110TH CONGRESS 

2D SESSION S. 906 

AN ACT 

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

elemental mercury, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
2 

•S 906 ES

1 SECTION 1. SHORT TITLE. 

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

3 Act of 2008’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds that— 

6 (1) mercury is highly toxic to humans, eco7 systems, and wildlife; 

8 (2) as many as 10 percent of women in the 

9 United States of childbearing age have mercury in 

10 the blood at a level that could put a baby at risk; 

11 (3) as many as 630,000 children born annually 

12 in the United States are at risk of neurological prob13 lems related to mercury; 

14 (4) the most significant source of mercury expo15 sure to people in the United States is ingestion of 

16 mercury-contaminated fish; 

17 (5) the Environmental Protection Agency re18 ports that, as of 2004— 

19 (A) 44 States have fish advisories covering 

20 over 13,000,000 lake acres and over 750,000 

21 river miles; 

22 (B) in 21 States the freshwater advisories 

23 are statewide; and 

24 (C) in 12 States the coastal advisories are 

25 statewide; 
3 

•S 906 ES

1 (6) the long-term solution to mercury pollution 

2 is to minimize global mercury use and releases to 

3 eventually achieve reduced contamination levels in 

4 the environment, rather than reducing fish consump5 tion since uncontaminated fish represents a critical 

6 and healthy source of nutrition worldwide; 

7 (7) mercury pollution is a transboundary pollut8 ant, depositing locally, regionally, and globally, and 

9 affecting water bodies near industrial sources (in10 cluding the Great Lakes) and remote areas (includ11 ing the Arctic Circle); 

12 (8) the free trade of elemental mercury on the 

13 world market, at relatively low prices and in ready 

14 supply, encourages the continued use of elemental 

15 mercury outside of the United States, often involving 

16 highly dispersive activities such as artisinal gold 

17 mining; 

18 (9) the intentional use of mercury is declining 

19 in the United States as a consequence of process 

20 changes to manufactured products (including bat21 teries, paints, switches, and measuring devices), but 

22 those uses remain substantial in the developing 

23 world where releases from the products are ex24 tremely likely due to the limited pollution control 
4 

•S 906 ES

1 and waste management infrastructures in those 

2 countries; 

3 (10) the member countries of the European 

4 Union collectively are the largest source of elemental 

5 mercury exports globally; 

6 (11) the European Commission has proposed to 

7 the European Parliament and to the Council of the 

8 European Union a regulation to ban exports of ele9 mental mercury from the European Union by 2011; 

10 (12) the United States is a net exporter of ele11 mental mercury and, according to the United States 

12 Geological Survey, exported 506 metric tons of ele13 mental mercury more than the United States im14 ported during the period of 2000 through 2004; and 

15 (13) banning exports of elemental mercury from 

16 the United States will have a notable effect on the 

17 market availability of elemental mercury and switch18 ing to affordable mercury alternatives in the devel19 oping world. 

20 SEC. 3. PROHIBITION ON SALE, DISTRIBUTION, OR TRANS21 FER OF ELEMENTAL MERCURY. 

22 Section 6 of the Toxic Substances Control Act (15 

23 U.S.C. 2605) is amended by adding at the end the fol24 lowing: 

25 ‘‘(f) MERCURY.— 
5 

•S 906 ES

1 ‘‘(1) PROHIBITION ON SALE, DISTRIBUTION, OR

2 TRANSFER OF ELEMENTAL MERCURY BY FEDERAL

3 AGENCIES.—Except as provided in paragraph (2), 

4 effective beginning on the date of enactment of this 

5 subsection, no Federal agency shall convey, sell, or 

6 distribute to any other Federal agency, any State or 

7 local government agency, or any private individual or 

8 entity any elemental mercury under the control or 

9 jurisdiction of the Federal agency. 

10 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not 

11 apply to— 

12 ‘‘(A) a transfer between Federal agencies 

13 of elemental mercury for the sole purpose of fa14 cilitating storage of mercury to carry out this 

15 Act; or 

16 ‘‘(B) a conveyance, sale, distribution, or 

17 transfer of coal. 

