[110th Congress Public Law 414]
[From the U.S. Government Printing Office]


[DOCID: f:publ414.110]

[[Page 122 STAT. 4341]]

Public Law 110-414
110th Congress

                                 An Act


 
 To prohibit the sale, distribution, transfer, and export of elemental 
  mercury, and for other purposes. <<NOTE: Oct. 14, 2008 -  [S. 906]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Mercury 
Export Ban Act of 2008.>> 
SECTION 1. <<NOTE: 15 USC 2601 note.>> SHORT TITLE.

    This Act may be cited as the ``Mercury Export Ban Act of 2008''.
SEC. 2. <<NOTE: 15 USC 2611 note.>> 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;

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            (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 <<NOTE: Effective 
        date.>> 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 <<NOTE: Effective 
        date.>> January 1, 2013, the export of elemental mercury from 
        the United States is prohibited.
            ``(2) Inapplicability of subsection (a).--Subsection (a) 
        shall not apply to this subsection.
            ``(3) Report to congress on mercury compounds.--

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                    ``(A) Report.--Not <<NOTE: Publication.>> later than 
                one year after the date of enactment of the Mercury 
                Export Ban Act of 2008, the Administrator shall publish 
                and submit to Congress a report on mercuric chloride, 
                mercurous chloride or calomel, mercuric oxide, and other 
                mercury compounds, if any, that may currently be used in 
                significant quantities in products or processes. Such 
                report shall include an analysis of--
                          ``(i) the sources and amounts of each of the 
                      mercury compounds imported into the United States 
                      or manufactured in the United States annually;
                          ``(ii) the purposes for which each of these 
                      compounds are used domestically, the amount of 
                      these compounds currently consumed annually for 
                      each purpose, and the estimated amounts to be 
                      consumed for each purpose in 2010 and beyond;
                          ``(iii) the sources and amounts of each 
                      mercury compound exported from the United States 
                      annually in each of the last three years;
                          ``(iv) the potential for these compounds to be 
                      processed into elemental mercury after export from 
                      the United States; and
                          ``(v) other relevant information that Congress 
                      should consider in determining whether to extend 
                      the export prohibition to include one or more of 
                      these mercury compounds.
                    ``(B) Procedure.--For the purpose of preparing the 
                report under this paragraph, the Administrator may 
                utilize the information gathering authorities of this 
                title, including sections 10 and 11.
            ``(4) Essential use exemption.--(A) Any person residing in 
        the United States may petition the Administrator for an 
        exemption from the prohibition in paragraph (1), and the 
        Administrator may grant by rule, after notice and opportunity 
        for comment, an exemption for a specified use at an identified 
        foreign facility if the Administrator finds that--
                    ``(i) nonmercury alternatives for the specified use 
                are not available in the country where the facility is 
                located;
                    ``(ii) there is no other source of elemental mercury 
                available from domestic supplies (not including new 
                mercury mines) in the country where the elemental 
                mercury will be used;
                    ``(iii) the country where the elemental mercury will 
                be used certifies its support for the exemption;
                    ``(iv) the export will be conducted in such a manner 
                as to ensure the elemental mercury will be used at the 
                identified facility as described in the petition, and 
                not otherwise diverted for other uses for any reason;
                    ``(v) the elemental mercury will be used in a manner 
                that will protect human health and the environment, 
                taking into account local, regional, and global human 
                health and environmental impacts;
                    ``(vi) the elemental mercury will be handled and 
                managed in a manner that will protect human health and 
                the environment, taking into account local, regional, 
                and global human health and environmental impacts; and

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                    ``(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. <<NOTE: Deadline. 42 USC 6939f.>> LONG-TERM STORAGE.

    (a) Designation of Facility.--
            (1) In general.--Not later than January 1, 2010, the 
        Secretary of Energy (referred to in this section as the 
        ``Secretary'') shall designate a facility or facilities of the 
        Department of Energy, which shall not include the Y-12 National 
        Security Complex or any other portion or facility of the Oak 
        Ridge Reservation of the Department of Energy, for the purpose 
        of long-term management and storage of elemental mercury 
        generated within the United States.
            (2) Operation of facility.--Not later than January 1, 2013, 
        the facility designated in paragraph (1) shall be operational 
        and shall accept custody, for the purpose of long-term 
        management and storage, of elemental mercury generated within 
        the United States and delivered to such facility.

