[House Report 111-381]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-381

======================================================================



 
                    MERCURY POLLUTION REDUCTION ACT

                                _______
                                

 December 16, 2009.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Waxman, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2190]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2190) to amend the Toxic Substances Control Act 
to phase out the use of mercury in the manufacture of chlorine 
and caustic soda, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Legislative History..............................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings and Recommendations.................    13
New Budget Authority, Entitlement Authority, and Tax Expenditures    13
Statement of General Performance Goals and Objectives............    13
Constitutional Authority Statement...............................    13
Earmarks and Tax and Tariff Benefits.............................    13
Federal Advisory Committee Statement.............................    13
Applicability of Law to Legislative Branch.......................    13
Federal Mandates Statement.......................................    13
Committee Cost Estimate..........................................    14
Congressional Budget Office Cost Estimate........................    14
Section-by-Section Analysis of the Legislation...................    15
Explanation of Amendments........................................    16
Changes in Existing Law Made by the Bill, as Reported............    16
Dissenting Views.................................................    18

                               Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Mercury Pollution Reduction Act''.

SEC. 2. FINDINGS.

    Congress finds that--
          (1) mercury and mercury compounds are 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 their bloodstreams at a level 
        that could pose risks to their unborn babies, and hundreds of 
        thousands of children born annually in the United States are at 
        risk of neurological problems relating to mercury exposure in 
        utero;
          (3) the most significant source of mercury exposure to people 
        in the United States is ingestion of mercury-contaminated fish;
          (4) the long-term solution to mercury pollution is to 
        minimize global mercury use and releases of mercury 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 for people worldwide;
          (5) mercury pollution is a transboundary pollutant that--
                  (A) is deposited locally, regionally, and globally; 
                and
                  (B) affects bodies of water near industrial areas, 
                such as the Great Lakes, as well as bodies of water in 
                remote areas, such as the Arctic Circle;
          (6) of the approximately 30 plants in the United States that 
        produce chlorine, only 7 use the obsolete ``mercury cell'' 
        chlor-alkali process, and 4 have not yet committed to phasing 
        out mercury use;
          (7)(A) less than 5 percent of the total quantity of chlorine 
        and caustic soda produced in the United States comes from the 
        chlor-alkali plants described in paragraph (6) that use the 
        mercury cell chlor-alkali process;
          (B) cost-effective alternatives are available and in use in 
        the remaining 95 percent of chlorine and caustic soda 
        production; and
          (C) other countries, including Japan, have already banned the 
        mercury cell chlor-alkali process;
          (8) the chlor-alkali industry acknowledges that--
                  (A) mercury can contaminate products manufactured at 
                mercury cell facilities; and
                  (B) the use of some of those products results in the 
                direct and indirect release of mercury;
          (9) despite those quantities of mercury known to have been 
        used or to be in use, neither the chlor-alkali industry nor the 
        Environmental Protection Agency is able--
                  (A) to adequately account for the disposition of the 
                mercury used at those facilities; or
                  (B) to accurately estimate current mercury emissions; 
                and
          (10) it is critically important that the United States work 
        aggressively toward the minimization of supply, demand, and 
        releases of mercury, both domestically and internationally.

SEC. 3. STATEMENT OF POLICY.

    Congress declares that the United States should develop policies 
and programs that will--
          (1) reduce mercury use and emissions within the United 
        States;
          (2) reduce mercury releases from the reservoir of mercury 
        currently in use or circulation within the United States; and
          (3) reduce exposures to mercury, particularly exposures of 
        women of childbearing age and young children.

SEC. 4. USE OF MERCURY IN CHLORINE AND CAUSTIC SODA MANUFACTURING.

    (a) In General.--Title I of the Toxic Substances Control Act (15 
U.S.C. 2601 et seq.) is amended by inserting after section 6 the 
following:

``SEC. 6A. USE OF MERCURY IN CHLORINE AND CAUSTIC SODA MANUFACTURING.

