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[Senate Report 110-477]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 1038
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-477

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

 
                MERCURY MARKET MINIMIZATION ACT OF 2007

                                _______
                                

  September 22 (legislative day, September 17), 2008.--Ordered to be 
                                printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 906]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 906) to prohibit the sale, distribution, 
transfer, and export of elemental mercury and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends the bill as amended do pass.

                 Purpose and Summary of the Legislation

    The purpose of S. 906, the Mercury Export Ban Act of 2007 
is to prohibit the sale, distribution, and transfer of 
elemental mercury held by Federal agencies as of the date of 
enactment of this act. S. 906 would still allow for such 
transfers between Federal agencies for the purpose of storage. 
By 2010, S. 906 would also ban the export of elemental mercury 
and provide a long-term management and storage option for 
elemental mercury generated by private entities. The bill also 
allows the Administrator of the Environmental Protection Agency 
(EPA) to grant an exemption from the export prohibition by 
rule, after notice and opportunity for comment, if the 
Administrator finds that certain conditions have been met.
    The bill directs the EPA to submit a report to Congress one 
year after the date of enactment that describes the sources and 
amounts of mercury compounds used, processed, and imported into 
and exported from the United States. The report must also 
describe the potential for exported mercury compounds to be 
processed into elemental mercury. The legislation also directs 
EPA to submit a report to Congress three years after the 
effective date of the prohibition that describes the quantity 
of elemental mercury traded globally from primary mining, 
locations where that mining is conducted, and whether the 
mining has occurred as a consequence of the Act.
    S. 906 directs the Secretary of Energy (Secretary) to 
accept custody, for the purpose of long-term management and 
storage, of elemental mercury generated in the U.S. and 
delivered to a Department of Energy facility designated by the 
Secretary, and to be funded by fees established under the 
legislation. The Secretary is to annually report on the costs 
incurred in the previous fiscal year related to the management 
and storage of elemental mercury. The Secretary must report by 
July 1, 2011, on the effect of the long-term storage program on 
mercury recycling, and provide proposals to mitigate negative 
impacts of the long-term storage program.