18 ‘‘(3) LEASES OF FEDERAL COAL.—Nothing in 

19 this subsection prohibits the leasing of coal.’’. 

20 SEC. 4. PROHIBITION ON EXPORT OF ELEMENTAL MER21 CURY. 

22 Section 12 of the Toxic Substances Control Act (15 

23 U.S.C. 2611) is amended— 

24 (1) in subsection (a) by striking ‘‘subsection 

25 (b)’’ and inserting ‘‘subsections (b) and (c)’’; and 
6 

•S 906 ES

1 (2) by adding at the end the following: 

2 ‘‘(c) PROHIBITION ON EXPORT OF ELEMENTAL MER3 CURY.— 

4 ‘‘(1) PROHIBITION.—Effective January 1, 

5 2013, the export of elemental mercury from the 

6 United States is prohibited. 

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

8 Subsection (a) shall not apply to this subsection. 

9 ‘‘(3) REPORT TO CONGRESS ON MERCURY COM10 POUNDS.— 

11 ‘‘(A) REPORT.—Not later than one year 

12 after the date of enactment of the Mercury Ex13 port Ban Act of 2008, the Administrator shall 

14 publish and submit to Congress a report on 

15 mercuric chloride, mercurous chloride or cal16 omel, mercuric oxide, and other mercury com17 pounds, if any, that may currently be used in 

18 significant quantities in products or processes. 

19 Such report shall include an analysis of— 

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

21 of the mercury compounds imported into 

22 the United States or manufactured in the 

23 United States annually; 

24 ‘‘(ii) the purposes for which each of 

25 these compounds are used domestically, the 
7 

•S 906 ES

1 amount of these compounds currently con2 sumed annually for each purpose, and the 

3 estimated amounts to be consumed for 

4 each purpose in 2010 and beyond; 

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

6 mercury compound exported from the 

7 United States annually in each of the last 

8 three years; 

9 ‘‘(iv) the potential for these com10 pounds to be processed into elemental mer11 cury after export from the United States; 

12 and 

13 ‘‘(v) other relevant information that 

14 Congress should consider in determining 

15 whether to extend the export prohibition to 

16 include one or more of these mercury com17 pounds. 

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

19 preparing the report under this paragraph, the 

20 Administrator may utilize the information gath21 ering authorities of this title, including sections 

22 10 and 11. 

23 ‘‘(4) ESSENTIAL USE EXEMPTION.—(A) Any 

24 person residing in the United States may petition 

25 the Administrator for an exemption from the prohi-
8 

•S 906 ES

1 bition in paragraph (1), and the Administrator may 

2 grant by rule, after notice and opportunity for com3 ment, an exemption for a specified use at an identi4 fied foreign facility if the Administrator finds that— 

5 ‘‘(i) nonmercury alternatives for the speci6 fied use are not available in the country where 

7 the facility is located; 

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

9 mercury available from domestic supplies (not 

10 including new mercury mines) in the country 

11 where the elemental mercury will be used; 

12 ‘‘(iii) the country where the elemental mer13 cury will be used certifies its support for the ex14 emption; 

15 ‘‘(iv) the export will be conducted in such 

16 a manner as to ensure the elemental mercury 

17 will be used at the identified facility as de18 scribed in the petition, and not otherwise di19 verted for other uses for any reason; 

20 ‘‘(v) the elemental mercury will be used in 

21 a manner that will protect human health and 

22 the environment, taking into account local, re23 gional, and global human health and environ24 mental impacts; 
9 

•S 906 ES

1 ‘‘(vi) the elemental mercury will be handled 

2 and managed in a manner that will protect 

3 human health and the environment, taking into 

4 account local, regional, and global human 

5 health and environmental impacts; and 

6 ‘‘(vii) the export of elemental mercury for 

7 the specified use is consistent with international 

8 obligations of the United States intended to re9 duce global mercury supply, use, and pollution. 

