II 

Calendar No. 1038 

110TH CONGRESS 

2D SESSION S. 906 

[Report No. 110–477] 

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

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 15, 2007 

Mr. OBAMA (for himself, Ms. MURKOWSKI, Mr. BIDEN, Mr. SALAZAR, Mrs. 

BOXER, and Mr. LEVIN) introduced the following bill; which was read 

twice and referred to the Committee on Environment and Public Works 

SEPTEMBER 22 (legislative day, SEPTEMBER 17), 2008 

Reported by Mrs. BOXER, with an amendment 

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

A BILL 

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

elemental mercury, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Mercury Market Mini5 mization Act of 2007’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) mercury and mercury compounds are highly 

4 toxic to humans, ecosystems, and wildlife; 

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

6 United States of childbearing age have mercury in 

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

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

9 in the United States are at risk of neurological prob10 lems related to mercury; 

11 (4) the most significant source of mercury expo12 sure to people in the United States is ingestion of 

13 mercury-contaminated fish; 

14 (5) the Environmental Protection Agency re15 ports that, as of 2004— 

16 (A) 44 States have fish advisories covering 

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

18 river miles; 

19 (B) in 21 States the freshwater advisories 

20 are statewide; and 

21 (C) in 12 States the coastal advisories are 

22 statewide; 

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

24 is to minimize global mercury use and releases to 

25 eventually achieve reduced contamination levels in 

26 the environment, rather than reducing fish consumpVerDate Aug 31 2005 23:20 Sep 22, 2008 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S906.RS S906

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1 tion since uncontaminated fish represents a critical 

2 and healthy source of nutrition worldwide; 

3 (7) mercury pollution is a transboundary pollut4 ant, depositing locally, regionally, and globally, and 

5 affecting water bodies near industrial sources (in6 cluding the Great Lakes) and remote areas (includ7 ing the Arctic Circle); 

8 (8) the free trade of mercury and mercury com9 pounds on the world market, at relatively low prices 

10 and in ready supply, encourages the continued use 

11 of mercury outside of the United States, often in12 volving highly dispersive activities such as artisinal 

13 gold mining; 

14 (9) the intentional use of mercury is declining 

15 in the United States as a consequence of process 

16 changes to manufactured products (including bat17 teries, paints, switches, and measuring devices), but 

18 those uses remain substantial in the developing 

19 world where releases from the products are ex20 tremely likely due to the limited pollution control 

21 and waste management infrastructures in those 

22 countries; 

23 (10) the member countries of the European 

24 Union collectively are the largest source of mercury 

25 exports globally; 


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1 (11) the European Union is in the process of 

2 enacting legislation that will prohibit mercury ex3 ports by not later than 2011; 

4 (12) the United States is a net exporter of mer5 cury and, according to the United States Geologic 

6 Survey, exported 506 metric tons of mercury more 

7 than the United States imported during the period 

8 of 2000 through 2004; and 

9 (13) banning exports of mercury from the 

10 United States will have a notable affect on the mar11 ket availability of mercury and switching to afford12 able mercury alternatives in the developing world. 

13 SEC. 3. PROHIBITION ON SALE, DISTRIBUTION, OR TRANS14 FER OF MERCURY BY DEPARTMENT OF DE15 FENSE OR DEPARTMENT OF ENERGY. 

16 Section 6 of the Toxic Substances Control Act (15 

17 U.S.C. 2605) is amended by adding at the end the fol18 lowing: 

19 ‘‘(f) MERCURY.— 

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

21 TRANSFER OF MERCURY BY FEDERAL AGENCIES.— 

22 Except as provided in paragraph (2), effective begin23 ning on the date of enactment of this subsection, no 

24 Federal agency shall convey, sell, or distribute to 

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1 ment agency, or any private individual or entity any 

2 elemental mercury under the control or jurisdiction 

3 of the Federal agency. 

4 ‘‘(2) EXCEPTION.—Paragraph (1) shall not 

5 apply to a transfer between Federal agencies of ele6 mental mercury for the sole purpose of facilitating 

7 storage of mercury to carry out this Act.’’. 

