99–010

Calendar No. 553

107TH CONGRESS REPORT

2d Session " ! SENATE 107–243

MERCURY REDUCTION ACT OF 2002

AUGUST 28, 2002.—Ordered to be printed

Filed, under authority of the order of the Senate of July 29, 2002.

Mr. JEFFORDS, from the Committee on Environment and Public

Works, submitted the following

REPORT

[to accompany S. 351]

[Including cost estimate of the Congressional Budget Office]

The Committee on Environment and Public Works, to which was

referred the bill (S. 351) to amend the Solid Waste Disposal Act to

reduce the quantity of mercury in the environment by limiting the

use of mercury fever thermometers and improving collection, recycling, and disposal of mercury and for other purposes, reports favorably thereon with an amendment and an amendment to the title

and recommends that the bill as amended do pass.

BACKGROUND

Mercury is a highly lethal and potent neurotoxin that is widespread in the environment. It is particularly harmful to developing

children and pregnant women. A 2000 National Academy of

Sciences report attributed mercury exposure to birth defects and

brain damage in up to 60,000 newborn children each year.

The Environmental Protection Agency (EPA) has estimated that

mercury thermometers contributed approximately 17 tons of mercury to solid waste per year through the early 1990’s. While this

amount has declined since then, mercury fever thermometers continue to represent the largest household source of mercury. Replacement of these household thermometers with non-mercury alternatives (such as digital thermometers) would go a long way toVerDate 11-MAY-2000 12:22 Aug 28, 2002 Jkt 080655 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 H:\REPORTS\S351RPT.TXT SENENV1 PsN: SENENV1
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ward reducing the amount of mercury that eventually ends up in

the environment.

With respect to water pollution, according to the Association of

Metropolitan Sewerage Agencies, technologies that reduce discharges of mercury from wastewater treatment plants to required

levels are estimated to cost ratepayers and taxpayers anywhere

from $10 million to $100 million per pound of mercury. Again, mercury fever thermometers are one of the largest household sources

of mercury in wastewater.

Mercury released into the environment can have a devastating

impact on fish and other natural resources. For example, the common mercury fever thermometer contains approximately 1 gram of

mercury. While this amount is very small, one gram of mercury released to the atmosphere is enough to contaminate fish in a lake

with the surface area of 20 acres, resulting in fish consumption

advisories for mercury. Currently, 42 States have issued consumption advisories for recreationally caught fish and 10 of those States

have also issued advisories for commercially caught fish.

Presently, numerous cities and ten States—Maine, Oregon, Indiana, California, New Hampshire, Maryland, Minnesota, Connecticut, Rhode Island and Michigan—have already banned the

sale of mercury fever thermometers. Over 20,000 of the 32,000 retail stores in the National Association of Chain Drug Stores no

longer sell mercury thermometers and 11 of the top 15 national retailers have stopped selling mercury thermometers. Moreover, no

mercury fever thermometers are manufactured in the United

States; the primary sources are factories in India and China.

PURPOSE OF THE LEGISLATION

The bill as reported: (1) prohibits the sale of mercury fever thermometers except by prescription, (2) directs the EPA to establish

a national mercury thermometer collection and exchange program,

and (3) creates a Federal task force to make recommendations to

Congress regarding the cost-effective, long-term management of

surplus mercury.

SECTION-BY-SECTION ANALYSIS

Section 1. Short Title

This section provides that this Act may be cited as the ‘‘Mercury

Reduction Act of 2002’’.

Sec. 2. Findings

This section lists findings of Congress on the hazards of mercury

to human health, to fish and wildlife, and to the environment.

Sec. 3. Mercury

This section amends the Solid Waste Disposal Act, and adds a

new provision on mercury. This section contains four provisions:

(1) Prohibition on the sale of mercury fever thermometers.—Six

months after the effective date of the legislation, a person shall not

sell or supply mercury fever thermometers to consumers, except by

prescription.

3

(2) Thermometer exchange.—Directs the Administrator of the

U.S. Environmental Protection Agency to make grants to States,

municipalities, nonprofit organizations, or other suitable entities

for implementation of a national program for the collection of mercury fever thermometers from households and their exchange for

non-mercury containing substitutes.