                Background and Need for the Legislation

    Mercury exists in three basic forms. Elemental mercury is a 
very dense, shiny, silver-colored metal. Elemental mercury is 
the pure form of mercury (i.e., it is not combined with any 
other elements). A second form of mercury is inorganic mercury 
compounds. This form is created when elemental mercury is 
combined with other elements such as oxygen, chlorine, or 
sulfur. Inorganic mercury compounds are used in fungicides, 
disinfectant agents, and antiseptics. The third basic form is 
organic mercury compounds. These compounds are combinations of 
mercury and carbon. The most common organic mercury compound is 
methylmercury.
    Mercury is a neurotoxin that is harmful to human health, 
including especially pregnant women, newborns, and children. 
Mercury exposure can harm human development and the nervous 
system. Infants and children are especially sensitive to 
mercury's impacts--even at low doses that do not harm adults. 
Prenatal exposures to low mercury concentrations can cause 
children to perform poorly in tests of attention, fine motor 
skills, language, and verbal memory. The EPA states: ``There is 
some evidence that exposure to methylmercury also can affect 
the cardiovascular, immune, and reproductive system.''
    EPA has determined that children born to women with blood 
mercury concentrations above 5.8 parts per billion (ppb) are at 
some increased risk of adverse health effects. The EPA 
estimated that 8 percent of women of child-bearing age had at 
least 5.8 ppb (1999-2000). In 2006, there were 152 million 
women of child-bearing age--equaling 62 million women at risk. 
In 2005, researchers cited a study that found cord-blood 
mercury levels may be on average 70 percent higher than in 
maternal blood, and estimate that up to 637,233 infants each 
year are exposed to dangerous levels of mercury, though some in 
industry dispute this figure.\1\
---------------------------------------------------------------------------
    \1\L. Trasande, P. Landrigan, and C. Schechter, ``Public Health and 
Economic Consequences of Methyl Mercury Toxicity to the Developing 
Brain,'' Environmental Health Perspectives, p. 590, v. 113, no. 5, (May 
2005).
---------------------------------------------------------------------------
    There are various sources of exposure to mercury, including 
through eating food and breathing air that contains mercury, 
and by ingesting dirt and other substances contaminated with 
mercury. Bioaccumulation causes mercury to become concentrated 
in predators, which can cause mercury concentrations thousands 
or millions of times greater than are found in the water. 
Eating mercury-tainted fish can be a substantial source of 
human exposure.
    According to the EPA: ``Most of the large industrial 
sources of mercury emissions are sites where mercury is emitted 
as a byproduct of combustion processes. Other major sources of 
mercury include industrial processes and product that use 
mercury deliberately, such as certain chlor-alkali chlorine 
manufacturing processes, batteries, lamps, and measuring 
devices such as thermometers. Mercury is also released through 
mining practices, sewage discharge, and metal refining 
operations. In the U.S., there are more than 100 manufacturing 
processes that use some form of mercury.''
    In 2006, the US Geological Survey (USGS) found that the US 
imported 94 metric tons (mt) of mercury and exported 390 mt. 
The US imported 118 mt of calomel, which can contain up to 80 
percent mercury. Mercury is also reclaimed from several 
sources, including automobile switches, dental amalgam, lights, 
lab and medical devices, and thermostats. Calomel is also 
collected from pollution control devices at gold smelters.
    According to the USGS, domestic mercury consumption is 
estimated to be 50 percent for chlorine manufacturing and 50 
percent in other uses. The chlorine industry purchases about 
100 tons of replacement mercury each year. EPA reports that 
there are currently 10 domestic facilities that use mercury to 
create chlorine, and that one of those has temporarily 
suspended its mercury cell operations.\2\
---------------------------------------------------------------------------
    \2\EPA, ``Cleanup of Mercury-Contaminated Chlor-Alkali Sites,'' 
available online at http://www.epa.gov/epaoswer/hazwaste/mercury/
cleanup.htm.
---------------------------------------------------------------------------
    Under the federal Toxic Release Inventory, industry reports 
releasing or otherwise managing more than 5 million pounds of 
mercury in 2006. According to EPA, large electric utilities 
release roughly 50 tons of mercury a year. In 1997, EPA 
estimated that chlor-alkali plants were the fifth largest 
source of mercury emissions. However, reported mercury 
emissions may not account for substantial fugitive emissions 
(through holes, cracks in pipes and joints, for example). In 
2003, EPA stated: ``The issue of unaccounted for mercury has 
been the subject of intense scrutiny from other groups within 
EPA and the industry . . . [but] the fate of all the mercury 
consumed at mercury cell chlor-alkali plants remains somewhat 
of an enigma.''
    Domestic supplies of elemental mercury are sold to metals 
recyclers and brokers who sell the mercury to buyers 
internationally. Large amounts of the surplus elemental mercury 
from the United States and other industrialized nations ends up 
in developing countries through this process. This mercury can 
be sold to artisanal and small-scale gold miners located 
primarily in Africa, Asia, and South America. These miners and 
their family members are usually unaware of the dangers of 
mercury exposure, and are unprepared to safely handle mercury.
    According to the United Nations Environment Program (UNEP), 
artisanal and small-scale gold mining involves an estimated 10 
to 15 million people, including 4.5 million women and 1 million 
children. This use of mercury creates extensive occupational 
health hazards, polluted sites, and contaminated ecosystems. 
UNEP estimates that artisanal and small-scale mining operations 
volatize as much as 300 metric tons of mercury into the 
atmosphere, and discharge as much as 700 metric tons of mercury 
from mining tailings into soil, rivers, and lakes.
    While mercury emissions create localized ``hot spots,'' 
they can also be transported over long distances and can remain 
in the atmosphere for long periods of time. Once deposited, 
mercury can contaminate water bodies and land, and enters the 
food chain.
    The most common route of mercury exposure in the United 
States is through consumption of mercury-contaminated fish. 
EPA's 2007 National Listing of Fish Advisories demonstrates 
that 48 States, one Territory, and two Tribes have issued 
mercury fish advisories, covering 14,177,175 lake acres and 
882,963 river miles.
    Other governments have also acted to stem the flow of 
mercury. The European Union's legislative body, the European 
Parliament, voted in June of 2007 to prohibit the export of 
elemental mercury and mercury compounds by 2010. The European 
Parliament also adopted a safe storage requirement for holders 
of excess elemental mercury. The Environmental Ministers for 
the member nations of the European Union have proposed that the 
mercury export prohibition take effect in 2011.

                Summary of Major Provisions of the Bill

    The bill prohibits the sale, distribution, and transfer of 
elemental mercury held by Federal agencies as of the date of 
enactment. S. 906 would still allow for such transfers between 
Federal agencies for the purpose of storage. By 2010, S. 906 
would also ban the export of elemental mercury and provide a 
long-term management and storage option for elemental mercury 
generated by private entities. The bill also allows the 
Administrator of the Environmental Protection Agency (EPA) to 
grant an exemption from the export prohibition by rule, after 
notice and opportunity for comment, if the Administrator finds 
that certain conditions have been met.
    S. 906, the Mercury Export Ban Act of 2007, also directs 
the EPA to submit a report to Congress one year after the date 
of enactment that describes the sources and amounts of mercury 
compounds used, processed, and imported into and exported from 
the United States. The report must also describe the potential 
for exported mercury compounds to be processed into elemental 
mercury. The Act also requires EPA to report by 2013 on the 
global supply and trade of elemental mercury, including the 
amount that originates from primary mining and whether 
additional primary mining has occurred as a consequence of this 
Act.
    S. 906 directs the Secretary to accept custody, for the 
purpose of long-term management and storage, of elemental 
mercury generated in the U.S. and delivered to a facility 
Department of Energy facility designated by the Secretary, and 
to be funded by fees established under the legislation. S. 906 
also directs the Secretary to annually report on the costs 
incurred in the previous fiscal year related to the management 
and storage of elemental mercury. The Secretary must report by 
July 1, 2011, on the effect of the long-term storage program on 
mercury recycling, and provide proposals to mitigate negative 
impacts of the long-term storage program.