8 SEC. 4. PROHIBITION ON EXPORT OF MERCURY. 

9 Section 12 of the Toxic Substances Control Act (15 

10 U.S.C. 2611) is amended— 

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

12 (b)’’ and inserting ‘‘subsections (b) and (c)’’; and 

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

14 ‘‘(c) PROHIBITION ON EXPORT OF MERCURY.— 

15 ‘‘(1) ELEMENTAL MERCURY.—Effective Janu16 ary 1, 2010, the export of elemental mercury from 

17 the United States is prohibited. 

18 ‘‘(2) REPORT TO CONGRESS ON MERCURY COM19 POUNDS.— 

20 ‘‘(A) REPORT.— 

21 ‘‘(i) IN GENERAL.—Not later than 1 

22 year after the date of enactment of the 

23 Mercury Market Minimization Act of 2007, 

24 the Administrator shall publish and submit 

25 to Congress a report on mercuric chloride, 


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1 mercurous chloride or calomel, mercuric 

2 oxide, and other mercury compounds, if 

3 any, that may currently be used in signifi4 cant quantities in products or processes. 

5 ‘‘(ii) INCLUSIONS.—The report shall 

6 include an analysis of— 

7 ‘‘(I) the sources and amounts of 

8 each mercury compound produced an9 nually in, or imported into, the United 

10 States; 

11 ‘‘(II)(aa) the purposes for which 

12 each of the compounds are used do13 mestically; 

14 ‘‘(bb) the quantity of the com15 pounds currently consumed annually 

16 for each purpose; and 

17 ‘‘(cc) the estimated quantity of 

18 the compounds to be consumed for 

19 each purpose during calendar year 

20 2010 and thereafter; 

21 ‘‘(III) the sources and quantities 

22 of each mercury compound exported 

23 from the United States during each of 

24 the preceding 3 calendar years; 


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1 ‘‘(IV) the potential for the com2 pounds to be processed into elemental 

3 mercury after export from the United 

4 States; and 

5 ‘‘(V) other information that Con6 gress should consider in determining 

7 whether to extend the export prohibi8 tion to include 1 or more of those 

9 mercury compounds. 

10 ‘‘(B) PROCEDURE.— 

11 ‘‘(i) IN GENERAL.—Except as pro12 vided in clause (ii), for the purpose of pre13 paring the report under this paragraph, 

14 the Administrator may use the information 

15 gathering authorities of this title, including 

16 sections 10 and 11. 

17 ‘‘(ii) EXCEPTION.—Subsection (b)(2) 

18 of section 11 shall not apply to activities 

19 under this subparagraph. 

20 ‘‘(3) EXCESS MERCURY STORAGE ADVISORY

21 COMMITTEE.— 

22 ‘‘(A) ESTABLISHMENT.—There is estab23 lished an advisory committee, to be known as 

24 the ‘Excess Mercury Storage Advisory ComVerDate Aug 31 2005 23:20 Sep 22, 2008 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S906.RS S906

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1 mittee’ (referred to in this paragraph as the 

2 ‘Committee’). 

3 ‘‘(B) MEMBERSHIP.— 

4 ‘‘(i) IN GENERAL.—The Committee 

5 shall be composed of 9 members, of 

6 whom— 

7 ‘‘(I) 2 members shall be jointly 

8 appointed by the Speaker of the 

9 House of Representatives and the Ma10 jority Leader of the Senate— 

11 ‘‘(aa) 1 of whom shall be 

12 designated to serve as Chair13 person of the Committee; and 

14 ‘‘(bb) 1 of whom shall be 

15 designated to serve as Vice16 Chairperson of the Committee; 

17 ‘‘(II) 1 member shall be the Ad18 ministrator; 

19 ‘‘(III) 1 member shall be the Sec20 retary of Defense; 

21 ‘‘(IV) 1 member shall be a rep22 resentative of State environmental 

23 agencies; 

24 ‘‘(V) 1 member shall be a rep25 resentative of State attorneys general; 


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1 ‘‘(VI) 1 member shall be a rep2 resentative of the chlorine industry; 

3 ‘‘(VII) 1 member shall be a rep4 resentative of the mercury waste 

5 treatment industry; and 

6 ‘‘(VIII) 1 member shall be a rep7 resentative of a nonprofit environ8 mental organization. 

9 ‘‘(ii) APPOINTMENTS.—Not later than 

10 45 days after the date of enactment of this 

11 subsection, the Administrator, in consulta12 tion with the appropriate congressional 

13 committees, shall appoint the members of 

14 the Committee described in subclauses (IV) 

15 through (VIII) of clause (i). 

