S. 906 

One Hundred Tenth Congress 

of the 

United States of America 

AT THE SECOND SESSION 

Begun and held at the City of Washington on Thursday, 

the third day of January, two thousand and eight 

An Act 

To prohibit the sale, distribution, transfer, and export of elemental mercury, and 

for other purposes. 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Mercury Export Ban Act of 

2008’’. 

SEC. 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; 
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(9) the intentional use of mercury is declining in the United 

States as a consequence of process changes to manufactured 

products (including batteries, paints, switches, and measuring 

devices), but those uses remain substantial in the developing 

world where releases from the products are extremely likely 

due to the limited pollution control and waste management 

infrastructures in those countries; 

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

(11) the European Commission has proposed to the European Parliament and to the Council of the European Union 

a regulation to ban exports of elemental mercury from the 

European Union by 2011; 

(12) the United States is a net exporter of elemental mercury and, according to the United States Geological Survey, 

exported 506 metric tons of elemental mercury more than the 

United States imported during the period of 2000 through 

2004; and 

(13) banning exports of elemental mercury from the United 

States will have a notable effect on the market availability 

of elemental mercury and switching to affordable mercury alternatives in the developing world. 

SEC. 3. PROHIBITION ON SALE, DISTRIBUTION, OR TRANSFER OF ELEMENTAL MERCURY. 

Section 6 of the Toxic Substances Control Act (15 U.S.C. 2605) 

is amended by adding at the end the following: 

‘‘(f) MERCURY.— ‘‘(1) PROHIBITION ON SALE, DISTRIBUTION, OR TRANSFER OF

ELEMENTAL MERCURY BY FEDERAL AGENCIES.—Except 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 January 1, 2013, the export 

of elemental mercury from the United States is prohibited. 

‘‘(2) INAPPLICABILITY OF SUBSECTION (a).—Subsection (a) 

shall not apply to this subsection. 

‘‘(3) REPORT TO CONGRESS ON MERCURY COMPOUNDS.— 
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‘‘(A) REPORT.—Not later than one year after the date 

of enactment of the Mercury Export Ban Act of 2008, 

the Administrator shall publish and submit to Congress 

a report on mercuric chloride, mercurous chloride or calomel, mercuric oxide, and other mercury compounds, if 

any, that may currently be used in significant quantities 

in products or processes. Such report shall include an analysis of— 

‘‘(i) the sources and amounts of each of the mercury 

compounds imported into the United States or manufactured in the United States annually; 

‘‘(ii) the purposes for which each of these compounds are used domestically, the amount of these 

compounds currently consumed annually for each purpose, and the estimated amounts to be consumed for 

each purpose in 2010 and beyond; 

‘‘(iii) the sources and amounts of each mercury 

compound exported from the United States annually 

in each of the last three years; 

‘‘(iv) the potential for these compounds to be processed into elemental mercury after export from the 

United States; and 

‘‘(v) other relevant information that Congress 

should consider in determining whether to extend the 

export prohibition to include one or more of these mercury compounds. 

‘‘(B) PROCEDURE.—For the purpose of preparing the 

report under this paragraph, the Administrator may utilize 

the information gathering authorities of this title, including 

sections 10 and 11. 

‘‘(4) ESSENTIAL USE EXEMPTION.—(A) Any person residing 

in the United States may petition the Administrator for an 

exemption from the prohibition in paragraph (1), and the 

Administrator may grant by rule, after notice and opportunity 

for comment, an exemption for a specified use at an identified 

foreign facility if the Administrator finds that— 

‘‘(i) nonmercury alternatives for the specified use are 

not available in the country where the facility is located; 

‘‘(ii) there is no other source of elemental mercury 

available from domestic supplies (not including new mercury mines) in the country where the elemental mercury 

will be used; 

‘‘(iii) the country where the elemental mercury will 

be used certifies its support for the exemption; 

‘‘(iv) the export will be conducted in such a manner 

as to ensure the elemental mercury will be used at the 

identified facility as described in the petition, and not 

otherwise diverted for other uses for any reason; 

‘‘(v) the elemental mercury will be used in a manner 

that will protect human health and the environment, taking 

into account local, regional, and global human health and 

environmental impacts; 

‘‘(vi) the elemental mercury will be handled and managed in a manner that will protect human health and 

the environment, taking into account local, regional, and 

global human health and environmental impacts; and 
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‘‘(vii) the export of elemental mercury for the specified 

use is consistent with international obligations of the 

United States intended to reduce global mercury supply, 

use, and pollution. 

‘‘(B) Each exemption issued by the Administrator pursuant 

to this paragraph shall contain such terms and conditions as 

are necessary to minimize the export of elemental mercury 

and ensure that the conditions for granting the exemption 

will be fully met, and shall contain such other terms and 

conditions as the Administrator may prescribe. No exemption 

granted pursuant to this paragraph shall exceed three years 

in duration and no such exemption shall exceed 10 metric 

tons of elemental mercury. 

‘‘(C) The Administrator may by order suspend or cancel 

an exemption under this paragraph in the case of a violation 

described in subparagraph (D). 

‘‘(D) A violation of this subsection or the terms and conditions of an exemption, or the submission of false information 

in connection therewith, shall be considered a prohibited act 

under section 15, and shall be subject to penalties under section 

16, injunctive relief under section 17, and citizen suits under 

section 20. 