                      Section-by-Section Analysis

Section 1. Short title

    Section 1 establishes the short title of the Act as the 
``Mercury Export Ban Act of 2007''.

Section 2. Findings

    This section contains findings related to mercury 
pollution, health effects attributed to mercury, and global use 
of elemental mercury.

Section 3. Prohibition on sale, distribution, or transfer of elemental 
        mercury

    This section provides that effective beginning from the 
date of enactment of this legislation, 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. An exception is made for a transfer 
between Federal agencies of elemental mercury for the sole 
purpose of facilitating storage of mercury to carry out the 
Act.

Section 4. Prohibition on export of elemental mercury

    Section 4 establishes a new subsection (c) in Section 12 of 
the Toxic Substances Control Act. This new subsection would 
prohibit the export of elemental mercury from the United States 
beginning January 1, 2010. The export ban does not affect the 
sale, recovery, or other use of mercury in the United States. 
Further, the Committee does not intend that this prohibition 
prevent exportation of coal or fly ash, a by-product of coal 
combustion, or manufactured consumer products containing 
elemental mercury.
    New subsection (c)(3) requires the EPA to submit a report 
to Congress one year after enactment addressing:
          (i) the sources and amounts of mercury compounds that 
        may be used in significant quantities in products and 
        processes produced annually in the United States or 
        imported into the United States;
          (ii) the purposes for which each of these compounds 
        are used domestically and the amount of these compounds 
        consumed annually;
          (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 information that Congress should consider 
        in determining whether to extend export prohibition to 
        include one or more of these mercury compounds.
    The Administrator may utilize the information gathering 
authorities of the Toxic Substances Control Act for the purpose 
of preparing the report.
    New subsection (c)(4) allows any person residing in the 
United States to petition the Administrator for an exemption 
from the prohibition on export of elemental mercury. The 
Administrator may grant by rule, after notice and opportunity 
for comment, an exemption for a specified use at an identified 
foreign facility if each of the following findings is 
satisfied:
          (i) non-mercury 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 and not otherwise diverted for 
        other uses for any reason;
          (v) the elemental mercury will be used, 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 effects; and
          (vi) 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.
    The Administrator must also include in the exemption 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. No single exemption can exceed 
3 years in duration and 10 metric tons of elemental mercury.
    The Administrator may by order suspend or cancel an 
exemption in the case of a violation of the subsection, a 
violation of the terms and conditions of an exemption, or the 
submission of false information. Violations of the statutory 
requirements or the terms and conditions of an exemption, or 
the submission of false information in connection therewith are 
a prohibited act under Section 15 of the Toxic Substances 
Control Act. Such violations shall be subject to penalties, 
injunctive relief, and citizen suits as provided in the Toxic 
Substances Control Act.
    In new subsection (c)(5) existing provision of law refers 
to any law in existence before the enactment of this Act. It is 
the intent of the Committee to not affect, replace, or amend 
existing law relating to the need for consistency with 
international trade obligations.
    New subsection (c)(6) provides that nothing in the 
subsection shall be construed to prohibit the export of coal.