(3) Management of collected mercury.—Requires EPA to take

title to the mercury collected in the above thermometer exchange

program and ensure no release to the environment or reintroduction into commerce of this mercury. It also requires EPA to conduct

research and development on permanent means of safely disposing

of mercury.

(4) Interagency Task Force on Mercury.—Creates a Task Force

to be chaired by the Administrator of the Environmental Protection

Agency with one member each to be appointed by the Secretaries

of State, Defense, and Energy, and Health and Human Services.

The Task Force shall consult with States, industries, health, environmental, and consumer organizations. Not later than 1 year after

the formation of the Task Force, the Task Force shall submit to

Congress a report containing recommendations regarding means of

reducing the total mercury threat to humans and the environment,

including:

• The long term management of surplus mercury collected from

thermometers, and other sources including medical, governmental,

and industrial sources.

• Programs to test the long-term durability of technologies to

sequester mercury. It is the intent of the committee that ‘‘sequester’’ means stabilization techniques or other long-term storage activities;

• Storage of collected surplus mercury in a manner that ensures

there is no release of the mercury into the environment;

• Reduction of the total threat posed by mercury to humans and

the environment; and

• Effective means of reducing the total amount of mercury produced, used, and release on a global basis.

A provision was inserted to clarify that the inclusion of the Task

Force under Subtitle C of the Solid Waste Disposal Act, which

deals with hazardous waste, is not intended to imply that anything

the Task Force considers should be considered a hazardous waste.

The Solid Waste Disposal Act and its implementing regulations already contain the structure for determining when waste materials

are hazardous, and nothing in the Mercury Reduction Act changes

those provisions.

Finally, the bill authorizes $19 million for grants to States and

other eligible entities for the collection and exchange of mercury

fever thermometers and $1 million for EPA’s safe management and

storage of mercury.

LEGISLATIVE HISTORY

On February 15, 2001, Senator Collins and Senator Kerry introduced S. 351. Senators Chafee, Dorgan, Feinstein, Hutchinson, Jeffords, Leahy, Lieberman, Reed, Snowe, Voinovich and Wyden are

cosponsors. No hearings were held on this bill. At a business meetVerDate 11-MAY-2000 12:22 Aug 28, 2002 Jkt 080655 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 H:\REPORTS\S351RPT.TXT SENENV1 PsN: SENENV1
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ing on May 6, 2002, the committee considered S. 351 and accepted

an amendment proposed by Senator Jeffords in the nature of a substitute. By voice vote, S. 351 was ordered to be reported as amended.

REGULATORY IMPACT STATEMENT

Section 11(b) of rule XXVI of the Standing Rules of the Senate

requires publication of the report of the committee’s estimate of the

regulatory impact made by the bill as reported. No regulatory impact is expected by the passage of S. 351. The bill will not affect

the personal privacy of others.

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995

(Public Law 104–4), the committee finds that S. 351 would not impose any Federal intergovernmental unfunded mandates on State,

local, or tribal governments.

COST OF LEGISLATION

Section 403 of the Congressional Budget and Impoundment Control Act requires that a statement of the cost of the reported bill,

prepared by the Congressional Budget Office, be included in the report. That statement follows:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, July 15, 2002.

Hon. JAMES M. JEFFORDS, Chairman,

Committee on Environment and Public Works,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 351, the Mercury Reduction

Act of 2002.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts are Susanne S. Mehlman

(for Federal costs), who can be reached at 226–2860, and Elyse

Goldman (for State and local impact), who can be reached at 225–

3220, and Cecil McPherson (for private-sector imipact), who can be

reached at 226–2940.

Sincerely,

DAN L. CRIPPEN.

S. 351, Mercury Reduction Act of 2002 as ordered reported by the

Senate Committee on Environment and Public Works on June

27, 2002

Summary

Enacting S. 351 would impose a ban on the sale of mercury fever

thermometers, except by prescription. This bill would authorize the

Environmental Protection Agency (EPA) to provide grants to

States, municipalities, and nonprofit organizations for implementation of a national program to help consumers exchange their merVerDate 11-MAY-2000 12:22 Aug 28, 2002 Jkt 080655 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 H:\REPORTS\S351RPT.TXT SENENV1 PsN: SENENV1
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cury thermometers for thermometers that do not contain mercury.

