< Back to S. 906 (110th Congress, 2007–2009)

Text of the Mercury Export Ban Act of 2008

This bill was enacted after being signed by the President on October 14, 2008. The text of the bill below is as of Sep 22, 2008 (Reported by Senate Committee).

This is not the latest text of this bill.

Source: GPO

II

Calendar No. 1038

110th CONGRESS

2d Session

S. 906

[Report No. 110–477]

IN THE SENATE OF THE UNITED STATES

March 15, 2007

(for himself, Ms. Murkowski, Mr. Biden, Mr. Salazar, Mrs. Boxer, and Mr. Levin) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

September 22 (legislative day, September 17), 2008

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To prohibit the sale, distribution, transfer, and export of elemental mercury, and for other purposes.

1.

Short title

This Act may be cited as the Mercury Market Minimization Act of 2007.

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 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 mercury and mercury compounds on the world market, at relatively low prices and in ready supply, encourages the continued use of mercury outside of the United States, often involving highly dispersive activities such as artisinal gold mining;

(9)

the intentional use of mercury is declining in the United States as a consequence of process changes to manufactured products (including batteries, paints, switches, and measuring devices), but those uses remain substantial in the developing world where releases from the products are extremely likely due to the limited pollution control and waste management infrastructures in those countries;

(10)

the member countries of the European Union collectively are the largest source of mercury exports globally;

(11)

the European Union is in the process of enacting legislation that will prohibit mercury exports by not later than 2011;

(12)

the United States is a net exporter of mercury and, according to the United States Geologic Survey, exported 506 metric tons of mercury more than the United States imported during the period of 2000 through 2004; and

(13)

banning exports of mercury from the United States will have a notable affect on the market availability of mercury and switching to affordable mercury alternatives in the developing world.

3.

Prohibition on sale, distribution, or transfer of mercury by Department of Defense or Department of Energy

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 mercury by Federal agencies

Except as provided in paragraph (2), effective beginning on the date of enactment of this subsection, no Federal agency shall convey, sell, or distribute to any other Federal agency, any State or local government agency, or any private individual or entity any elemental mercury under the control or jurisdiction of the Federal agency.

(2)

Exception

Paragraph (1) shall not apply to a transfer between Federal agencies of elemental mercury for the sole purpose of facilitating storage of mercury to carry out this Act.

.

4.

Prohibition on export of 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 mercury

(1)

Elemental mercury

Effective January 1, 2010, the export of elemental mercury from the United States is prohibited.

(2)

Report to Congress on mercury compounds

(A)

Report

(i)

In general

Not later than 1 year after the date of enactment of the Mercury Market Minimization Act of 2007, 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.

(ii)

Inclusions

The report shall include an analysis of—

(I)

the sources and amounts of each mercury compound produced annually in, or imported into, the United States;

(II)
(aa)

the purposes for which each of the compounds are used domestically;

(bb)

the quantity of the compounds currently consumed annually for each purpose; and

(cc)

the estimated quantity of the compounds to be consumed for each purpose during calendar year 2010 and thereafter;

(III)

the sources and quantities of each mercury compound exported from the United States during each of the preceding 3 calendar years;

(IV)

the potential for the compounds to be processed into elemental mercury after export from the United States; and

(V)

other information that Congress should consider in determining whether to extend the export prohibition to include 1 or more of those mercury compounds.

(B)

Procedure

(i)

In general

Except as provided in clause (ii), for the purpose of preparing the report under this paragraph, the Administrator may use the information gathering authorities of this title, including sections 10 and 11.

(ii)

Exception

Subsection (b)(2) of section 11 shall not apply to activities under this subparagraph.

(3)

Excess Mercury Storage Advisory Committee

(A)

Establishment

There is established an advisory committee, to be known as the Excess Mercury Storage Advisory Committee (referred to in this paragraph as the Committee).

(B)

Membership

(i)

In general

The Committee shall be composed of 9 members, of whom—

(I)

2 members shall be jointly appointed by the Speaker of the House of Representatives and the Majority Leader of the Senate—

(aa)

1 of whom shall be designated to serve as Chairperson of the Committee; and

(bb)

1 of whom shall be designated to serve as Vice-Chairperson of the Committee;

(II)

1 member shall be the Administrator;

(III)

1 member shall be the Secretary of Defense;

(IV)

1 member shall be a representative of State environmental agencies;

(V)

1 member shall be a representative of State attorneys general;

(VI)

1 member shall be a representative of the chlorine industry;

(VII)

1 member shall be a representative of the mercury waste treatment industry; and

(VIII)

1 member shall be a representative of a nonprofit environmental organization.