Section 5. Long-term storage

    Section 5(a) requires the Secretary of Energy not later 
than January 1, 2010, to 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. The 
Committee purposely did not designate any particular facility 
of the Department of Energy but left that choice in the 
discretion of the Secretary.
    Subsection (b)(1) requires the Secretary, after appropriate 
consultation with interested parties, to assess and collect a 
fee at the time of delivery to cover the pro rata cost of long-
term management and storage of elemental mercury delivered to 
the facility.
    Subsection (b)(2) provides that the amount of the fees is 
to be made publicly available not later than October 1, 2009, 
and may be adjusted annually. The costs covered by the fee are 
the costs to the Department of Energy of providing management 
and storage for the elemental mercury delivered to the 
facility, including enumerated costs such as 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, 42 U.S.C. Sec. 6901 et seq. 
(1976), 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 created by this 
section, cannot be accomplished without construction of a new 
building or buildings.
    Subsection (c) requires the Secretary to report annually to 
the appropriate Committees of jurisdiction on all of the costs 
incurred in the previous fiscal year associated with the long-
term management and storage of elemental mercury, including a 
separate accounting of the costs associated with activities 
taken under this section.
    Subsection (d) requires the Secretary not later than 
October 1, 2009, after consultation with EPA and all 
appropriate State agencies in affected States, to make guidance 
available to potential users of the program setting forth 
procedures and standards for the receipt, management, and long-
term storage of elemental mercury at a designated facility or 
facilities. The procedures must be protective of human health 
and the environment and shall ensure that the elemental mercury 
is stored in a safe, secure, and effective manner. 
Additionally, the elemental mercury managed and stored at a 
designated facility shall be subject to the requirements of the 
Solid Waste Disposal Act. The only exception is set forth in 
subsection (g)(2) which provides that the elemental mercury 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.
    Subsection (d)(1) further provides that 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. The Administrator of EPA (or an 
authorized State) is required to issue a final decision on the 
permit application not later than January 1, 2012.
    Subsections (d)(2), (3), and (4), provide for the conduct 
of operational and emergency training, assurance that the 
designated facility will have necessary equipment, and the 
installation of fire detection systems and fire suppression 
systems, respectively.
    Subsection (e) provides indemnification for persons 
delivering elemental mercury for a claim that results from, or 
is in a 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). This indemnification 
provision is modeled on Section 330 of the National Defense 
Authorization Act of Fiscal Year 1993, Pub. L. No. 102-484, 106 
Stat. 2315, 2371-73 (1992) (codified as amended at 10 U.S.C. 
Sec. 2687 note (2000)). Indemnification is not applicable to a 
person who has contributed to any such release or threatened 
release.
    Subsection (e)(2) provides that no indemnification may be 
afforded unless the person seeking indemnification follows 
certain procedures and provides certain information concerning 
the claim, loss, or damage, and provides the Secretary access 
to records and personnel. Subsection (e)(3) gives the Secretary 
the authority to settle or defend the claim for personal injury 
or property damage 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.
    Subsection (f) authorizes the Secretary to establish such 
terms, conditions, and procedures as are necessary to carry out 
this section.
    Subsection (g)(1) provides that except as provided in 
paragraph (2), nothing in the section changes or affects any 
Federal, State, or local law or the obligation of any person to 
comply with such law. Paragraph (2) allows a generator 
accumulating elemental mercury destined for a facility 
designated by the Secretary to store mercury for a period of 90 
days or less. Further, paragraph (2) provides authority to 
store elemental mercury at a facility that has been issued a 
permit under section 3005(c) of the Solid Waste Disposal Act, 
notwithstanding section 3004(j) of that Act, if the Secretary 
is unable to accept mercury at a facility designated by the 
Secretary for reasons beyond the control of the owner or 
operator of the permitted facility. The owner or operator of 
the permitted facility must also make certain certifications 
set forth in subsection (g)(2)(B)(ii) and (iii) and comply with 
them to benefit from this provision.
    Subsection (h) requires the Secretary, in consultation with 
the Administrator of EPA, to report to Congress by July 1, 
2011, on the effect of the long-term storage program on mercury 
recycling and include proposals, if necessary, to mitigate any 
negative effect.

Section 6. Report to Congress

    This section requires the EPA Administrator to report by 
January 1, 2014, on the global supply and trade of elemental 
mercury and whether additional primary mining has occurred as a 
consequence of this Act.

