

           *       *       *       *       *       *       *

      Sec. 1001. * * *

           *       *       *       *       *       *       *


                 Subtitle C--Hazardous Waste Management

SEC. 3001. IDENTIFICATION AND LISTING OF HAZARDOUS WASTE.

           *       *       *       *       *       *       *


SEC. 3023. FEDERALLY OWNED TREATMENT WORKS.

    (a) * * *

           *       *       *       *       *       *       *


SEC. 3024. MERCURY.

    (a) Prohibition on Sale of Mercury Fever Thermometers 
Except by Prescription.--Effective beginning 180 days after the 
date of enactment of this section--
            (1) a person shall not sell or supply mercury fever 
        thermometers to consumers, except by prescription; and
            (2) with each mercury fever thermometer sold or 
        supplied by prescription, the manufacturer of the 
        thermometer shall provide clear instructions on--
                    (A) careful handling of the thermometer to 
                avoid breakage; and
                    (B) proper cleanup of the thermometer and 
                its contents in the event of breakage.
    (b) Thermometer Exchange Program.--The Administrator shall 
make grants to States, municipalities, nonprofit organizations, 
or other suitable entities for implementation of a national 
program for the collection of mercury fever thermometers from 
households and their exchange for thermometers that do not 
contain liquid mercury.
    (c) Management of Collected Mercury.--
            (1) Task force.--
                    (A) Establishment.--There is established an 
                advisory committee to be known as the `Task 
                Force on Mercury' (referred to in this section 
                as the `Task Force').
                    (B) Membership.--The Task Force shall be 
                composed of 5 members, of whom--
                            (i) 1 member shall be the 
                        Administrator, who shall serve as 
                        Chairperson of the Task Force;
                            (ii) 1 member shall be the 
                        Secretary of State;
                            (iii) 1 member shall be the 
                        Secretary of Defense;
                            (iv) 1 member shall be the 
                        Secretary of Energy; and
                            (v) 1 member shall be the Director 
                        of the National Institute of 
                        Environmental Health Sciences of the 
                        Department of Health and Human 
                        Services.
                    (C) Term; vacancies.--
                            (i) Term.--A member shall be 
                        appointed for the life of the Task 
                        Force.
                            (ii) Vacancies.--A vacancy on the 
                        Task Force--
                                    (I) shall not affect the 
                                powers of the Task Force; and
                                    (II) shall be filled in the 
                                same manner as the original 
                                appointment was made.
                    (D) Meetings.--
                            (i) Initial meeting.--Not later 
                        than 30 days after the date of 
                        enactment of this section, the Task 
                        Force shall hold the initial meeting of 
                        the Task Force.
                            (ii) Calling of meetings.--The Task 
                        Force shall meet at the call of the 
                        Chairperson.
                            (iii) Quorum.--A majority of the 
                        members of the Task Force shall 
                        constitute a quorum, but a lesser 
                        number of members may hold hearings.
                    (E) Duties.--
                            (i) In general.--Not later than 1 
                        year after the date of the initial 
                        meeting of the Task Force, the Task 
                        Force shall submit to Congress a report 
                        containing recommendations and 
                        suggested actions concerning--
                                    (I) the long-term 
                                management of surplus mercury 
                                collected from--
                                            (aa) mercury fever 
                                        thermometers;
                                            (bb) other medical 
                                        and commercial sources;
                                            (cc) government 
                                        sources, including 
                                        mercury stored by the 
                                        Department of Defense 
                                        and the Department of 
                                        Energy; and
                                            (dd) industrial or 
                                        other sources in the 
                                        United States;
                                    (II) programs to test the 
                                long-term durability of 
                                promising technologies for 
                                sequestration of mercury;
                                    (III) storage of mercury 
                                collected or sequestered under 
                                subclause (I) or (II), in a 
                                manner that ensures that there 
                                is no release of the mercury 
                                into the environment;
                                    (IV) reduction of the total 
                                threat posed by mercury to 
                                humans and the environment; and
                                    (V) reduction of the total 
                                quantity of mercury produced, 
                                used, and released on a global 
                                basis, including whether and 
                                how--
                                            (aa) the quantity 
                                        of virgin mercury mined 
                                        from the ground and 
                                        placed in circulation 
                                        each year can be 
                                        reduced through 
                                        bilateral or 
                                        international 
                                        agreements or other 
                                        means;
                                            (bb) the quantity 
                                        of mercury 
                                        intentionally used in 
                                        products, mining, and 
                                        manufacturing can be 
                                        reduced through 
                                        substitution of 
                                        mercury-free 
                                        alternatives that are 
                                        safer, available, and 
                                        affordable; and
                                            (cc) essential 
                                        mercury needs can be 
                                        met through use of 
                                        stockpiles in existence 
                                        on the date of 
                                        enactment of this 
                                        section rather than 
                                        through use of virgin 
                                        mercury.
                            (ii) Consultation.--In carrying out 
                        this subparagraph, the Task Force shall 
                        consult with States, industries, and 
                        health, environmental, and consumer 
                        organizations.
                    (F) Hearings.--The Task Force may hold such 
                hearings, sit and act at such times and places, 
                take such testimony, and receive such evidence 
                as the Task Force considers advisable to carry 