(ii)

Appointments

Not later than 45 days after the date of enactment of this subsection, the Administrator, in consultation with the appropriate congressional committees, shall appoint the members of the Committee described in subclauses (IV) through (VIII) of clause (i).

(C)

Initial meeting

Not later than 30 days after the date on which all members of the Committee have been appointed, the Committee shall hold the initial meeting of the Committee.

(D)

Meetings

The Committee shall meet at the call of the Chairperson.

(E)

Quorum

A majority of the members of the Committee shall constitute a quorum.

(F)

Report

Not later than 1 year after the date of enactment of this subsection, the Committee shall submit to Congress a report describing the findings and recommendations of the Committee, if any, relating to—

(i)

the environmental, health, and safety requirements necessary to prevent—

(I)

the release of elemental mercury into the environment; and

(II)

worker exposure from the storage of elemental mercury;

(ii)

the estimated annual cost of storing elemental mercury on a per-pound or per-ton basis;

(iii)

for the 40-year period beginning on the date of submission of the report, the optimal size, number, and other characteristics of Federal facilities required to store elemental mercury under current and anticipated jurisdictions of each Federal agency;

(iv)

the estimated quantity of—

(I)

elemental mercury that will result from the decommissioning of mercury cell chlor-alkali facilities in the United States; and

(II)

any other supplies that may require storage to carry out this Act;

(v)

for the 40-year period beginning on the date of submission of the report, the estimated quantity of elemental mercury generated from the recycling of unwanted products and other wastes that will require storage to comply with the export prohibitions under this Act;

(vi)

any legal, technical, economic, or other barrier that may prevent the private sector from storing elemental mercury produced by the private sector during the 40-year period beginning on the date of submission of the report, including a description of measures to address the barriers;

(vii)

the advantages and disadvantages of consolidating the storage of mercury produced by public and private sources under the management of the public or private sector;

(viii)

the optimal plan of the Committee for storing excess mercury produced by public and private sources; and

(ix)

additional research, if any, required to determine a long-term disposal option for the storage of excess mercury.

(G)

Compensation of members

(i)

In general

(I)

Non-federal employees

A member of the Committee who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of title 5, United States Code, for each day (including travel time) during which the member is engaged in the performance of the duties of the Committee.

(II)

Federal employees

A member of the Committee who is an officer or employee of the Federal Government shall serve without compensation in addition to the compensation received for the services of the member as an officer or employee of the Federal Government.

(ii)

Travel expenses

A member of the Committee shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the Committee.

(H)

Staff and funding

The Administrator shall provide to the Committee such funding and additional personnel as are necessary to enable the Committee to perform the duties of the Committee.

(I)

Termination

The Committee shall terminate 180 days after the date on which the Committee submits the report of the Committee under subparagraph (F).

(4)

Inapplicability of unreasonable risk requirement

Subsection (a) shall not apply to this subsection.

.

1.

Short title

This Act may be cited as the Mercury Export Ban Act of 2008.

2.

Findings

Congress finds that—

(1)

mercury is highly toxic to humans, ecosystems, and wildlife;

(2)

as many as 10 percent of women in the United States of childbearing age have mercury in the blood at a level that could put a baby at risk;

(3)

as many as 630,000 children born annually in the United States are at risk of neurological problems related to mercury;

(4)

the most significant source of mercury exposure to people in the United States is ingestion of mercury-contaminated fish;

(5)

the Environmental Protection Agency reports that, as of 2004—

(A)

44 States have fish advisories covering over 13,000,000 lake acres and over 750,000 river miles;

(B)

in 21 States the freshwater advisories are statewide; and

(C)

in 12 States the coastal advisories are statewide;

(6)

the long-term solution to mercury pollution is to minimize global mercury use and releases to eventually achieve reduced contamination levels in the environment, rather than reducing fish consumption since uncontaminated fish represents a critical and healthy source of nutrition worldwide;

(7)

mercury pollution is a transboundary pollutant, depositing locally, regionally, and globally, and affecting water bodies near industrial sources (including the Great Lakes) and remote areas (including the Arctic Circle);

(8)

the free trade of elemental mercury on the world market, at relatively low prices and in ready supply, encourages the continued use of elemental mercury outside of the United States, often involving highly dispersive activities such as artisinal gold mining;