    ``(a) Definition of Chlor-alkali Facility.--In this section, the 
term `chlor-alkali facility' means a facility used for the manufacture 
of chlorine or caustic soda using a mercury cell process.
    ``(b) Prohibition.--
          ``(1) In general.--Except as otherwise provided in this 
        subsection, it shall be unlawful to manufacture chlorine or 
        caustic soda using mercury cells at any facility in the United 
        States.
          ``(2) Notice.--The owner or operator of any existing chlor-
        alkali facility shall notify the Administrator no later than 
        June 30, 2012, whether it will--
                  ``(A) replace its chlor-alkali facility with a new 
                manufacturing facility that does not use mercury; or
                  ``(B) cease operations.
          ``(3) Closure.--A chlor-alkali facility for which a closure 
        notice is filed under paragraph (2)(B) shall cease 
        manufacturing chlorine or caustic soda using mercury cells no 
        later than June 30, 2013.
          ``(4) Replacement.--A chlor-alkali facility for which a 
        replacement notice is filed under paragraph (2)(A) may continue 
        to manufacture chlorine or caustic soda using mercury cells 
        until all of the permitting, financing, engineering, and 
        construction of a non-mercury replacement facility is complete, 
        or June 30, 2015, whichever is earlier.
    ``(c) Export Ban.--Effective on the date of the enactment of this 
section, the export of any elemental mercury or the sale of elemental 
mercury for purposes of export, including compounds and mixtures 
containing elemental mercury, by the owner or operator of a chlor-
alkali facility is prohibited.
    ``(d) Savings Provision.--Nothing in this section affects the 
ability of the owner or operator of any chlor-alkali facility to store 
elemental mercury in accordance with section 5(g)(2) of the Mercury 
Export Ban Act of 2008 (42 U.S.C. 6939f).''.
    (b) Conforming Amendments.--(1) The table of contents of the Toxic 
Substances Control Act (15 U.S.C. 2601 note) is amended by inserting 
after the item relating to section 6 the following:

Sec. 6A. Use of mercury in chlorine and caustic soda manufacturing.''.

      (2) Paragraphs (1) and (2) of section 15 of such Act are each 
amended by striking ``or 6'' and inserting ``, 6 or 6A''.

                          Purpose and Summary

    H.R. 2190, the ``Mercury Pollution Reduction Act'', was 
introduced on April 30, 2009, by Rep. Janice Schakowsky (D-IL). 
H.R. 2190 is intended to eliminate a significant source of 
mercury pollution by prohibiting the manufacture of chlorine or 
caustic soda using mercury in the United States. In addition, 
the bill prohibits the export of mercury and mercury compounds 
by chlor-alkali facilities, effective immediately upon 
enactment.

                  Background and Need for Legislation

    Mercury pollution is a threat to the environment and to 
public health. It is a known neurotoxin that accumulates in the 
body and can cause serious, permanent harm to human health, 
especially to children. Mercury can be emitted from both 
natural and man-made sources into the air, water or land, 
resulting in contamination of the local, regional, and global 
environment. EPA estimates that one-third of mercury emissions 
from the United States stay within our nation's borders, with a 
disparate amount deposited in the Northeast due to weather 
patterns, while the balance enters the global ecosystem.\1\ 
Once in the environment, mercury can alter into a more toxic 
form, methylmercury, which builds up in the fish that humans 
consume.
---------------------------------------------------------------------------
    \1\Environmental Protection Agency, Mercury: Human Exposure (online 
at www.epa.gov/mercury/exposure.htm) (accessed Dec. 14, 2009).
---------------------------------------------------------------------------
    One significant source of mercury emissions in the United 
States is chlorine production, although mercury is not 
necessary to the production of chlorine, and not all chlorine 
plants use mercury technology. In fact, more than 95% of the 
chlorine production capacity in the United States is now 
mercury-free. Only four chlor-alkali plants in the United 
States continue to use an outdated technology that releases 
mercury in significant quantities into the communities in which 
they operate, without any plans to modernize to the alternative 
mercury-free technologies. All of the areas surrounding the 
four facilities have fishing advisories warning of elevated 
mercury levels.\2\
---------------------------------------------------------------------------
    \2\Ohio Environmental Protection Agency, Ohio Sport Fish 
Consumption Advisory--Ashtabula County (online at www.epa.state.oh.us/
dsw/fishadvisory/counties/Ashtabula.aspx) (accessed Dec. 14, 2009); 
Tennessee Wildlife Resources Agency, Contaminants in Fish (online at 
www.state.tn.us/twra/fish/contaminants.html) (accessed Dec. 14, 2009); 
West Virginia Department of Health and Human Resources, Fish 
Consumption Advisories Available for 2009 (online at www.wvdhhr.org/
fish/currrent.asp) (accessed Dec. 14, 2009); Georgia Department of 
Natural Resources, Guidelines for Eating Fish from Georgia Waters 
(2007) (online at www.gaepd.org/Files_PDF/gaenviron/fish_advisory/
GADNR_FishConsumptionGuidelines_Y2007.pdf)
---------------------------------------------------------------------------
    Current law does not adequately address the use of mercury 
in chlorine production. While the Environmental Protection 
Agency (EPA) has taken steps since 2002 towards reducing 
mercury emissions from chlor-alkali plants under the Clean Air 
Act,\3\ these facilities continue to emit significant amounts 
of mercury each year despite the availability of safer, 
mercury-free technologies.
---------------------------------------------------------------------------
    \3\Environmental Protection Agency, Rule and Implementation 
Information for National Emission Standards for Hazardous Air 
Pollutants: Mercury Emissions From Mercury Cell Chlor-Alkali Plants 
(online at www.epa.gov/ttn/atw/hgcellcl/hgcellclpg.html) (accessed Dec. 
14, 2009).
---------------------------------------------------------------------------
    There are significant costs associated with modernization 
of these facilities, estimated in an internal EPA memorandum to 
be on average $84 million per facility.\4\ This memorandum, 
however, goes on to state that ``the conversion, once 
completed, would have many benefits, including less energy 
demand and fewer procedures that are required to support the 
purchase and handling of mercury, a hazardous substance.''
---------------------------------------------------------------------------
    \4\Memorandum from Donna Lee Jones, PhD, EPA/OAQPS/SPDD/MMG; 
Heather P. Brown, P.E., and Phil Norwood, EC/R Incorporated to Project 
File--Mercury Chlor-Alkali NESHAP, Revised Conversion Costs and 
Baseline Emissions--Conversion from Mercury Cell Chlor-Alkali to 
Membrane Cell Technology (Sept. 15, 2009).
---------------------------------------------------------------------------