16 ‘‘(C) INITIAL MEETING.—Not later than 

17 30 days after the date on which all members of 

18 the Committee have been appointed, the Com19 mittee shall hold the initial meeting of the Com20 mittee. 

21 ‘‘(D) MEETINGS.—The Committee shall 

22 meet at the call of the Chairperson. 

23 ‘‘(E) QUORUM.—A majority of the mem24 bers of the Committee shall constitute a 

25 quorum. 


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1 ‘‘(F) REPORT.—Not later than 1 year 

2 after the date of enactment of this subsection, 

3 the Committee shall submit to Congress a re4 port describing the findings and recommenda5 tions of the Committee, if any, relating to— 

6 ‘‘(i) the environmental, health, and 

7 safety requirements necessary to prevent— 

8 ‘‘(I) the release of elemental mer9 cury into the environment; and 

10 ‘‘(II) worker exposure from the 

11 storage of elemental mercury; 

12 ‘‘(ii) the estimated annual cost of 

13 storing elemental mercury on a per-pound 

14 or per-ton basis; 

15 ‘‘(iii) for the 40-year period beginning 

16 on the date of submission of the report, 

17 the optimal size, number, and other char18 acteristics of Federal facilities required to 

19 store elemental mercury under current and 

20 anticipated jurisdictions of each Federal 

21 agency; 

22 ‘‘(iv) the estimated quantity of— 

23 ‘‘(I) elemental mercury that will 

24 result from the decommissioning of 


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1 mercury cell chlor-alkali facilities in 

2 the United States; and 

3 ‘‘(II) any other supplies that may 

4 require storage to carry out this Act; 

5 ‘‘(v) for the 40-year period beginning 

6 on the date of submission of the report, 

7 the estimated quantity of elemental mer8 cury generated from the recycling of un9 wanted products and other wastes that will 

10 require storage to comply with the export 

11 prohibitions under this Act; 

12 ‘‘(vi) any legal, technical, economic, or 

13 other barrier that may prevent the private 

14 sector from storing elemental mercury pro15 duced by the private sector during the 40- 

16 year period beginning on the date of sub17 mission of the report, including a descrip18 tion of measures to address the barriers; 

19 ‘‘(vii) the advantages and disadvan20 tages of consolidating the storage of mer21 cury produced by public and private 

22 sources under the management of the pub23 lic or private sector; 


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1 ‘‘(viii) the optimal plan of the Com2 mittee for storing excess mercury produced 

3 by public and private sources; and 

4 ‘‘(ix) additional research, if any, re5 quired to determine a long-term disposal 

6 option for the storage of excess mercury. 

7 ‘‘(G) COMPENSATION OF MEMBERS.— 

8 ‘‘(i) IN GENERAL.— 

9 ‘‘(I) NON-FEDERAL EMPLOY10 EES.—A member of the Committee 

11 who is not an officer or employee of 

12 the Federal Government shall be com13 pensated at a rate equal to the daily 

14 equivalent of the annual rate of basic 

15 pay prescribed for level V of the Exec16 utive Schedule under section 5316 of 

17 title 5, United States Code, for each 

18 day (including travel time) during 

19 which the member is engaged in the 

20 performance of the duties of the Com21 mittee. 

22 ‘‘(II) FEDERAL EMPLOYEES.—A 

23 member of the Committee who is an 

24 officer or employee of the Federal 

25 Government shall serve without comVerDate Aug 31 2005 23:20 Sep 22, 2008 Jkt 059200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S906.RS S906

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1 pensation in addition to the com2 pensation received for the services of 

3 the member as an officer or employee 

4 of the Federal Government. 

5 ‘‘(ii) TRAVEL EXPENSES.—A member 

6 of the Committee shall be allowed travel 

7 expenses, including per diem in lieu of sub8 sistence, at rates authorized for an em9 ployee of an agency under subchapter I of 

10 chapter 57 of title 5, United States Code, 

11 while away from the home or regular place 

12 of business of the member in the perform13 ance of the duties of the Committee. 

14 ‘‘(H) STAFF AND FUNDING.—The Admin15 istrator shall provide to the Committee such 

16 funding and additional personnel as are nec17 essary to enable the Committee to perform the 

18 duties of the Committee. 