(9)

the intentional use of mercury is declining in the United States as a consequence of process changes to manufactured products (including batteries, paints, switches, and measuring devices), but those uses remain substantial in the developing world where releases from the products are extremely likely due to the limited pollution control and waste management infrastructures in those countries;

(10)

the member countries of the European Union collectively are the largest source of elemental mercury exports globally;

(11)

the European Commission has proposed to the European Parliament and to the Council of the European Union a regulation to ban exports of elemental mercury from the European Union by 2011;

(12)

the United States is a net exporter of elemental mercury and, according to the United States Geological Survey, exported 506 metric tons of elemental mercury more than the United States imported during the period of 2000 through 2004; and

(13)

banning exports of elemental mercury from the United States will have a notable effect on the market availability of elemental mercury and switching to affordable mercury alternatives in the developing world.

3.

Prohibition on sale, distribution, or transfer of elemental mercury

Section 6 of the Toxic Substances Control Act (15 U.S.C. 2605) is amended by adding at the end the following:

(f)

Mercury

(1)

Prohibition on sale, distribution, or transfer of elemental mercury by Federal agencies

Except as provided in paragraph (2), effective beginning on the date of enactment of this subsection, no Federal agency shall convey, sell, or distribute to any other Federal agency, any State or local government agency, or any private individual or entity any elemental mercury under the control or jurisdiction of the Federal agency.

(2)

Exceptions

Paragraph (1) shall not apply to—

(A)

a transfer between Federal agencies of elemental mercury for the sole purpose of facilitating storage of mercury to carry out this Act; or

(B)

a conveyance, sale, distribution, or transfer of coal.

(3)

Leases of Federal coal

Nothing in this subsection prohibits the leasing of coal.

.

4.

Prohibition on export of elemental mercury

Section 12 of the Toxic Substances Control Act (15 U.S.C. 2611) is amended—

(1)

in subsection (a) by striking subsection (b) and inserting subsections (b) and (c); and

(2)

by adding at the end the following:

(c)

Prohibition on export of elemental mercury

(1)

Prohibition

Effective January 1, 2010, the export of elemental mercury from the United States is prohibited.

(2)

Inapplicability of subsection (a)

Subsection (a) shall not apply to this subsection.

(3)

Report to congress on mercury compounds

(A)

Report

Not later than one year after the date of enactment of the Mercury Export Ban Act of 2008, the Administrator shall publish and submit to Congress a report on mercuric chloride, mercurous chloride or calomel, mercuric oxide, and other mercury compounds, if any, that may currently be used in significant quantities in products or processes. Such report shall include an analysis of—

(i)

the sources and amounts of each of the mercury compounds imported into the United States or manufactured in the United States annually;

(ii)

the purposes for which each of these compounds are used domestically, the amount of these compounds currently consumed annually for each purpose, and the estimated amounts to be consumed for each purpose in 2010 and beyond;

(iii)

the sources and amounts of each mercury compound exported from the United States annually in each of the last three years;

(iv)

the potential for these compounds to be processed into elemental mercury after export from the United States; and

(v)

other relevant information that Congress should consider in determining whether to extend the export prohibition to include one or more of these mercury compounds.

(B)

Procedure

For the purpose of preparing the report under this paragraph, the Administrator may utilize the information gathering authorities of this title, including sections 10 and 11.

(4)

Essential use exemption

(A)

Any person residing in the United States may petition the Administrator for an exemption from the prohibition in paragraph (1), and the Administrator may grant by rule, after notice and opportunity for comment, an exemption for a specified use at an identified foreign facility if the Administrator finds that—

(i)

nonmercury alternatives for the specified use are not available in the country where the facility is located;

(ii)

there is no other source of elemental mercury available from domestic supplies (not including new mercury mines) in the country where the elemental mercury will be used;

(iii)

the country where the elemental mercury will be used certifies its support for the exemption;

(iv)

the export will be conducted in such a manner as to ensure the elemental mercury will be used at the identified facility as described in the petition, and not otherwise diverted for other uses for any reason;

(v)

the elemental mercury will be used in a manner that will protect human health and the environment, taking into account local, regional, and global human health and environmental impacts;

(vi)

the elemental mercury will be handled and managed in a manner that will protect human health and the environment, taking into account local, regional, and global human health and environmental impacts; and

(vii)

the export of elemental mercury for the specified use is consistent with international obligations of the United States intended to reduce global mercury supply, use, and pollution.