                          Legislative History

    The Mercury Pollution Reduction Act originally was 
introduced as H.R. 5580, the Missing Mercury in Manufacturing 
Monitoring and Mitigation Act, in the 110th Congress. That bill 
was introduced by Rep. Janice Schakowsky, for herself and Reps. 
Henry Waxman (D-CA), Keith Ellison (D-MN), and Mazie K. Hirono 
(D-HI).
    On April 30, 2009, Rep. Schakowsky, for herself and Reps. 
Howard L. Berman (D-CA), Earl Blumenauer (D-OR), Russ Carnahan 
(D-MO), Rosa L. DeLauro (D-CT), Keith Ellison (D-MN), Sam Farr 
(D-CA), Raul M. Grijalva (D-AZ), Phil Hare (D-IL), Mazie K. 
Hirono (D-HI), Barbara Lee (D-CA), James P. Moran (D-VA), Grace 
F. Napolitano (D-CA), Eleanor Holmes Norton (D-DC), Frank 
Pallone, Jr. (D-NJ), David E. Price (D-NC), Joe Sestak (D-PA), 
Diane E. Watson (D-CA), and Lynn C. Woolsey (D-CA), 
reintroduced the bill as the ``Mercury Pollution Reduction 
Act'' in the 111th Congress. The bill was referred to the 
Subcommittee on Commerce, Trade, and Consumer Protection on May 
1, 2009.
    On May 12, 2009, the Subcommittee on Commerce, Trade, and 
Consumer Protection held a legislative hearing on H.R. 2190. 
Testimony was heard by witnesses representing industry as well 
as public health and academic organizations.

                        Committee Consideration

    On June 3, 2009, the Subcommittee met in open markup 
session to consider H.R. 2190. An amendment in the nature of a 
substitute, offered as a manager's amendment by Subcommittee 
Chairman Bobby L. Rush, made several changes to the bill as 
introduced. The manager's amendment provided a legal mechanism 
for the affected facilities to store mercury between the date 
of enactment and the date on which a permanent storage facility 
becomes available, which is currently scheduled for January 
2013. It also deleted reporting and inventory requirements seen 
as redundant with current obligations. The Subcommittee 
subsequently favorably forwarded H.R. 2190 to the full 
Committee, amended, by a rollcall vote of 16 yeas to 10 nays.
    The Committee on Energy and Commerce met in open markup 
session on October 21, 2009, to consider H.R. 2190. An 
amendment offered by Rep. Charlie Melancon (D-LA) to modify the 
process and deadlines for transition was approved by a voice 
vote. The Committee subsequently ordered H.R. 2190 reported to 
the House, amended, by a rollcall vote of 29 yeas and 14 nays.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments and motions 
thereto. The Committee agreed to a motion by Mr. Waxman to 
order H.R. 2190 favorably reported to the House, amended, by a 
record vote of 29 yeas and 14 nays. The following is the 
recorded votes taken during Committee consideration, including 
the names of those Members voting for and against:


            Committee Oversight Findings and Recommendations

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the oversight findings and recommendations of the Committee are 
reflected in the descriptive portions of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that H.R. 2190 
would result in no new budget authority, entitlement authority, 
or tax expenditures or revenues.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the performance goals and 
objectives of the Committee are reflected in the descriptive 
portions of this report.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 2190. Article I, section 8, clauses 3 and 18 
of the Constitution of the United States grants the Congress 
the power to enact this law.