19 ‘‘(I) TERMINATION.—The Committee shall 

20 terminate 180 days after the date on which the 

21 Committee submits the report of the Committee 

22 under subparagraph (F). 

23 ‘‘(4) INAPPLICABILITY OF UNREASONABLE RISK

24 REQUIREMENT.—Subsection (a) shall not apply to 

25 this subsection.’’. 


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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 the 

10 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 reports 

18 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; 


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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 the 

4 environment, rather than reducing fish consumption 

5 since uncontaminated fish represents a critical and 

6 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 (includ10 ing the Great Lakes) and remote areas (including the 

11 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 in 

19 the United States as a consequence of process changes 

20 to manufactured products (including batteries, paints, 

21 switches, and measuring devices), but those uses re22 main substantial in the developing world where re23 leases from the products are extremely likely due to 

24 the limited pollution control and waste management 

25 infrastructures in those countries; 


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1 (10) the member countries of the European 

2 Union collectively are the largest source of elemental 

3 mercury exports globally; 

4 (11) the European Commission has proposed to 

5 the European Parliament and to the Council of the 

6 European Union a regulation to ban exports of ele7 mental mercury from the European Union by 2011; 

8 (12) the United States is a net exporter of ele9 mental mercury and, according to the United States 

10 Geological Survey, exported 506 metric tons of ele11 mental mercury more than the United States im12 ported during the period of 2000 through 2004; and 

13 (13) banning exports of elemental mercury from 

14 the United States will have a notable effect on the 

15 market availability of elemental mercury and switch16 ing to affordable mercury alternatives in the devel17 oping world. 

18 SEC. 3. PROHIBITION ON SALE, DISTRIBUTION, OR TRANS19 FER OF ELEMENTAL MERCURY. 

20 Section 6 of the Toxic Substances Control Act (15 

21 U.S.C. 2605) is amended by adding at the end the following: 

22 ‘‘(f) MERCURY.— 

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

24 TRANSFER OF ELEMENTAL MERCURY BY FEDERAL

25 AGENCIES.—Except as provided in paragraph (2), efVerDate Aug 31 2005 23:20 Sep 22, 2008 Jkt 059200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6203 E:\BILLS\S906.RS S906

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1 fective beginning on the date of enactment of this sub2 section, no Federal agency shall convey, sell, or dis3 tribute to any other Federal agency, any State or 

4 local government agency, or any private individual or 

5 entity any elemental mercury under the control or ju6 risdiction of the Federal agency. 

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

8 apply to— 

9 ‘‘(A) a transfer between Federal agencies of 

10 elemental mercury for the sole purpose of facili11 tating storage of mercury to carry out this Act; 

12 or 

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

14 transfer of coal. 

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

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

17 SEC. 4. PROHIBITION ON EXPORT OF ELEMENTAL MER18 CURY. 

19 Section 12 of the Toxic Substances Control Act (15 

20 U.S.C. 2611) is amended— 

21 (1) in subsection (a) by striking ‘‘subsection (b)’’ 

22 and inserting ‘‘subsections (b) and (c)’’; and 

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

24 ‘‘(c) PROHIBITION ON EXPORT OF ELEMENTAL MER25 CURY.— 


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1 ‘‘(1) PROHIBITION.—Effective January 1, 2010, 

2 the export of elemental mercury from the United 

3 States is prohibited. 

4 ‘‘(2) INAPPLICABILITY OF SUBSECTION (a).—Sub5 section (a) shall not apply to this subsection. 

6 ‘‘(3) REPORT TO CONGRESS ON MERCURY COM7 POUNDS.— 

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

9 after the date of enactment of the Mercury Ex10 port Ban Act of 2008, the Administrator shall 

11 publish and submit to Congress a report on mer12 curic chloride, mercurous chloride or calomel, 

13 mercuric oxide, and other mercury compounds, if 

14 any, that may currently be used in significant 

15 quantities in products or processes. Such report 

16 shall include an analysis of— 

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

18 the mercury compounds imported into the 

19 United States or manufactured in the 

20 United States annually; 

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

22 these compounds are used domestically, the 

23 amount of these compounds currently con24 sumed annually for each purpose, and the 


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1 estimated amounts to be consumed for each 

2 purpose in 2010 and beyond; 

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

4 mercury compound exported from the 

5 United States annually in each of the last 

6 three years; 

7 ‘‘(iv) the potential for these compounds 

8 to be processed into elemental mercury after 

9 export from the United States; and 

10 ‘‘(v) other relevant information that 

11 Congress should consider in determining 

12 whether to extend the export prohibition to 

13 include one or more of these mercury com14 pounds. 