                out this section.
                    (G) Information from federal agencies.--
                            (i) In general.--The Task Force may 
                        secure directly from a Federal agency 
                        such information as the Task Force 
                        considers necessary to carry out this 
                        section.
                            (ii) Provision of information.--On 
                        request of the Chairperson of the Task 
                        Force, the head of the agency shall 
                        provide the information to the Task 
                        Force.
                    (H) Postal services.--The Task Force may 
                use the United States mails in the same manner 
                and under the same conditions as other agencies 
                of the Federal Government.
                    (I) Gifts.--The Task Force may accept, use, 
                and dispose of gifts or donations of services 
                or property.
                    (J) Compensation of members; travel 
                expenses.--
                            (i) Federal employees.--A member of 
                        the Task Force 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.
                            (ii) Travel expenses.--A member of 
                        the Task Force 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 Task Force.
                    (K) Staff and funding.--
                            (i) Determination.--The Chairperson 
                        of the Task Force shall determine the 
                        level of staff and funding that are 
                        adequate to carry out the activities of 
                        the Task Force.
                            (ii) Source.--The staff and funding 
                        shall be provided by and drawn equally 
                        from the resources of--
                                    (I) the Department of 
                                Energy;
                                    (II) the Department of 
                                Defense; and
                                    (III) the Environmental 
                                Protection Agency.
                            (iii) Appointment of staff.--The 
                        Chairperson may, without regard to the 
                        civil service laws (including 
                        regulations), appoint and terminate 
                        such staff as arenecessary to enable 
the Task Force to perform the duties of the Task Force.
                            (iv) Compensation.--
                                    (I) In general.--Except as 
                                provided in subclause (II), the 
                                Chairperson may fix the 
                                compensation of the staff of 
                                the Task Force that are not 
                                officers or employees of the 
                                Federal Government without 
                                regard to the provisions of 
                                chapter 51 and subchapter III 
                                of chapter 53 of title 5, 
                                United States Code, relating to 
                                classification of positions and 
                                General Schedule pay rates.
                                    (II) Maximum rate of pay.--
                                The rate of pay for the staff 
                                shall not exceed the rate 
                                payable for level V of the 
                                Executive Schedule under 
                                section 5316 of title 5, United 
                                States Code.
                            (v) Detail of federal government 
                        employees.--
                                    (I) In general.--An 
                                employee of the Federal 
                                Government may be detailed to 
                                the Task Force without 
                                reimbursement.
                                    (II) Civil service 
                                status.--The detail of the 
                                employee shall be without 
                                interruption or loss of civil 
                                service status or privilege.
                            (vi) Procurement of temporary and 
                        intermittent services.--The Chairperson 
                        of the Task Force may procure for the 
                        purposes of the Task Force temporary 
                        and intermittent services in accordance 
                        with section 3109(b) of title 5, United 
                        States Code, at rates for individuals 
                        that do not exceed the daily equivalent 
                        of the annual rate of basic pay 
                        prescribed for level V of the Executive 
                        Schedule under section 5316 of that 
                        title.
                    (L) Termination of task force.--The Task 
                Force shall terminate on the date that is 90 
                days after the date on which the Task Force 
                submits the report required under subparagraph 
                (E)(i).
                    (M) No effect on other law.--Nothing in 
                this paragraph affects the regulation of 
                mercury under--
                            (i) any other provision of this 
                        subtitle; or
                            (ii) any other law.
            (2) Responsibility of the administrator for safe 
        management and storage of mercury.--In consultation 
        with the Task Force, the Administrator shall--
                    (A)(i) purchase or otherwise take title to 
                the mercury collected under the thermometer 
                exchange program established under subsection 
                (b), or collected from any other source;
                    (ii) manage (or designate a contractor to 
                manage) the mercury collected in a manner that 
                ensures that the mercury collected is not 
                released into the environment;
                    (iii) ensure, to the maximum extent 
                practicable, that the mercury collected under 
                the thermometer exchange program established 
                under subsection (b), or an equivalent quantity 
                of mercury, is not reintroduced into commerce; 
                and
                    (iv) provide to the Task Force, for 
                inclusion in the report of the Task Force under 
                paragraph (1)(F)(i), an analysis of, and 
                recommendations relating to, the mercury 
                collection and management activities carried 
                out under this section; and
                    (B)(i) identify potential mercury 
                stabilization technologies and long-term 
                storage measures that ensure minimal release of 
                mercury into the environment; and
                    (ii) conduct such research, development, 
                and demonstration of the technologies and 
                measures as the Administrator determines to be 
                appropriate.
    (d) Relation to Other Law.--Nothing in this section--
            (1) precludes any State from imposing any 
        additional requirement; or
            (2) diminishes any obligation, liability, or other 
        responsibility under other Federal law.
    (e) Authorization of Appropriations.--
            (1) In general.--There is authorized to be 
        appropriated to carry out this section (other than 
        subsection (c)(2)(A)) $20,000,000, of which--
                    (A) not more than 2.5 percent shall be used 
                to carry out the activities of the Task Force; 
                and
                    (B) not more than 2.5 percent shall be used 
                to carry out subsection (c)(2)(B).
            (2) Safe management and storage.--In addition to 
        the amount authorized to be appropriated under 
        paragraph (1), there is authorized to be appropriated 
        to carry out subsection (c)(2)(A) $1,000,000 for each 
        fiscal year.

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