10 ‘‘(B) Each exemption issued by the Adminis11 trator pursuant to this paragraph shall contain such 

12 terms and conditions as are necessary to minimize 

13 the export of elemental mercury and ensure that the 

14 conditions for granting the exemption will be fully 

15 met, and shall contain such other terms and condi16 tions as the Administrator may prescribe. No exemp17 tion granted pursuant to this paragraph shall exceed 

18 three years in duration and no such exemption shall 

19 exceed 10 metric tons of elemental mercury. 

20 ‘‘(C) The Administrator may by order suspend 

21 or cancel an exemption under this paragraph in the 

22 case of a violation described in subparagraph (D). 

23 ‘‘(D) A violation of this subsection or the terms 

24 and conditions of an exemption, or the submission of 

25 false information in connection therewith, shall be 
10 

•S 906 ES

1 considered a prohibited act under section 15, and 

2 shall be subject to penalties under section 16, in3 junctive relief under section 17, and citizen suits 

4 under section 20. 

5 ‘‘(5) CONSISTENCY WITH TRADE OBLIGA6 TIONS.—Nothing in this subsection affects, replaces, 

7 or amends prior law relating to the need for consist8 ency with international trade obligations. 

9 ‘‘(6) EXPORT OF COAL.—Nothing in this sub10 section shall be construed to prohibit the export of 

11 coal.’’. 

12 SEC. 5. LONG-TERM STORAGE. 

13 (a) DESIGNATION OF FACILITY.— 

14 (1) IN GENERAL.—Not later than January 1, 

15 2010, the Secretary of Energy (referred to in this 

16 section as the ‘‘Secretary’’) shall designate a facility 

17 or facilities of the Department of Energy, which 

18 shall not include the Y–12 National Security Com19 plex or any other portion or facility of the Oak 

20 Ridge Reservation of the Department of Energy, for 

21 the purpose of long-term management and storage 

22 of elemental mercury generated within the United 

23 States. 

24 (2) OPERATION OF FACILITY.—Not later than 

25 January 1, 2013, the facility designated in para-
11 

•S 906 ES

1 graph (1) shall be operational and shall accept cus2 tody, for the purpose of long-term management and 

3 storage, of elemental mercury generated within the 

4 United States and delivered to such facility. 

5 (b) FEES.— 

6 (1) IN GENERAL.—After consultation with per7 sons who are likely to deliver elemental mercury to 

8 a designated facility for long-term management and 

9 storage under the program prescribed in subsection 

10 (a), and with other interested persons, the Secretary 

11 shall assess and collect a fee at the time of delivery 

12 for providing such management and storage, based 

13 on the pro rata cost of long-term management and 

14 storage of elemental mercury delivered to the facil15 ity. The amount of such fees— 

16 (A) shall be made publically available not 

17 later than October 1, 2012; 

18 (B) may be adjusted annually; and 

19 (C) shall be set in an amount sufficient to 

20 cover the costs described in paragraph (2). 

21 (2) COSTS.—The costs referred to in paragraph 

22 (1)(C) are the costs to the Department of Energy of 

23 providing such management and storage, including 

24 facility operation and maintenance, security, moni25 toring, reporting, personnel, administration, inspec-
12 

•S 906 ES

1 tions, training, fire suppression, closure, and other 

2 costs required for compliance with applicable law. 

3 Such costs shall not include costs associated with 

4 land acquisition or permitting of a designated facil5 ity under the Solid Waste Disposal Act or other ap6 plicable law. Building design and building construc7 tion costs shall only be included to the extent that 

8 the Secretary finds that the management and stor9 age of elemental mercury accepted under the pro10 gram under this section cannot be accomplished 

11 without construction of a new building or buildings. 

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

13 of each Federal fiscal year, the Secretary shall transmit 

14 to the Committee on Energy and Commerce of the House 

15 of Representatives and the Committee on Environment 

16 and Public Works of the Senate a report on all of the 

17 costs incurred in the previous fiscal year associated with 

18 the long-term management and storage of elemental mer19 cury. Such report shall set forth separately the costs asso20 ciated with activities taken under this section. 