             Legislative History, Committee Views and Votes

                            COMMITTEE VIEWS

    The committee believes that the nation must do more to 
protect human health and the environment from mercury 
emissions. S. 906 is an important step in reducing the use of 
mercury that contributed to increased risk in the United States 
from exposure to mercury. The bill also will help to protect 
women, children, and others in other countries that end up 
being exposed to mercury exported from the United States.
    By reducing the potential for mercury to be released back 
into the environment and elsewhere, the Committee believes that 
the legislation will help states address mercury contamination 
problems. Twenty-three States have issued statewide advisories 
for all freshwater lakes and/or rivers, and 12 States have 
statewide advisories for mercury in coastal waters. The 23 
States with statewide freshwater advisories are: Connecticut, 
Florida, Illinois, Indiana, Kentucky, Maine, Maryland, 
Massachusetts, Michigan, Minnesota, Missouri, Montana, New 
Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, 
Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and 
West Virginia. The 12 States with coastal water advisories are: 
Alabama, Florida, Georgia, Louisiana, Maine, Massachusetts, 
Mississippi, New Hampshire, North Carolina, Rhode Island, South 
Carolina, and Texas. Hawaii also has a statewide advisory for 
mercury in marine fish.
    The Federal Government can and should do more to help 
States address these serious threats to public health. S. 906 
will help accomplish this by reducing the flow of mercury in 
commerce, which will reduce opportunities for people and 
wildlife to be exposed to mercury.
    The Federal Government has already proven that it can store 
mercury for long periods of time. Federal surplus mercury is 
currently stored in a number of different locations. The 
Department of Defense, which holds more than 4,000 metric tons, 
manages its own stockpiles. The Department of Energy, which 
holds more than 1,300 metric tons, also manages its stockpiles.
    S. 906 also builds on past Federal agency decisions to stop 
selling mercury. The Department of Defense stopped selling 
surplus mercury in 1994 because of environmental and public 
health concerns. Since December 2006 the Department of Energy 
has said that it would continue to store its mercury rather 
than sell it. Consistent with these departmental policies, the 
Mercury Export Ban Act of 2008 would ensure that the Federal 
Government's elemental mercury remains in storage by 
prohibiting the sale, distribution, and transfer of elemental 
mercury held by Federal agencies, as of the date of enactment. 
Transfer of elemental mercury between Federal agencies would 
continue to be allowed for the sole purpose of facilitating 
storage of elemental mercury to carry out this Act.
    S. 906 will also help to address potentially large 
infusions of mercury into the world marketplace. According to 
the United States Geological Survey, approximately 3,000 tons 
of mercury that could become available for recycling is 
contained in the remaining nine U.S. mercury-cell chlorine-
caustic soda plants. These plants use mercury to mercury-cell 
technology to produce chlorine, caustic soda, and other 
chemicals. However, there are a number of widely-used 
alternatives to mercury-cell technology, and the chlorine 
industry continues to shift to using these technologies. S. 906 
will provide an important storage site that private industry 
can use to reduce the use of this dangerous metal.
    Other non-governmental sources of elemental mercury include 
the mining industry, mercury recycling and recovery operations. 
There are no mercury mines in the United States. Elemental 
mercury is, however, generated as a by-product of gold mining. 
EPA estimates that approximately 118 metric tons of elemental 
mercury was generated as a by-product of gold mining in 2006.
    Further, S. 906 specifically provides that the 
legislation's prohibition on the conveyance, sale, 
distribution, or transfer of elemental mercury does not 
prohibit the leasing of coal, and does not prevent exportation 
of coal or fly ash, a by-product of coal combustion, or 
manufactured consumer products containing elemental mercury.
    Elemental mercury is also generated through recycling 
products and waste recovery programs. Such material includes 
certain thermometers, fluorescent light bulbs, auto switches, 
electronics, and other products. EPA estimates that product 
recycling and waste recovery produced between 50 and 200 metric 
tons in 2006. S. 906 can help build capacity to store mercury 
from all such industries.

                           HISTORY AND VOTES

    On March 15, 2007, Senators Obama and Murkowski introduced 
S. 906. Senators Boxer, Biden, and Salazar later cosponsored 
the measure. The bill was referred to the Committee on 
Environment and Public Works.
    On July 31, 2008, the Committee on Environment and Public 
Works held a business meeting and considered Chairman Boxer's 
amendment in the nature of a substitute to S. 906. Senator 
Alexander offered an amendment to prohibit the storage of 
mercury at a certain facility in Tennessee, which failed by 
voice vote. Senator Barrasso offered two amendments, one that 
(as amended by a second degree amendment that was unanimously 
accepted) clarified that the prohibition on conveyance, sale, 
distribution, or transfer of elemental mercury by federal 
agencies excludes coal. The other clarified that the 
prohibition on conveyance, sale, distribution, or transfer of 
elemental mercury does not prohibit the leasing of coal. The 
Committee adopted both amendments by unanimous consent. The 
Committee favorably adopted the Boxer Substitute amendment, as 
amended by the two Barrasso amendments, by voice vote.
    On May 13, 2008, the Committee held a legislative hearing 
titled, ``Hearing on Mercury Legislation,'' which S. 906. On 
May 16, 2007, the Subcommittee on Clean Air and Nuclear Safety 
held an oversight hearing titled, ``State of Mercury Regulation 
and Science.''

           REGULATORY IMPACT STATEMENT & COST OF LEGISLATION

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee notes that the 
Congressional Budget Office has found that S. 906 ``would 
prohibit the export of elemental mercury from the United States 
beginning in 2010. Based on information from the U.S. 
Geological Survey, CBO estimates that the cost of that mandate 
would fall below the annual threshold established in UMRA ($136 
million in 2008, adjusted annually for inflation).''

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee notes that the Congressional 
Budget Office has said that ``S. 906 contains no 
intergovernmental mandates as defined in the Unfunded Mandates 
Reform Act (UMRA) and would not affect the budgets of state, 
local, or tribal governments. S. 906 would impose a private-
sector mandate as defined in UMRA. It would prohibit the export 
of elemental mercury from the United States beginning in 2010. 
Based on information from the U.S. Geological Survey, CBO 
estimates that the cost of that mandate would fall below the 
annual threshold established in UMRA ($136 million in 2008, 
adjusted annually for inflation).''