15 ‘‘(B) PROCEDURE.—For the purpose of pre16 paring the report under this paragraph, the Ad17 ministrator may utilize the information gath18 ering authorities of this title, including sections 

19 10 and 11. 

20 ‘‘(4) ESSENTIAL USE EXEMPTION.—(A) Any per21 son residing in the United States may petition the 

22 Administrator for an exemption from the prohibition 

23 in paragraph (1), and the Administrator may grant 

24 by rule, after notice and opportunity for comment, an 


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1 exemption for a specified use at an identified foreign 

2 facility if the Administrator finds that— 

3 ‘‘(i) nonmercury alternatives for the speci4 fied use are not available in the country where 

5 the facility is located; 

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

7 mercury available from domestic supplies (not 

8 including new mercury mines) in the country 

9 where the elemental mercury will be used; 

10 ‘‘(iii) the country where the elemental mer11 cury will be used certifies its support for the ex12 emption; 

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

14 manner as to ensure the elemental mercury will 

15 be used at the identified facility as described in 

16 the petition, and not otherwise diverted for other 

17 uses for any reason; 

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

19 a manner that will protect human health and 

20 the environment, taking into account local, re21 gional, and global human health and environ22 mental impacts; 

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

24 and managed in a manner that will protect 

25 human health and the environment, taking into 


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1 account local, regional, and global human health 

2 and environmental impacts; and 

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

4 the specified use is consistent with international 

5 obligations of the United States intended to re6 duce global mercury supply, use, and pollution. 

7 ‘‘(B) Each exemption issued by the Adminis8 trator pursuant to this paragraph shall contain such 

9 terms and conditions as are necessary to minimize 

10 the export of elemental mercury and ensure that the 

11 conditions for granting the exemption will be fully 

12 met, and shall contain such other terms and condi13 tions as the Administrator may prescribe. No exemp14 tion granted pursuant to this paragraph shall exceed 

15 three years in duration and no such exemption shall 

16 exceed 10 metric tons of elemental mercury. 

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

18 or cancel an exemption under this paragraph in the 

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

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

21 and conditions of an exemption, or the submission of 

22 false information in connection therewith, shall be 

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1 tive relief under section 17, and citizen suits under 

2 section 20. 

3 ‘‘(5) CONSISTENCY WITH TRADE OBLIGATIONS.— 

4 Nothing in this subsection affects, replaces, or amends 

5 prior law relating to the need for consistency with 

6 international trade obligations. 

7 ‘‘(6) EXPORT OF COAL.—Nothing in this sub8 section shall be construed to prohibit the export of 

9 coal.’’. 

10 SEC. 5. LONG-TERM STORAGE. 

11 (a) ESTABLISHMENT OF PROGRAM.—Not later than 

12 January 1, 2010, the Secretary of Energy (in this section 

13 referred to as the ‘‘Secretary’’) shall accept custody, for the 

14 purpose of long-term management and storage, of elemental 

15 mercury generated within the United States and delivered 

16 to a facility of the Department of Energy designated by the 

17 Secretary. 

18 (b) FEES.— 

19 (1) IN GENERAL.—After consultation with per20 sons who are likely to deliver elemental mercury to a 

21 designated facility for long-term management and 

22 storage under the program prescribed in subsection 

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

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

25 for providing such management and storage, based on 


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1 the pro rata cost of long-term management and stor2 age of elemental mercury delivered to the facility. The 

3 amount of such fees— 

4 (A) shall be made publically available not 

5 later than October 1, 2009; 

6 (B) may be adjusted annually; and 

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

8 cover the costs described in paragraph (2). 

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

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

11 providing such management and storage, including 

12 facility operation and maintenance, security, moni13 toring, reporting, personnel, administration, inspec14 tions, training, fire suppression, closure, and other 

15 costs required for compliance with applicable law. 