21 (d) MANAGEMENT STANDARDS FOR A FACILITY.— 

22 (1) GUIDANCE.—Not later than October 1, 

23 2009, the Secretary, after consultation with the Ad24 ministrator of the Environmental Protection Agency 

25 and all appropriate State agencies in affected States, 
13 

•S 906 ES

1 shall make available, including to potential users of 

2 the long-term management and storage program es3 tablished under subsection (a), guidance that estab4 lishes procedures and standards for the receipt, 

5 management, and long-term storage of elemental 

6 mercury at a designated facility or facilities, includ7 ing requirements to ensure appropriate use of flasks 

8 or other suitable shipping containers. Such proce9 dures and standards shall be protective of human 

10 health and the environment and shall ensure that 

11 the elemental mercury is stored in a safe, secure, 

12 and effective manner. In addition to such procedures 

13 and standards, elemental mercury managed and 

14 stored under this section at a designated facility 

15 shall be subject to the requirements of the Solid 

16 Waste Disposal Act, including the requirements of 

17 subtitle C of that Act, except as provided in sub18 section (g)(2) of this section. A designated facility in 

19 existence on or before January 1, 2013, is author20 ized to operate under interim status pursuant to sec21 tion 3005(e) of the Solid Waste Disposal Act until 

22 a final decision on a permit application is made pur23 suant to section 3005(c) of the Solid Waste Disposal 

24 Act. Not later than January 1, 2015, the Adminis25 trator of the Environmental Protection Agency (or 
14 

•S 906 ES

1 an authorized State) shall issue a final decision on 

2 the permit application. 

3 (2) TRAINING.—The Secretary shall conduct 

4 operational training and emergency training for all 

5 staff that have responsibilities related to elemental 

6 mercury management, transfer, storage, monitoring, 

7 or response. 

8 (3) EQUIPMENT.—The Secretary shall ensure 

9 that each designated facility has all equipment nec10 essary for routine operations, emergencies, moni11 toring, checking inventory, loading, and storing ele12 mental mercury at the facility. 

13 (4) FIRE DETECTION AND SUPPRESSION SYS14 TEMS.—The Secretary shall— 

15 (A) ensure the installation of fire detection 

16 systems at each designated facility, including 

17 smoke detectors and heat detectors; and 

18 (B) ensure the installation of a permanent 

19 fire suppression system, unless the Secretary 

20 determines that a permanent fire suppression 

21 system is not necessary to protect human 

22 health and the environment. 

23 (e) INDEMNIFICATION OF PERSONS DELIVERING

24 ELEMENTAL MERCURY.— 
15 

•S 906 ES

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

2 subparagraph (B) and subject to paragraph (2), the 

3 Secretary shall hold harmless, defend, and indemnify 

4 in full any person who delivers elemental mercury to 

5 a designated facility under the program established 

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

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

8 other fee arising out of any claim for personal injury 

9 or property damage (including death, illness, or loss 

10 of or damage to property or economic loss) that re11 sults from, or is in any manner predicated upon, the 

12 release or threatened release of elemental mercury as 

13 a result of acts or omissions occurring after such 

14 mercury is delivered to a designated facility de15 scribed in subsection (a). 

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

17 subparagraph (A) contributed to any such release or 

18 threatened release, subparagraph (A) shall not 

19 apply. 

20 (2) CONDITIONS.—No indemnification may be 

21 afforded under this subsection unless the person 

22 seeking indemnification— 

23 (A) notifies the Secretary in writing within 

24 30 days after receiving written notice of the 

25 claim for which indemnification is sought; 
16 

•S 906 ES

1 (B) furnishes to the Secretary copies of 

2 pertinent papers the person receives; 

3 (C) furnishes evidence or proof of any 

4 claim, loss, or damage covered by this sub5 section; and 

6 (D) provides, upon request by the Sec7 retary, access to the records and personnel of 

8 the person for purposes of defending or settling 

9 the claim or action. 

10 (3) AUTHORITY OF SECRETARY.—(A) In any 

11 case in which the Secretary determines that the De12 partment of Energy may be required to make indem13 nification payments to a person under this sub14 section for any suit, claim, demand or action, liabil15 ity, judgment, cost, or other fee arising out of any 

16 claim for personal injury or property damage re17 ferred to in paragraph (1)(A), the Secretary may 

18 settle or defend, on behalf of that person, the claim 

19 for personal injury or property damage. 