                  Congressional Budget Office Estimate

S. 906--Mercury Export Ban Act of 2008

    Summary: S. 906 would ban the export of elemental mercury, 
prohibit federal agencies from selling or distributing mercury, 
and direct the Department of Energy (DOE) to provide permanent 
storage for domestic stocks of mercury under certain 
conditions. Under this bill, firms would be allowed to begin 
delivering mercury to DOE on January 1, 2010, and would be 
required to pay a one-time fee sufficient to cover most of the 
department's long-term costs of storing it. DOE would indemnify 
those entities from legal actions resulting from any actual or 
threatened release of mercury occurring after the materials are 
delivered to the federal facility. In addition, DOE's mercury 
storage operations would have to comply with various 
performance standards, including the Solid Waste Disposal Act. 
Finally, the bill would direct DOE and the Environmental 
Protection Agency (EPA) to prepare reports on issues related to 
the storage of domestic mercury and the disposition of global 
supplies.
    Implementing this bill would affect both discretionary 
spending and direct spending. Assuming appropriation of the 
necessary amounts, CBO estimates that DOE would spend $8 
million over the 2009-2013 period and additional amounts 
thereafter to provide for the permanent storage of commercially 
generated mercury. CBO also estimates that enacting this bill 
would reduce net direct spending by $8 million over the 2009-
2018 period by increasing offsetting receipts (an offset to 
direct spending) from the one-time fee that would be paid by 
firms transferring mercury to DOE. Enacting this legislation 
would not affect revenues.
    S. 906 contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) and would not affect 
the budgets of state, local, or tribal governments.
    S. 906 would impose a private-sector mandate as defined in 
UMRA. It would prohibit the export of elemental mercury from 
the United States beginning in 2010. Based on information from 
the U.S. Geological Survey, CBO estimates that the cost of that 
mandate would fall below the annual threshold established in 
UMRA ($136 million in 2008, adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 906 is shown in the following table. The 
costs of this legislation fall within budget functions 270 
(energy) and 300 (natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year in millions of dollars--
                                                              --------------------------------------------------
                                                                2009    2010    2011    2012    2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level................................       0       2       2       3       2         9
Estimated Outlays............................................       0       1       2       3       2         8

                                          CHANGES IN DIRECT SPENDING\1\

Estimated Budget Authority...................................       0       0       *      -2      -2        -4
Estimated Outlays............................................       0       0       *      -2      -2       -4
----------------------------------------------------------------------------------------------------------------
\1\CBO estimates that enacting this bill would result in a net increase in offsetting receipts of $8 million
  over the 2009-2018 period.

Note: * = between zero and -$500,000.

    Basis of estimate: For this estimate, CBO assumes that the 
amounts necessary to implement the bill will be appropriated 
each year. Estimated outlays reflect historical spending 
patterns for similar activities.
    S. 906 would require DOE to take custody of commercial 
stocks of domestic mercury, subject to certain conditions. 
According to reports from EPA-sponsored stakeholders' meetings 
held in 2007, the cumulative volume of mercury eligible for DOE 
storage would probably range between 7,500 metric tons and 
10,000 metric tons. The amounts likely to be delivered over the 
next several years are difficult to predict because they would 
depend on investment decisions made by individual firms. Based 
on information in those reports, CBO expects that the demand 
for permanent storage would total about 1,700 metric tons over 
the next 10 years.
    For this estimate, CBO assumes that DOE could store an 
additional 1,200 metric tons of mercury in its existing mercury 
storage building in Oak Ridge, Tennessee, but would have to 
build or renovate additional facilities to accommodate the 
remainder. Thus, we expect that DOE would have to begin 
developing new capacity within the next five years and would 
start receiving materials at the new facility sometime after 
2013. Any fees collected for mercury delivered to DOE's 
existing storage facility would be deposited in the Treasury as 
offsetting receipts, which would reduce direct spending. (By 
contrast, fees paid for materials delivered to a new or 
renovated facility would be contingent on appropriation 
actions, and would be collected after 2013.)

Spending subject to appropriation

    Based on information from DOE, EPA, and the stakeholders' 
meetings, CBO estimates that implementing this bill would 
require the appropriation of about $9 million over the 2009-
2013 period and additional sums over the life of the mercury 
storage operation. CBO expects that DOE would have to spend 
about $2 million to develop guidelines, reports, and analyses 
required by the bill; another $2 million for building upgrades, 
training, and staff needed to store the commercial mercury in a 
manner consistent with the environmental and safety standards 
in the bill; and roughly $5 million to plan and develop new 
storage capacity. In addition, CBO estimates that EPA would 
spend less than $500,000 a year to develop the guidelines and 
reports required by the bill. Estimated spending for DOE and 
EPA activities would total $8 million over the next five years.
    DOE's costs could exceed the amounts included in this 
estimate if state or federal regulatory agencies determined 
that other upgrades to its Oak Ridge facility were needed to 
comply with the new performance standards. For example, 
replacing the department's 40-year-old mercury storage flasks 
would cost about $21 million according to DOE. Whether such 
costs would be incurred is unknown, and such potential costs 
are not included in this estimate.

