[United States Statutes at Large, Volume 122, 110th Congress, 2nd Session]
[From the U.S. Government Publishing Office, www.gpo.gov]

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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122 STAT. 4342

(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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122 STAT. 4343

``(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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122 STAT. 4344

``(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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122 STAT. 4345

(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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122 STAT. 4346

(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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122 STAT. 4347

(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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122 STAT. 4348

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:
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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.