                  Earmarks and Tax and Tariff Benefits

    H.R. 2190 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                  Federal Advisory Committee Statement

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., section 5(b).

             Applicability of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to terms and conditions of 
employment or access to public services and accommodations. 
H.R. 2190 does not relate to employment or access to public 
services and accommodations in the legislative branch.

                       Federal Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement on 
whether the provisions of the report include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office included herein.

                        Committee Cost Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 2190. Clause 3(d)(3)(B) of that rule provides, however, 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

               Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for H.R. 2190 from the 
Director of the Congressional Budget Office:

                                                  October 30, 2009.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2190, the Mercury 
Pollution Reduction Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2190--Mercury Pollution Reduction Act

    H.R. 2190 would prohibit the manufacture of chlorine or 
caustic soda using mercury in the United States. Manufacturers 
would have until June 30, 2012, to notify the Environmental 
Protection Agency (EPA) whether they intend to replace their 
manufacturing processes with mercury-free processes or cease 
manufacturing. This legislation also would prohibit the export 
from the United States of any mixtures containing mercury, 
effective immediately upon enactment.
    Because only a few facilities in the United States 
currently use manufacturing processes involving mercury, CBO 
estimates that enacting this bill would not impose any 
significant costs on EPA. Any additional administrative or 
enforcement costs incurred would be subject to the availability 
of appropriations. Enacting this legislation would not affect 
direct spending or revenues.
    H.R. 2190 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments.
    By prohibiting the export or use of mercury by facilities 
that manufacture chlorine or caustic soda, H.R. 2190 would 
impose mandates as defined in UMRA. According to information 
from EPA, four facilities in the United States use mercury for 
those purposes. The bill would require those facilities to 
cease operations by June 30, 2013, or convert to a 
manufacturing process that does not use mercury by June 30, 
2015. Based on information from the U.S. Geological Survey 
Yearbook and because only a small number of facilities would be 
affected, CBO estimates that the cost of prohibiting exports 
would be minimal. Using information from EPA and industry 
sources, CBO estimates that, whichever method the facilities 
use to comply with the prohibition on using mercury in the 
manufacturing process, the direct cost of the mandates would be 
substantial. However, CBO estimates that the costs probably 
would fall below the annual threshold established in UMRA ($139 
million in 2009, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for federal costs) and Sam Wice (for the private-
sector impact). The estimate was approved by Theresa Gullo, 
Deputy Assistant Director for Budget Analysis.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 provides that the short title of H.R. 2190 is the 
``Mercury Pollution Reduction Act''.

Section 2. Findings

    Section 2 describes findings by Congress regarding the 
toxicity of and exposure to mercury and mercury compounds, and 
the use of mercury in chlor-alkali facilities and the 
availability of alternative mercury-free processes.

Section 3. Statement of policy

    Section 3 describes a declaration of policy by Congress 
that the United States should develop policies and programs 
that will reduce mercury use and emissions.

Section 4. Use of mercury in chlorine and caustic soda manufacturing

    Section 4 inserts a new section 6A, Use of Mercury in 
Chlorine and Caustic Soda Manufacturing, within Title I of the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.).
    New section 6A(a) defines ``chlor-alkali facility'' to mean 
a facility used for the manufacture of chlorine or caustic soda 
using a mercury cell process.
    New section 6A(b)(1) prohibits the manufacturing of 
chlorine or caustic soda using mercury cells at any facility in 
the United States.
    New section 6A(b)(2) directs the owner or operator of a 
chlor-alkali facility to notify the Administrator of EPA by 
June 30, 2012, whether it will (A) modernize to a process that 
does not use mercury, or (B) cease operations. This will allow 
sufficient time for the facilities to conduct the economic and 
physical planning necessary prior to making a determination.
    New section 6A(b)(3) requires facilities that notify the 
Administrator of their decision to close shall do so no later 
than June 30, 2013.
    New section 6A(b)(4) requires facilities that notify the 
Administrator of their decision to modernize to do so no later 
than June 30, 2015. This provides the facilities three years to 
complete the modernization process after notifying the 
Administrator. To date, no facility that has modernized has 
taken longer than 2 years and 10 months to complete the 
process.
    New section 6(A)(c) prohibits the export or sale for 
purposes of export of any elemental mercury, including mercury 
compounds or mixtures containing elemental mercury, from any 
chlor-alkali facility, effective on the date of enactment.
    New section 6(A)(d) provides for the owner or operator to 
store elemental mercury in accordance with the Mercury Export 
Ban Act of 2008 (42 U.S.C. 6939f).