Direct spending

    S. 906 would affect direct spending in two ways. First, any 
fees collected for mercury delivered to the existing storage 
facility at Oak Ridge would increase offsetting receipts (a 
credit against direct spending). Second, the provisions 
requiring DOE to indemnify those firms from certain 
environmental actions could result in a net cost to the 
government if the fees do not fully cover DOE's liabilities 
under this legislation.
    Proceeds from the one-time storage fees would depend on how 
much DOE would charge. S. 906 would direct the department to 
set fees sufficient to cover the long-term costs of permanently 
storing the commercial stocks of mercury, excluding regulatory 
compliance and land acquisition expenses. The legislation would 
not limit the time for cost recovery (storage of this toxic 
element would continue indefinitely), or allow for any other 
adjustments to the cost calculation. CBO expects that the fees 
necessary to cover the cost of permanent storage would likely 
exceed the amount that industry would be willing to pay. For 
this estimate, however, CBO assumes that DOE would accept 
custody of the mercury that could be stored at its Oak Ridge 
facility and would set the fee at about $3 per pound (or $6,600 
per metric ton), which is at the high end of the range shown in 
reports from the stakeholders' meetings but less than a fee 
that would be needed to fully offset the agency's costs. At 
that level, we estimate that the fee would generate offsetting 
receipts of $8 million over the 2011-2018 period.
    Based on guidelines issued by EPA and the Office of 
Management and Budget, CBO assumes that DOE would set fees 
sufficient to compensate the government for the environmental 
liabilities associated with storing commercial mercury. Thus, 
CBO estimates that the government's indemnification of owners 
of mercury from environmental liability under this bill would 
have no net impact on direct spending over the 2009-2018 
period.
    Estimated impact on state, local, and tribal governments: 
S. 906 contains no intergovernmental mandates as defined in 
UMRA and would not affect the budgets of state, local, or 
tribal governments.
    Estimated impact on the private sector: S. 906 would impose 
a private-sector mandate as defined in UMRA. It would prohibit, 
with some exceptions, the export of elemental mercury from the 
United States beginning in 2010. The cost of the mandate to the 
private sector would be the loss of net income to entities 
currently involved in exporting mercury and, in some cases, the 
cost to those exporters of storing the mercury that cannot 
otherwise be sold. Information from the U.S. Geological Survey 
indicates that the value of mercury exports was less than $10 
million in 2006. Further, CBO expects that the cost of storage 
would not be substantial. Consequently, CBO estimates that the 
cost of the mandate would fall below the annual threshold 
established in UMRA ($136 million in 2008, adjusted annually 
for inflation).
    Previous CBO estimate: On November 9, 2007, CBO transmitted 
a cost estimate for H.R. 1534 as ordered reported by the House 
Committee on Energy and Commerce on October 30, 2007. The two 
bills are nearly identical, and the cost estimates for each 
bill are the same although we would now expect a later 
implementation date.
    Estimate prepared by: Federal Costs: Kathleen Gramp (DOE 
costs) and Susanne Mehlman (EPA costs); Impact on State, Local, 
and Tribal Governments: Burke Doherty; Impact on the Private 
Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                   SENATOR ALEXANDER'S MINORITY VIEWS