‘‘(5) CONSISTENCY WITH TRADE OBLIGATIONS.—Nothing in 

this subsection affects, replaces, or amends prior law relating 

to the need for consistency with international trade obligations. 

‘‘(6) EXPORT OF COAL.—Nothing in this subsection shall 

be construed to prohibit the export of coal.’’. 

SEC. 5. 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 be made publically available not later than 

October 1, 2012; 

(B) may be adjusted annually; and 
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(C) shall be set in an amount sufficient to cover the 

costs described in paragraph (2). 

(2) COSTS.—The costs referred to in paragraph (1)(C) are 

the costs to the Department of Energy of providing such 

management and storage, including facility operation and 

maintenance, security, monitoring, reporting, personnel, 

administration, inspections, training, fire suppression, closure, 

and other costs required for compliance with applicable law. 

Such costs shall not include costs associated with land acquisition or permitting of a designated facility under the Solid 

Waste Disposal Act or other applicable law. Building design 

and building construction costs shall only be included to the 

extent that the Secretary finds that the management and storage of elemental mercury accepted under the program under 

this section cannot be accomplished without construction of 

a new building or buildings. 

(c) REPORT.—Not later than 60 days after the end of each 

Federal fiscal year, the Secretary shall transmit to the Committee 

on Energy and Commerce of the House of Representatives and 

the Committee on Environment and Public Works of the Senate 

a report on all of the costs incurred in the previous fiscal year 

associated with the long-term management and storage of elemental 

mercury. Such report shall set forth separately the costs associated 

with activities taken under this section. 

(d) MANAGEMENT STANDARDS FOR A FACILITY.— 

(1) GUIDANCE.—Not 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. Not later than January 1, 2015, 

the Administrator of the Environmental Protection Agency (or 

an authorized State) shall issue a final decision on the permit 

application. 

(2) TRAINING.—The Secretary shall conduct operational 

training and emergency training for all staff that have responsibilities related to elemental mercury management, transfer, 

storage, monitoring, or response. 
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(3) EQUIPMENT.—The Secretary shall ensure that each designated facility has all equipment necessary for routine operations, emergencies, monitoring, checking inventory, loading, 

and storing elemental mercury at the facility. 

(4) FIRE DETECTION AND SUPPRESSION SYSTEMS.—The Secretary shall— 

(A) ensure the installation of fire detection systems 

at each designated facility, including smoke detectors and 

heat detectors; and 

(B) ensure the installation of a permanent fire suppression system, unless the Secretary determines that a permanent fire suppression system is not necessary to protect 

human health and the environment. 

(e) INDEMNIFICATION OF PERSONS DELIVERING ELEMENTAL MERCURY.— 

(1) IN GENERAL.—(A) Except as provided in subparagraph 

(B) and subject to paragraph (2), the Secretary shall hold harmless, defend, and indemnify in full any person who delivers 

elemental mercury to a designated facility under the program 

established under subsection (a) from and against any suit, 

claim, demand or action, liability, judgment, cost, or other 

fee arising out of any claim for personal injury or property 

damage (including death, illness, or loss of or damage to property or economic loss) that results from, or is in any manner 

predicated upon, the release or threatened release of elemental 

mercury as a result of acts or omissions occurring after such 

mercury is delivered to a designated facility described in subsection (a). 

(B) To the extent that a person described in subparagraph 

(A) contributed to any such release or threatened release, 

subparagraph (A) shall not apply. 

(2) CONDITIONS.—No 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. 
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(f) TERMS, CONDITIONS, AND PROCEDURES.—The Secretary is 

authorized to establish such terms, conditions, and procedures as 

are necessary to carry out this section. 

(g) EFFECT ON OTHER LAW.— 

(1) IN GENERAL.—Except as provided in paragraph (2), 

nothing in this section changes or affects any Federal, State, 

or local law or the obligation of any person to comply with 

such law. 

(2) EXCEPTION.—(A) Elemental mercury that the Secretary 

is storing on a long-term basis shall not be subject to the 

storage prohibition of section 3004(j) of the Solid Waste Disposal 

Act (42 U.S.C. 6924(j)). For the purposes of section 3004(j) 

of the Solid Waste Disposal Act, a generator accumulating 

elemental mercury destined for a facility designated by the 

Secretary under subsection (a) for 90 days or less shall be 

deemed to be accumulating the mercury to facilitate proper 

treatment, recovery, or disposal. 

(B) Elemental 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 later than July 1, 2014, the Secretary shall 

transmit to the Congress the results of a study, conducted in consultation with the Administrator of the Environmental Protection 

Agency, that— 

(1) determines the impact of the long-term storage program 

under this section on mercury recycling; and 

(2) includes proposals, if necessary, to mitigate any negative 

impact identified under paragraph (1). 

SEC. 6. REPORT TO CONGRESS. 

At least 3 years after the effective date of the prohibition 

on export of elemental mercury under section 12(c) of the Toxic 

Substances Control Act (15 U.S.C. 2611(c)), as added by section 

4 of this Act, but not later than January 1, 2017, the Administrator 

of the Environmental Protection Agency shall transmit to the Committee on Energy and Commerce of the House of Representatives 

and the Committee on Environment and Public Works of the Senate 

a report on the global supply and trade of elemental mercury, 

including but not limited to the amount of elemental mercury 
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traded globally that originates from primary mining, where such 

primary mining is conducted, and whether additional primary 

mining has occurred as a consequence of this Act. 

Speaker of the House of Representatives. 

Vice President of the United States and

President of the Senate.