                       Explanation of Amendments

    The Committee adopted an amendment offered by Rep. Melancon 
striking subsection (b) of new section 6A that would prohibit 
mercury cell production at any chlor-alkali plant 24 months 
after the date of enactment, and inserting a new subsection (b) 
that requires the owner or operator of a chlor-alkali facility 
to notify the Administrator of EPA of its decision to modernize 
or close by June 30, 2012, and to follow through with closure 
by June 30, 2013, or with modernization by June 30, 2015. This 
amendment provides the companies with sufficient time, until 
June 30, 2012, to make this decision to modernize or close. All 
3 affected companies have indicated that they could modernize 
within 3 years, as provided by this amendment.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, 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):

                      TOXIC SUBSTANCES CONTROL ACT


                  TITLE I--CONTROL OF TOXIC SUBSTANCES


SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

This Act may be cited as the ``Toxic Substances Control Act''.

                            TABLE OF CONTENTS

                  TITLE I--CONTROL OF TOXIC SUBSTANCES

     * * * * * * *
Sec. 6A. Use of mercury in chlorine and caustic soda manufacturing.

           *       *       *       *       *       *       *


SEC. 6A. USE OF MERCURY IN CHLORINE AND CAUSTIC SODA MANUFACTURING.

  (a) Definition of Chlor-Alkali Facility.--In this section, 
the term ``chlor-alkali facility'' means a facility used for 
the manufacture of chlorine or caustic soda using a mercury 
cell process.
  (b) Prohibition.--
          (1) In general.--Except as otherwise provided in this 
        subsection, it shall be unlawful to manufacture 
        chlorine or caustic soda using mercury cells at any 
        facility in the United States.
          (2) Notice.--The owner or operator of any existing 
        chlor-alkali facility shall notify the Administrator no 
        later than June 30, 2012, whether it will--
                  (A) replace its chlor-alkali facility with a 
                new manufacturing facility that does not use 
                mercury; or
                  (B) cease operations.
          (3) Closure.--A chlor-alkali facility for which a 
        closure notice is filed under paragraph (2)(B) shall 
        cease manufacturing chlorine or caustic soda using 
        mercury cells no later than June 30, 2013.
          (4) Replacement.--A chlor-alkali facility for which a 
        replacement notice is filed under paragraph (2)(A) may 
        continue to manufacture chlorine or caustic soda using 
        mercury cells until all of the permitting, financing, 
        engineering, and construction of a non-mercury 
        replacement facility is complete, or June 30, 2015, 
        whichever is earlier.
  (c) Export Ban.--Effective on the date of the enactment of 
this section, the export of any elemental mercury or the sale 
of elemental mercury for purposes of export, including 
compounds and mixtures containing elemental mercury, by the 
owner or operator of a chlor-alkali facility is prohibited.
  (d) Savings Provision.--Nothing in this section affects the 
ability of the owner or operator of any chlor-alkali facility 
to store elemental mercury in accordance with section 5(g)(2) 
of the Mercury Export Ban Act of 2008 (42 U.S.C. 6939f).

           *       *       *       *       *       *       *


SEC. 15. PROHIBITED ACTS.

  It shall be unlawful for any person to--
          (1) fail or refuse to comply with (A) any rule 
        promulgated or order issued under section 4, (B) any 
        requirement prescribed by section 5 [or 6], 6 or 6A, 
        (C) any rule promulgated or order issued under section 
        5 or 6, or (D) any requirement of title II or any rule 
        promulgated or order issued under title II;
          (2) use for commercial purposes a chemical substance 
        or mixture which such person knew or had reason to know 
        was manufactured, processed, or distributed in commerce 
        in violation of section 5 or 6, a rule or order under 
        section 5 [or 6], 6 or 6A, or an order issued in action 
        brought under section 5 or 7;