(B)

Each exemption issued by the Administrator pursuant to this paragraph shall contain such terms and conditions as are necessary to minimize the export of elemental mercury and ensure that the conditions for granting the exemption will be fully met, and shall contain such other terms and conditions as the Administrator may prescribe. No exemption granted pursuant to this paragraph shall exceed three years in duration and no such exemption shall exceed 10 metric tons of elemental mercury.

(C)

The Administrator may by order suspend or cancel an exemption under this paragraph in the case of a violation described in subparagraph (D).

(D)

A violation of this subsection or the terms and conditions of an exemption, or the submission of false information in connection therewith, shall be considered a prohibited act under section 15, and shall be subject to penalties under section 16, injunctive relief under section 17, and citizen suits under section 20.

(5)

Consistency with trade obligations

Nothing in this subsection affects, replaces, or amends prior law relating to the need for consistency with international trade obligations.

(6)

Export of coal

Nothing in this subsection shall be construed to prohibit the export of coal.

.

5.

Long-term storage

(a)

Establishment of program

Not later than January 1, 2010, the Secretary of Energy (in this section referred to as the Secretary) shall accept custody, for the purpose of long-term management and storage, of elemental mercury generated within the United States and delivered to a facility of the Department of Energy designated by the Secretary.

(b)

Fees

(1)

In general

After consultation with persons who are likely to deliver elemental mercury to a designated facility for long-term management and storage under the program prescribed in subsection (a), and with other interested persons, the Secretary shall assess and collect a fee at the time of delivery for providing such management and storage, based on the pro rata cost of long-term management and storage of elemental mercury delivered to the facility. The amount of such fees—

(A)

shall be made publically available not later than October 1, 2009;

(B)

may be adjusted annually; and

(C)

shall be set in an amount sufficient to cover the costs described in paragraph (2).

(2)

Costs

The costs referred to in paragraph (1)(C) are the costs to the Department of Energy of providing such management and storage, including facility operation and maintenance, security, monitoring, reporting, personnel, administration, inspections, training, fire suppression, closure, and other costs required for compliance with applicable law. Such costs shall not include costs associated with land acquisition or permitting of a designated facility under the Solid Waste Disposal Act or other applicable law. Building design and building construction costs shall only be included to the extent that the Secretary finds that the management and storage of elemental mercury accepted under the program under this section cannot be accomplished without construction of a new building or buildings.

(c)

Report

Not later than 60 days after the end of each Federal fiscal year, the Secretary shall transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on all of the costs incurred in the previous fiscal year associated with the long-term management and storage of elemental mercury. Such report shall set forth separately the costs associated with activities taken under this section.

(d)

Management standards for a facility

(1)

Guidance

Not later than October 1, 2009, the Secretary, after consultation with the Administrator of the Environmental Protection Agency and all appropriate State agencies in affected States, shall make available, including to potential users of the long-term management and storage program established under subsection (a), guidance that establishes procedures and standards for the receipt, management, and long-term storage of elemental mercury at a designated facility or facilities, including requirements to ensure appropriate use of flasks or other suitable shipping containers. Such procedures and standards shall be protective of human health and the environment and shall ensure that the elemental mercury is stored in a safe, secure, and effective manner. In addition to such procedures and standards, elemental mercury managed and stored under this section at a designated facility shall be subject to the requirements of the Solid Waste Disposal Act, including the requirements of subtitle C of that Act, except as provided in subsection (g)(2) of this section. A designated facility in existence on or before January 1, 2010, is authorized to operate under interim status pursuant to section 3005(e) of the Solid Waste Disposal Act until a final decision on a permit application is made pursuant to section 3005(c) of the Solid Waste Disposal Act. Not later than January 1, 2012, the Administrator of the Environmental Protection Agency (or an authorized State) shall issue a final decision on the permit application.

(2)

Training

The Secretary shall conduct operational training and emergency training for all staff that have responsibilities related to elemental mercury management, transfer, storage, monitoring, or response.

(3)

Equipment

The Secretary shall ensure that each designated facility has all equipment necessary for routine operations, emergencies, monitoring, checking inventory, loading, and storing elemental mercury at the facility.

(4)

Fire detection and suppression systems

The Secretary shall—

(A)

ensure the installation of fire detection systems at each designated facility, including smoke detectors and heat detectors; and

(B)

ensure the installation of a permanent fire suppression system, unless the Secretary determines that a permanent fire suppression system is not necessary to protect human health and the environment.