    (b) Fees.--
            (1) In general.--After consultation with persons who are 
        likely to deliver elemental mercury to a designated facility for 
        long-term management and storage under the program prescribed in 
        subsection (a), and with other interested persons, the Secretary 
        shall assess and collect a fee at the time of delivery for 
        providing such management and storage, based on the pro rata 
        cost of long-term management and storage of elemental mercury 
        delivered to the facility. The amount of such fees--
                    (A) shall <<NOTE: Public information.>> be made 
                publically available not later than October 1, 2012;
                    (B) may be adjusted annually; and

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                    (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 <<NOTE: Procedures. Standards.>> later 
        than October 1, 2009, the Secretary, after consultation with the 
        Administrator of the Environmental Protection Agency and all 
        appropriate State agencies in affected States, shall make 
        available, including to potential users of the long-term 
        management and storage program established under subsection (a), 
        guidance that establishes procedures and standards for the 
        receipt, management, and long-term storage of elemental mercury 
        at a designated facility or facilities, including requirements 
        to ensure appropriate use of flasks or other suitable shipping 
        containers. Such procedures and standards shall be protective of 
        human health and the environment and shall ensure that the 
        elemental mercury is stored in a safe, secure, and effective 
        manner. In addition to such procedures and standards, elemental 
        mercury managed and stored under this section at a designated 
        facility shall be subject to the requirements of the Solid Waste 
        Disposal Act, including the requirements of subtitle C of that 
        Act, except as provided in subsection (g)(2) of this section. A 
        designated facility in existence on or before January 1, 2013, 
        is authorized to operate under interim status pursuant to 
        section 3005(e) of the Solid Waste Disposal Act until a final 
        decision on a permit application is made pursuant to section 
        3005(c) of the Solid Waste Disposal Act. <<NOTE: Deadline.>> Not 
        later than January 1, 2015, the Administrator of the 
        Environmental Protection Agency (or an authorized State) shall 
        issue a final decision on the permit application.
            (2) Training.--The Secretary shall conduct operational 
        training and emergency training for all staff that have 
        responsibilities related to elemental mercury management, 
        transfer, storage, monitoring, or response.

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            (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 <<NOTE: Records.>> indemnification may 
        be afforded under this subsection unless the person seeking 
        indemnification--
                    (A) notifies <<NOTE: Notification. Deadline.>> 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.

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    (f) Terms, Conditions, and Procedures.--The Secretary is authorized 
to establish such terms, conditions, and procedures as are necessary to 
carry out this section.
    (g) Effect on Other Law.--
            (1) In general.--Except as provided in paragraph (2), 
        nothing in this section changes or affects any Federal, State, 
        or local law or the obligation of any person to comply with such 
        law.
            (2) Exception.--(A) Elemental mercury that the Secretary is 
        storing on a long-term basis shall not be subject to the storage 
        prohibition of section 3004(j) of the Solid Waste Disposal Act 
        (42 U.S.C. 6924(j)). For the purposes of section 3004(j) of the 
        Solid Waste Disposal Act, a generator accumulating elemental 
        mercury destined for a facility designated by the Secretary 
        under subsection (a) for 90 days or less shall be deemed to be 
        accumulating the mercury to facilitate proper treatment, 
        recovery, or disposal.
            (B) Elemental <<NOTE: Certification.>> mercury may be stored 
        at a facility with respect to which any permit has been issued 
        under section 3005(c) of the Solid Waste Disposal Act (42 U.S.C. 
        6925(c)), and shall not be subject to the storage prohibition of 
        section 3004(j) of the Solid Waste Disposal Act (42 U.S.C. 
        6924(j)) if--
                    (i) the Secretary is unable to accept the mercury at 
                a facility designated by the Secretary under subsection 
                (a) for reasons beyond the control of the owner or 
                operator of the permitted facility;
                    (ii) the owner or operator of the permitted facility 
                certifies in writing to the Secretary that it will ship 
                the mercury to the designated facility when the 
                Secretary is able to accept the mercury; and
                    (iii) the owner or operator of the permitted 
                facility certifies in writing to the Secretary that it 
                will not sell, or otherwise place into commerce, the 
                mercury.
        This subparagraph shall not apply to mercury with respect to 
        which the owner or operator of the permitted facility fails to 
        comply with a certification provided under clause (ii) or (iii).

    (h) Study.--Not <<NOTE: Deadline.>> later than July 1, 2014, the 
Secretary shall transmit to the Congress the results of a study, 
conducted in consultation with the Administrator of the Environmental 
Protection Agency, that--
            (1) determines the impact of the long-term storage program 
        under this section on mercury recycling; and
            (2) includes proposals, if necessary, to mitigate any 
        negative impact identified under paragraph (1).
SEC. 6. REPORT TO CONGRESS.

    At least 3 years after the effective date of the prohibition on 
export of elemental mercury under section 12(c) of the Toxic Substances 
Control Act (15 U.S.C. 2611(c)), as added by section 4 of this Act, but 
not later than January 1, 2017, the Administrator of the Environmental 
Protection Agency shall transmit to the Committee on Energy and Commerce 
of the House of Representatives and the Committee on Environment and 
Public Works of the Senate a report on the global supply and trade of 
elemental mercury, including but not limited to the amount of elemental 
mercury

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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.

    Approved October 14, 2008.

LEGISLATIVE HISTORY--S. 906:
---------------------------------------------------------------------------

SENATE REPORTS: No. 110-477 (Comm. on Environment and Public Works).
CONGRESSIONAL RECORD, Vol. 154 (2008):
            Sept. 26, considered and passed Senate.
            Sept. 27, 29, considered and passed House.

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