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We, the undersigned Members of the Committee on Energy and 
Commerce, oppose the passage of H.R. 2190 and submit the 
following comments to express our significant concerns with 
this legislation.
    We believe all Members want to protect public health and 
shield Americans from the risks posed by unhealthy exposures to 
mercury. Yet, while this is both the stated policy goal and the 
short title of H.R. 2190, we believe this legislation will not 
achieve that objective, nor does it represent good public 
policy. To the contrary, this bill has major manufacturing 
policy implications, ensuring severe economic and employment 
consequences for the U.S. companies and workers targeted by the 
bill. We believe, moreover, that given the current economy and 
employment conditions in the United States, Congress should not 
be passing misidentified environmental legislation that will 
effectively shut down U.S. manufacturers and displace U.S. 
workers.
    Mercury is a naturally-occurring element found in air, 
water and soil. Humans cannot create or destroy mercury. Pure 
mercury is a liquid metal that volatizes readily. Mercury in 
the air eventually settles into water or onto land where it can 
be washed into water. Once deposited, certain microorganisms 
can change it into methylmercury, a potent neurotoxin which 
builds up in fish, shellfish and animals that eat fish. Fish 
and shellfish are the main sources of methylmercury exposure to 
humans. Methylmercury builds up more in some types of fish and 
shellfish than others. According to the U.S. Geological Survey, 
``consumption of ocean fish and shellfish account for over 90 
percent of human methylmercury exposure in the United States, 
and tuna harvested in the Pacific Ocean account for 40 percent 
of this total exposure.''
    Notwithstanding the view expressed by some Committee 
leaders that mercury deposition is solely a local issue, 
mercury deposition in a given area depends on mercury emitted 
from local, regional, national, and international sources. The 
U.S. Environmental Protection Agency (EPA) has estimated, based 
on an advanced, state-of-the-science modeling assessment of 
atmospheric fate, transport, and deposition of mercury, that 83 
percent of the mercury deposited in the United States 
originates from international sources. The remaining 17 percent 
comes from U.S. and Canadian sources. Further, it is now 
estimated that China is the leading contributor to atmospheric 
mercury levels.
    While mercury exposure at high levels can harm the brain, 
heart, kidneys, lungs, and immune system of people of all 
ages--it has been demonstrated that high levels of 
methylmercury in the bloodstream of unborn babies and young 
children may harm the developing nervous system--according to 
EPA's website, research shows that most people's fish 
consumption does not cause a health concern. Further, where a 
potential health concern is indicated, there are governmental 
efforts in place to warn potentially vulnerable persons of 
threats from consuming more than the recommended amounts of 
seafood that may contain elevated amounts of mercury.
    Notwithstanding other available remedies the federal 
government has to mitigate the above mentioned risks, and 
before available regulatory remedies have been exhausted, H.R. 
2190 takes the position that an already heavily-regulated 
process for manufacturing chlorine should be banned by statute 
simply because: (1) there are only four plants affected; (2) 
there are other replacement manufacturing methods that do not 
use mercury; and (3) that this mercury cell process is too old 
of a technology and needs to be replaced. Whereas Congress in 
limited situations in the past has statutorily banned a 
chemical substance--like asbestos--we are not aware of any 
legislative precedent for banning an entire manufacturing 
process. We find this notion and precedent particularly 
troubling.
    As we understand the body of existing environmental law, 
this bill is not necessary to address any deficiencies in 
existing law. If there are health-threatening releases from one 
of these plants, the mercury releases that this bill is trying 
to address are already covered under the Clean Air Act and the 
Clean Water Act. Specifically, sections 112(r)(9) and 303 of 
the Clean Air Act and Section 1431 of the Safe Drinking Water 
Act give EPA the authority to take whatever action is necessary 
to prevent a real or potential threat of imminent and 
substantial endangerment to public health or welfare, or the 
environment that would be caused by a release of mercury. In 
addition, section 504(a) of the Clean Water Act has similar 
authorities and expands the scope to also include damage to 
shellfish. Finally, section 113(c)(5) of the Clean Air Act and 
Section 309(c)(3) of the Clean Water Act subject persons who 
``knowingly'' release pollutants and place another person in 
imminent danger of death or serious bodily injury to criminal 
penalties.
    From a regulatory perspective, the four plants targeted by 
the bill are regulated heavily by several federal environmental 
and worker safety laws that address the treatment, handling and 
storage of mercury and chlorine. These regulations flow from 
laws that include: the Clean Air Act, the Clean Water Act, the 
Occupational Health and Safety Act, Solid Waste Disposal Act, 
Emergency Planning and Community Right to Know Act, Safe 
Drinking Water Act, Hazardous Materials Transportation Act, and 
the Chemical Facility Anti-Terrorism Standards Act. Most 
importantly, the EPA has legal authority it could use under 
Clean Air Act Section 112, which authorizes regulation of 
hazardous air pollutants, to phase out this technology process. 
While EPA has declined to phase out this specific manufacturing 