20 (B) In any case described in subparagraph (A), 

21 if the person to whom the Department of Energy 

22 may be required to make indemnification payments 

23 does not allow the Secretary to settle or defend the 

24 claim, the person may not be afforded indemnifica25 tion with respect to that claim under this subsection. 
17 

•S 906 ES

1 (f) TERMS, CONDITIONS, AND PROCEDURES.—The 

2 Secretary is authorized to establish such terms, conditions, 

3 and procedures as are necessary to carry out this section. 

4 (g) EFFECT ON OTHER LAW.— 

5 (1) IN GENERAL.—Except as provided in para6 graph (2), nothing in this section changes or affects 

7 any Federal, State, or local law or the obligation of 

8 any person to comply with such law. 

9 (2) EXCEPTION.—(A) Elemental mercury that 

10 the Secretary is storing on a long-term basis shall 

11 not be subject to the storage prohibition of section 

12 3004(j) of the Solid Waste Disposal Act (42 U.S.C. 

13 6924(j)). For the purposes of section 3004(j) of the 

14 Solid Waste Disposal Act, a generator accumulating 

15 elemental mercury destined for a facility designated 

16 by the Secretary under subsection (a) for 90 days or 

17 less shall be deemed to be accumulating the mercury 

18 to facilitate proper treatment, recovery, or disposal. 

19 (B) Elemental mercury may be stored at a fa20 cility with respect to which any permit has been 

21 issued under section 3005(c) of the Solid Waste Dis22 posal Act (42 U.S.C. 6925(c)), and shall not be sub23 ject to the storage prohibition of section 3004(j) of 

24 the Solid Waste Disposal Act (42 U.S.C. 6924(j)) 

25 if— 
18 

•S 906 ES

1 (i) the Secretary is unable to accept the 

2 mercury at a facility designated by the Sec3 retary under subsection (a) for reasons beyond 

4 the control of the owner or operator of the per5 mitted facility; 

6 (ii) the owner or operator of the permitted 

7 facility certifies in writing to the Secretary that 

8 it will ship the mercury to the designated facil9 ity when the Secretary is able to accept the 

10 mercury; and 

11 (iii) the owner or operator of the permitted 

12 facility certifies in writing to the Secretary that 

13 it will not sell, or otherwise place into com14 merce, the mercury. 

15 This subparagraph shall not apply to mercury with 

16 respect to which the owner or operator of the per17 mitted facility fails to comply with a certification 

18 provided under clause (ii) or (iii). 

19 (h) STUDY.—Not later than July 1, 2014, the Sec20 retary shall transmit to the Congress the results of a 

21 study, conducted in consultation with the Administrator 

22 of the Environmental Protection Agency, that— 

23 (1) determines the impact of the long-term stor24 age program under this section on mercury recy25 cling; and 
19 

•S 906 ES

1 (2) includes proposals, if necessary, to mitigate 

2 any negative impact identified under paragraph (1). 

3 SEC. 6. REPORT TO CONGRESS. 

4 At least 3 years after the effective date of the prohibi5 tion on export of elemental mercury under section 12(c) 

6 of the Toxic Substances Control Act (15 U.S.C. 2611(c)), 

7 as added by section 4 of this Act, but not later than Janu8 ary 1, 2017, the Administrator of the Environmental Pro9 tection Agency shall transmit to the Committee on Energy 

10 and Commerce of the House of Representatives and the 

11 Committee on Environment and Public Works of the Sen12 ate a report on the global supply and trade of elemental 

13 mercury, including but not limited to the amount of ele14 mental mercury traded globally that originates from pri15 mary mining, where such primary mining is conducted, 

16 and whether additional primary mining has occurred as 

17 a consequence of this Act. 

Passed the Senate September 26 (legislative day, 

September 17), 2008. 

Attest: 

Secretary. 
110TH CONGRESS 

2D SESSION S. 906 

AN ACT 

To prohibit the sale, distribution, transfer, and exposes. port of elemental mercury, and for other pur-