16 Such costs shall not include costs associated with land 

17 acquisition or permitting of a designated facility 

18 under the Solid Waste Disposal Act or other applica19 ble law. Building design and building construction 

20 costs shall only be included to the extent that the Sec21 retary finds that the management and storage of ele22 mental mercury accepted under the program under 

23 this section cannot be accomplished without construc24 tion of a new building or buildings. 


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

2 each Federal fiscal year, the Secretary shall transmit to the 

3 Committee on Energy and Commerce of the House of Rep4 resentatives and the Committee on Environment and Public 

5 Works of the Senate a report on all of the costs incurred 

6 in the previous fiscal year associated with the long-term 

7 management and storage of elemental mercury. Such report 

8 shall set forth separately the costs associated with activities 

9 taken under this section. 

10 (d) MANAGEMENT STANDARDS FOR A FACILITY.— 

11 (1) GUIDANCE.—Not later than October 1, 2009, 

12 the Secretary, after consultation with the Adminis13 trator of the Environmental Protection Agency and 

14 all appropriate State agencies in affected States, shall 

15 make available, including to potential users of the 

16 long-term management and storage program estab17 lished under subsection (a), guidance that establishes 

18 procedures and standards for the receipt, manage19 ment, and long-term storage of elemental mercury at 

20 a designated facility or facilities, including require21 ments to ensure appropriate use of flasks or other 

22 suitable shipping containers. Such procedures and 

23 standards shall be protective of human health and the 

24 environment and shall ensure that the elemental mer25 cury is stored in a safe, secure, and effective manner. 


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1 In addition to such procedures and standards, ele2 mental mercury managed and stored under this sec3 tion at a designated facility shall be subject to the re4 quirements of the Solid Waste Disposal Act, including 

5 the requirements of subtitle C of that Act, except as 

6 provided in subsection (g)(2) of this section. A des7 ignated facility in existence on or before January 1, 

8 2010, is authorized to operate under interim status 

9 pursuant to section 3005(e) of the Solid Waste Dis10 posal Act until a final decision on a permit applica11 tion is made pursuant to section 3005(c) of the Solid 

12 Waste Disposal Act. Not later than January 1, 2012, 

13 the Administrator of the Environmental Protection 

14 Agency (or an authorized State) shall issue a final 

15 decision on the permit application. 

16 (2) TRAINING.—The Secretary shall conduct 

17 operational training and emergency training for all 

18 staff that have responsibilities related to elemental 

19 mercury management, transfer, storage, monitoring, 

20 or response. 

21 (3) EQUIPMENT.—The Secretary shall ensure 

22 that each designated facility has all equipment nec23 essary for routine operations, emergencies, moni24 toring, checking inventory, loading, and storing ele25 mental mercury at the facility. 


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1 (4) FIRE DETECTION AND SUPPRESSION SYS2 TEMS.—The Secretary shall— 

3 (A) ensure the installation of fire detection 

4 systems at each designated facility, including 

5 smoke detectors and heat detectors; and 

6 (B) ensure the installation of a permanent 

7 fire suppression system, unless the Secretary de8 termines that a permanent fire suppression sys9 tem is not necessary to protect human health 

10 and the environment. 

11 (e) INDEMNIFICATION OF PERSONS DELIVERING ELE12 MENTAL MERCURY.— 

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

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

15 Secretary shall hold harmless, defend, and indemnify 

16 in full any person who delivers elemental mercury to 

17 a designated facility under the program established 

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

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

20 other fee arising out of any claim for personal injury 

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

22 of or damage to property or economic loss) that re23 sults from, or is in any manner predicated upon, the 

24 release or threatened release of elemental mercury as 

25 a result of acts or omissions occurring after such merVerDate Aug 31 2005 23:20 Sep 22, 2008 Jkt 059200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6203 E:\BILLS\S906.RS S906

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1 cury is delivered to a designated facility described in 

2 subsection (a). 

3 (B) To the extent that a person described in sub4 paragraph (A) contributed to any such release or 

5 threatened release, subparagraph (A) shall not apply. 

6 (2) CONDITIONS.—No indemnification may be 

7 afforded under this subsection unless the person seek8 ing indemnification— 

9 (A) notifies the Secretary in writing within 

10 30 days after receiving written notice of the 

11 claim for which indemnification is sought; 

12 (B) furnishes to the Secretary copies of per13 tinent papers the person receives; 

14 (C) furnishes evidence or proof of any 

15 claim, loss, or damage covered by this subsection; 

16 and 

17 (D) provides, upon request by the Secretary, 

18 access to the records and personnel of the person 

19 for purposes of defending or settling the claim or 

20 action. 