practice in the past, the Agency is currently considering 
further limits on fugitive mercury emissions from these plants.
    In view of this, we consider the policy articulated in H.R. 
2190 to be a grim warning to small manufacturers or those whose 
businesses may be politically unfashionable. We are concerned 
that the choice in this legislation to single out four plants, 
and to require them to invest an average of $100 million to 
convert their manufacturing processes or otherwise close their 
facilities, may not be based on a desire to protect public 
health from the most dangerous sources of mercury--which are 
global, not local--but rather may be based on a political 
calculation that this group could be targeted because it is 
small.
    Noteworthy to us is the fact that chlorine manufacturers 
who use mercury cell technology are not the largest emitters of 
mercury into the air or water. Before making serious 
investments to improve their emissions, pursuant to a Federal 
mandate to make technology changes by 2006, 2005 EPA data 
showed these plants ranked 9th overall in the U.S.--16 times 
lower than the highest domestic emitter. Additionally, EPA's 
National Emissions Inventory shows an 89 percent decrease in 
mercury emissions from the U.S. chlor-alkali industry between 
1990 and 2005. This means these four plants contribute 
negligibly, if at all, to global atmospheric mercury levels.
    In addition, the 2002 United Nations Environmental 
Programme's Global Mercury Assessment states that although a 
large part of the mercury consumption and releases remain in 
less-developed nations, about three-fourths of the entire 
global chlorine production capacity is situated in Western 
Europe, North America and Northeast Asia, with a large part of 
the mercury at work in the world's chlor-alkali plants in 
Europe (currently 37 plants). Based on actual records of 
easily-recoverable mercury from decommissioned chlorine 
production facilities in the European Union (EU) and the United 
States, it can be estimated roughly that about half of the 
mercury inventories associated with chlor-alkali production in 
the world are situated within the EU. Curiously, in response to 
the increasing amount of mercury at chlor-alkali plants in 
Europe, the EU's response has been to voluntarily phase out the 
use of these plants by 2020, allowing a competitive advantage 
to exist versus other developed nations who choose to ban this 
practice. In view of the absence of more aggressive actions 
from other nations to significantly or similarly curb their 
mercury emissions, we believe no net global environmental gain 
will be achieved under H.R. 2190 and its suggested public 
health gains will go unrealized. Rather, we believe the 
elimination of up to 1,000 or more U.S. jobs is likely to be 
the most enduring result of H.R. 2190.
    Further, several other sources of emissions far outstrip 
these chlor-alkali plants, both now and in the future. EPA 
estimates that 50-70 percent of current global anthropogenic 
atmospheric emissions come from fuel combustion, and much of 
this is from China, India, and other Asian countries. Coal 
consumption in Asia, from less-regulated plants, is expected to 
grow significantly over the next 20 years. This source of 
mercury emissions may grow substantially if left unaddressed, a 
fact reaffirmed this past spring by the U.S. Geological Survey 
(USGS), resulting in a continued contribution to seafood 
consumption due to the aforementioned concentration of 
methylmercury exposure from seafood and shellfish harvested in 
the Pacific Ocean.
    With national unemployment at 10 percent, unemployment in 
the manufacturing sector at 11.9 percent, and the unemployment 
rate in the towns in which these plants are located at these 
levels or higher, we are not persuaded by the claims of H.R. 
2190 supporters that these companies will be able to save the 
jobs of the workers at these plants. To the contrary, 
executives from the affected plants have testified, as well as 
expressly stated in a letter sent to our Committee, that 
passage of H.R. 2190--either as introduced or as amended by the 
Committee--would result in the closure of these four plants and 
the unemployment of approximately 1,000 workers. These 
companies have previously, unambiguously stated that their 
future operations--and the employment of their workers--
depended on either a guarantee of Federal funds to make this 
transition or more time to find financing and address the 
business realities of conversion. H.R. 2190 provides neither 
the funding nor the time that the companies have indicated 
would be required to convert their facilities--assuming 
financing can be obtained and the conversions would be cost-
effective.
    Moreover, we believe Congress should be very cautious when 
making assumptions about the financial ability of companies to 
meet new, costly requirements at these plants. The cost-
effectiveness of implementing alternative production 
technologies must be measured on a site-specific basis--these 
plants are extremely capital intensive and costly to build, 
especially for a large site. Current estimates suggest an 
average conversion cost for one of these plants is $100 
million, depending on its size. In addition, the current, 
frozen status of the credit markets makes any serious effort to 
convert to a non-mercury technology difficult to assess since 
financing, especially in the short term, is elusive.
    As it relates to these types of plants, a September 15, 
2009, internal EPA memorandum for the Mercury Chlor-Alkali 
National Emissions Standards for Hazards Air Pollutants program 
contains a section entitled, ``Unquantifiable Cost Factors.'' 
The comments from this section highlight the challenges 
associated with the conversion of these facilities, stating:

          [F]rom a business perspective, there may be other 
        cost factors that could predominate or, at minimum, 
        contribute to the costs of conversion. The conversion 
        to nonmercury technology would be an extremely 
        disrupting activity in the life of a facility even 
        without the costs associated with the conversion.
          There are some costs and/or financial impediments to 
        conversion that are unquantifiable and may have 
        prevented facilities from converting their mercury cell 
        facilities to nonmercury technology up to this point. 
        Some of these issues are as follows: availability of 
        capital and savings; ability to secure financing, which 
        is dependent upon the current profitability and credit 
        worthiness of the company; dynamics of the supply and 
        demand of either of the two co-products (chlorine and 
        caustic) that can cause cyclical and sharp price swings 
        and/or a fall in sales revenue or increases in 
        operating costs; and ability to structure the financing 
        debt to accept these market cycles, which adds time and 
        cost to the overall financing and loan.

    Further, we note that in the last Congress our Committee 
specifically addressed concerns about potential human exposures 
to mercury and methylmercury by passing the Mercury Export Ban 
Act of 2008 (MEBA). In the context of considering that bill, 
our Committee was made well aware of the potential impacts of 
such legislation on global economic competition and of the 
mercury contributions of other countries to the global 
environment and atmospheric transport. We are concerned that 
this bill effectively renegotiates certain parts of MEBA just 
for these four plants, and takes an arbitrary approach to these 
particular facilities.
    We believe, finally, that there were certain factual errors 
in, and other issues presented by, early sections of H.R. 2190, 
but we do not address them here.
    We appreciate the steps the Majority has taken to eliminate 
some of the more troubling provisions of this bill--including 
duplicative reporting and inventory requirements. Yet we still 
find this bill unworkable, including the provision added at 
full committee markup that forces the affected companies to 
make their decisions about conversion or closure by June 30, 
2012, and, if they have decided to convert, to do so within 
three years. While this is a longer amount of time on the front 
end than H.R. 2190 as originally introduced provided, it is not 
enough to garner our support given the testimony and record 
before the Committee.
    Though we remain concerned about actions by Congress to ban 
a manufacturing process, especially in view of other options, 
we acknowledge that the companies impacted were willing to live 
with a legislative framework that gave them time to phase out 
existing technology and meaningfully convert. We believe an 
amendment we offered--giving the companies until 2015 to make a 
decision, 2016 to close, and 2018 to convert--provided both the 
certainty and the time that the affected companies sought. We 
are disappointed that the Majority rejected this amendment.
    Going forward we are concerned that this bill is not an 
isolated attempt to address just mercury in manufacturing, but 
rather a veiled attempt to decrease the production and use of 
chlorine in the United States. We note that the Majority, in 
the previous Congress and under the banner of public health 
protection, also made attempts to hem in production of chlorine 
by plants that used an asbestos diaphragm. We are not persuaded 
that these efforts are merely coincidence.
    We take seriously the need to protect the human health of 
all Americans, both in this and future generations. We do, 
however, reject H.R. 2190 and for all the reasons set forth 
above will continue to fight H.R. 2190, as reported, and urge 
the Congress to do the same.
                                   Joe Barton,
                                           Ranking Member.
                                   John Sullivan.
                                   Joseph R. Pitts.
                                   Tim Murphy.
                                   Marsha Blackburn.
                                   Michael C. Burgess.
                                   Ralph M. Hall.
                                   Ed Whitfield.
                                   Cliff Stearns.
                                   Roy Blunt.
                                   Sue Myrick.
                                   Phil Gingrey.
                                   Mary Bono Mack.
                                   Lee Terry.
                                   Steve Buyer.
                                   Geoge Radanovich.
                                   John Shimkus.

                                  
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