(e)

Indemnification of persons delivering elemental mercury

(1)

In general

(A)

Except as provided in subparagraph (B) and subject to paragraph (2), the Secretary shall hold harmless, defend, and indemnify in full any person who delivers elemental mercury to a designated facility under the program established under subsection (a) from and against any suit, claim, demand or action, liability, judgment, cost, or other fee arising out of any claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss) that results from, or is in any manner predicated upon, the release or threatened release of elemental mercury as a result of acts or omissions occurring after such mercury is delivered to a designated facility described in subsection (a).

(B)

To the extent that a person described in subparagraph (A) contributed to any such release or threatened release, subparagraph (A) shall not apply.

(2)

Conditions

No indemnification may be afforded under this subsection unless the person seeking indemnification—

(A)

notifies the Secretary in writing within 30 days after receiving written notice of the claim for which indemnification is sought;

(B)

furnishes to the Secretary copies of pertinent papers the person receives;

(C)

furnishes evidence or proof of any claim, loss, or damage covered by this subsection; and

(D)

provides, upon request by the Secretary, access to the records and personnel of the person for purposes of defending or settling the claim or action.

(3)

Authority of secretary

(A)

In any case in which the Secretary determines that the Department of Energy may be required to make indemnification payments to a person under this subsection for any suit, claim, demand or action, liability, judgment, cost, or other fee arising out of any claim for personal injury or property damage referred to in paragraph (1)(A), the Secretary may settle or defend, on behalf of that person, the claim for personal injury or property damage.

(B)

In any case described in subparagraph (A), if the person to whom the Department of Energy may be required to make indemnification payments does not allow the Secretary to settle or defend the claim, the person may not be afforded indemnification with respect to that claim under this subsection.

(f)

Terms, conditions, and procedures

The Secretary is authorized to establish such terms, conditions, and procedures as are necessary to carry out this section.

(g)

Effect on other law

(1)

In general

Except as provided in paragraph (2), nothing in this section changes or affects any Federal, State, or local law or the obligation of any person to comply with such law.

(2)

Exception

(A)

Elemental mercury that the Secretary is storing on a long-term basis shall not be subject to the storage prohibition of section 3004(j) of the Solid Waste Disposal Act (42 U.S.C. 6924(j)). For the purposes of section 3004(j) of the Solid Waste Disposal Act, a generator accumulating elemental mercury destined for a facility designated by the Secretary under subsection (a) for 90 days or less shall be deemed to be accumulating the mercury to facilitate proper treatment, recovery, or disposal.

(B)

Elemental mercury that is stored at a facility with respect to which a permit has been issued under section 3005(c) of the Solid Waste Disposal Act (42 U.S.C. 6925(c)) shall not be subject to the storage prohibition of section 3004(j) of the Solid Waste Disposal Act (42 U.S.C. 6924(j)) if—

(i)

the Secretary is unable to accept the mercury at a facility designated by the Secretary under subsection (a) for reasons beyond the control of the owner or operator of the permitted facility;

(ii)

the owner or operator of the permitted facility certifies in writing to the Secretary that it will ship the mercury to the designated facility when the Secretary is able to accept the mercury; and

(iii)

the owner or operator of the permitted facility certifies in writing to the Secretary that it will not sell, or otherwise place into commerce, the mercury.

This subparagraph shall not apply to mercury with respect to which the owner or operator of the permitted facility fails to comply with a certification provided under clause (ii) or (iii).
(h)

Study

Not later than July 1, 2011, the Secretary shall transmit to the Congress the results of a study, conducted in consultation with the Administrator of the Environmental Protection Agency, that—

(1)

determines the impact of the long-term storage program under this section on mercury recycling; and

(2)

includes proposals, if necessary, to mitigate any negative impact identified under paragraph (1).

6.

Report to Congress

At least 3 years after the effective date of the prohibition on export of elemental mercury under section 12(c) of the Toxic Substances Control Act (15 U.S.C. 2611(c)), as added by section 4 of this Act, but not later than January 1, 2014, the Administrator of the Environmental Protection Agency shall transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a report on the global supply and trade of elemental mercury, including but not limited to the amount of elemental mercury traded globally that originates from primary mining, where such primary mining is conducted, and whether additional primary mining has occurred as a consequence of this Act.

September 22 (legislative day, September 17), 2008

Reported with an amendment