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

22 case in which the Secretary determines that the De23 partment of Energy may be required to make indem24 nification payments to a person under this subsection 

25 for any suit, claim, demand or action, liability, judgVerDate Aug 31 2005 23:20 Sep 22, 2008 Jkt 059200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6203 E:\BILLS\S906.RS S906

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1 ment, cost, or other fee arising out of any claim for 

2 personal injury or property damage referred to in 

3 paragraph (1)(A), the Secretary may settle or defend, 

4 on behalf of that person, the claim for personal injury 

5 or property damage. 

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

7 if the person to whom the Department of Energy may 

8 be required to make indemnification payments does 

9 not allow the Secretary to settle or defend the claim, 

10 the person may not be afforded indemnification with 

11 respect to that claim under this subsection. 

12 (f) TERMS, CONDITIONS, AND PROCEDURES.—The Sec13 retary is authorized to establish such terms, conditions, and 

14 procedures as are necessary to carry out this section. 

15 (g) EFFECT ON OTHER LAW.— 

16 (1) IN GENERAL.—Except as provided in para17 graph (2), nothing in this section changes or affects 

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

19 any person to comply with such law. 

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

21 the Secretary is storing on a long-term basis shall not 

22 be subject to the storage prohibition of section 3004(j) 

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

24 For the purposes of section 3004(j) of the Solid Waste 

25 Disposal Act, a generator accumulating elemental 


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1 mercury destined for a facility designated by the Sec2 retary under subsection (a) for 90 days or less shall 

3 be deemed to be accumulating the mercury to facili4 tate proper treatment, recovery, or disposal. 

5 (B) Elemental mercury that is stored at a facil6 ity with respect to which a permit has been issued 

7 under section 3005(c) of the Solid Waste Disposal Act 

8 (42 U.S.C. 6925(c)) shall not be subject to the storage 

9 prohibition of section 3004(j) of the Solid Waste Dis10 posal Act (42 U.S.C. 6924(j)) if— 

11 (i) the Secretary is unable to accept the 

12 mercury at a facility designated by the Secretary 

13 under subsection (a) for reasons beyond the con14 trol of the owner or operator of the permitted fa15 cility; 

16 (ii) the owner or operator of the permitted 

17 facility certifies in writing to the Secretary that 

18 it will ship the mercury to the designated facility 

19 when the Secretary is able to accept the mercury; 

20 and 

21 (iii) the owner or operator of the permitted 

22 facility certifies in writing to the Secretary that 

23 it will not sell, or otherwise place into commerce, 

24 the mercury. 


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1 This subparagraph shall not apply to mercury with 

2 respect to which the owner or operator of the per3 mitted facility fails to comply with a certification 

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

5 (h) STUDY.—Not later than July 1, 2011, the Sec6 retary shall transmit to the Congress the results of a study, 

7 conducted in consultation with the Administrator of the 

8 Environmental Protection Agency, that— 

9 (1) determines the impact of the long-term stor10 age program under this section on mercury recycling; 

11 and 

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

13 any negative impact identified under paragraph (1). 

14 SEC. 6. REPORT TO CONGRESS. 

15 At least 3 years after the effective date of the prohibi16 tion on export of elemental mercury under section 12(c) of 

17 the Toxic Substances Control Act (15 U.S.C. 2611(c)), as 

18 added by section 4 of this Act, but not later than January 

19 1, 2014, the Administrator of the Environmental Protection 

20 Agency shall transmit to the Committee on Energy and 

21 Commerce of the House of Representatives and the Com22 mittee on Environment and Public Works of the Senate a 

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

24 including but not limited to the amount of elemental mer25 cury traded globally that originates from primary mining, 


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1 where such primary mining is conducted, and whether ad2 ditional primary mining has occurred as a consequence of 

3 this Act. 


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Calendar No. 1038 

110TH CONGRESS 

2D SESSION S. 906 

[Report No. 110–477] 

A BILL 

To prohibit the sale, distribution, transfer, and exposes. port of elemental mercury, and for other purSEPTEMBER 22 (legislative day, SEPTEMBER 17), 2008 

Reported with an amendment 


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