    Mercury is dangerous, especially to children and women of 
child-bearing age. It's very likely that every part of 
Tennessee is experiencing some mercury deposition from coal-
fired power plants. That's why I've joined in sponsoring 
legislation putting stiff limits on mercury emissions in every 
two-year Congress since I was elected in the Senate, beginning 
with the Clean Air Planning Act of 2003 that I introduced with 
Senator Carper. That's also why I support the goals of the 
Mercury Market Minimization Act, which would address the 
problem of mercury emitted into the environment overseas by 
banning the export of elemental mercury from the United States. 
However, I am unable to support S. 906 in its current form 
unless it includes language that would prevent the nation's 
mercury from being sent to the Y-12 National Security Complex 
in Oak Ridge, Tennessee.
    Although Y-12 isn't mentioned by name in S. 906, it's clear 
to everyone who has studied this issue--including the 
Congressional Budget Office (CBO)--that the bill as currently 
written would send the nation's mercury there. There are 
several reasons why this doesn't make sense.
    First, it would be inconsistent with the current mission of 
Y-12, which is to deal with highly enriched uranium weapons 
parts and dismantling those parts. This is an important and 
hazardous mission that Y-12 undertakes as a key part of 
providing our nation's nuclear deterrent. The only reason that 
DOE now stores some mercury at Y-12 in Oak Ridge is that this 
mercury is left over from previous Cold War activities. It is 
in the process of being removed.
    Second, it would interfere with the consolidation of the Y-
12 campus. There is an ongoing plan to reduce the footprint of 
that site by more than 60 percent. This plan will save the 
taxpayers money, improve security, and allow Y-12 personnel to 
concentrate on their primary missions relating to highly 
enriched uranium and plutonium. Y-12 does not need additional 
unrelated work like storing mercury at a time when it is trying 
to downsize. The current mercury storage building, which the 
CBO projected would be used to store the rest of the nation's 
mercury, is inside the Y-12 protected area that Y-12 is trying 
to reduce. Putting the rest of the nation's mercury there will 
interfere with the footprint reduction effort. Also, protecting 
a large secure complex like Y-12 is costly, and it makes no 
sense to put more mercury--which does not require high 
security--inside a high security area.
    Third, Oak Ridge is still dealing with the cleanup from 
mercury contamination of buildings, soil, and water leftover 
from its activities during the Cold War. It is Oak Ridge's most 
significant environmental problem, and we don't want to be 
adding mercury at a time when Oak Ridge is still cleaning it 
up. The current mercury cleanup effort at Y-12 will take 
another 10 years and cost $100 million, and the government is 
already having trouble funding it. During the Cold War, Poplar 
Creek in Oak Ridge received hundreds of thousands of pounds of 
mercury, and it all eventually made its way to Watts Bar 
Reservoir. Today, Watts Bar sediment is so contaminated that we 
have restrictions on disturbing it to build a boat dock. To 
force the Department of Energy to reverse course at Y-12 and 
take on additional mercury is counterproductive to the cleanup 
effort that currently goes on there.
    Finally, the Y-12 site is already doing its share of the 
nation's job of storing mercury because it has 1,200 tons of 
mercury--nearly one-fifth of the nation's stockpile--left over 
from previous cold war lithium processing. Y-12 stopped using 
mercury for lithium operations in about 1960, and ever since 
has been storing it, disposing of some of it, and cleaning up 
the rest of it (which is far from being done). So we will take 
our share of the responsibility for dealing with the 1,200 tons 
of mercury that are already there, left over from the Cold War 
nuclear weapons operations. What we are saying is that there is 
rumor of a railroad train that would have all of the nation's 
mercury go to Y-12 at a time when we are still trying to clean 
it up. We believe Oak Ridge is already doing its share, and the 
rest of the country should share part of the burden.
    There are other avenues for achieving the goals of S. 906 
that don't require sending the nation's mercury to Y-12. In 
2006, the Environmental Protection Agency (EPA) published its 
``Roadmap for Mercury,'' a comprehensive approach to dealing 
with mercury in our environment. As part of that effort, the 
EPA convened a series of stakeholder meetings with industry and 
academia in order to consider options for including non-federal 
storage of mercury--which makes sense if one considers that 
Europe has concluded that excess mercury should be stored or 
disposed of by industry and not government. The EPA is not 
finished with this work, and for us to legislate on this 
subject before the EPA is finished (considering that the EPA 
may have a different opinion from ours in the end) could end up 
wasting an enormous amount of taxpayer money.
    In addition, it's not necessary that all the mercury goes 
to one place. Some estimates suggest that up to 100 tons of 
excess mercury is produced annually each year from private gold 
mining activities, most of which occur in Nevada and other 
western states. It would make sense to consider storing that 
mercury in-state rather than shipping it across the country to 
Y-12, which is struggling to adequately store the mercury it 
already has.
    I continue to support the goals of the Mercury Market 
Minimization Act, and am confident that the legislation can be 
modified in a way that doesn't place an undue burden on Y-12 
and the people of Oak Ridge, Tennessee--who are already doing 
their fair share for the country when it comes to mercury 
storage and preserving our nation's nuclear weapons deterrent.
                                                   Lamar Alexander.

                        Changes in Existing Law

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

           *       *       *       *       *       *       *

                              ----------                              

TOXIC SUBSTANCES CONTROL ACT

           *       *       *       *       *       *       *

SEC. 6. REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES.

    (a) Scope of Regulation.--* * *

           *       *       *       *       *       *       *

    (e) Polychlorinated Biphenyls.--(1) Within six months after 
the effective date of this Act the Administrator shall 
promulgate rules to--
          (A)* * *

           *       *       *       *       *       *       *

  (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.

           *       *       *       *       *       *       *

SEC. 12. EXPORTS.

    (a) In General.--(1) Except as provided in paragraph (2) 
and [subsection (b)]subsections (b) and (c), this Act (other 
than section 8) shall not apply to any chemical substance, 
mixture, or to an article containing a chemical substance or 
mixture, if--

           *       *       *       *       *       *       *

  (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.

           *       *       *       *       *       *       *

                              ----------                              

                                  
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