In addition, S. 351 would create an interagency task force (to be

chaired by the Administrator of EPA) that would consult with

States, industry representatives, and health, environmental, and

consumer organizations to develop recommendations for reducing

the long-term threat of mercury to humans and the environment.

EPA also would be responsible for disposing of the mercury waste

collected under the thermometer exchange program and for conducting research and development on permanent methods for disposing of mercury. The bill would authorize the appropriation of $19 million for the grant program, $1 million per year for safe management and disposal of the mercury collected, and $1 million for administrative

support for the interagency task force. Assuming appropriation of

the specified amounts, CBO estimates that implementing this legislation would cost $25 million over the 2003–2007 period. The bill

would not affect direct spending or receipts; therefore, pay-as-yougo procedures would not apply.

S. 351 contains an intergovernmental mandate as defined in the

Unfunded Mandates Reform Act (UMRA), but CBO estimates that

the cost of complying with the mandate would not be significant

and would not exceed the threshold established in that act ($58

million in 2002, adjusted annually for inflation).

S. 351 also contains private-sector mandates, as defined in

UMRA, on the sellers and suppliers of mercury fever thermometers. CBO estimates that the direct cost of those mandates would

fall below the annual threshold established by UMRA ($115 million

in 2002, adjusted annually for inflation).

Estimated Cost to the Federal Government

The estimated budgetary impact of S. 351 is shown in the following table. CBO estimates that implementing the bill would cost

$25 million over the 2003–2007 period, assuming appropriation of

the authorized amounts. This estimate is based on historical spending patterns for similar activities. The costs of this legislation fall

within budget function 300 (natural resources and environment).

By Fiscal Year, in Millions of Dollars

2003 2004 2005 2006 2007

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Thermometer Exchange Program:

Estimated Authorization Level .............................................................. 19 0 0 0 0

Estimated Outlays ................................................................................. 10 6 3 0 0

Safe Management and Disposal of Mercury:

Authorization Level ................................................................................ 1 1 1 1 1

Estimated Outlays ................................................................................. 1 1 1 1 1

Interagency Task Force:

Authorization Level ................................................................................ 1 0 0 0 0

Estimated Outlays ................................................................................. 1 0 0 0 0

Total Proposed Changes.

Estimated Authorization Level .............................................................. 21 1 1 1 1

Estimated Outlays ................................................................................. 12 7 4 1 1

Pay-As-You-Go Considerations: None.

6

Estimated Impact on State, Local, and Tribal Governments

S. 351 would prohibit the sale of mercury thermometers without

a prescription. Since public hospitals own their own pharmacies,

this prohibition would constitute an intergovernmental mandate as

defined in UMRA. Based on information from the Public Hospital

Pharmacy Coalition, CBO estimates that the cost of complying with

the mandate would not be significant and would not exceed the

threshold established in that act ($58 million in 2002, adjusted annually for inflation). The remaining provisions of the bill contain no

mandates and would impose no costs on State, local, or tribal governments.

Estimated Impact on the Private Sector

S. 351 contains two private-sector mandates as defined by

UMRA. The bill would prohibit the sale or supply of mercury fever

thermometers, except by prescription. Second, for each mercury

thermometer sold or supplied by prescription, the manufacturer of

the thermometer would be required to provide clear instructions on

the careful handling of the thermometer to avoid breakage and on

proper cleanup of the thermometer and its contents in the event of

breakage.

Over the past decade, the numbers of mercury fever thermometers sold and supplied has declined because of the environmental

and health risks of mercury. The industry, hospitals, and most

large retail stores have generally shifted away from the production,

use, and sale of mercury fever thermometers. Currently, eight

States and 15 municipalities have enacted bans on mercury thermometers, and over 10 national retail chains have voluntarily committed to sell only mercury-free thermometers.

Given the current trend in the industry and State, hospital, and

retail bans of mercury fever thermometers, the bill would affect

only a small number of manufacturers, sellers, and suppliers. Lost

income due to a loss in sales would not be significant. In addition,

the cost for a manufacturer to provide an insert with clear instructions on handling and cleanup would be small. Thus, CBO estimates that the direct cost of the private-sector mandates in the bill

would be below the annual threshold established by UMRA ($115

million in 2002, adjusted annually for inflation).

Estimate Prepared By: Federal Costs: Susanne S. Mehlman; Impact

on State, Local, and Tribal Governments: Elyse Goldman; Impact

on the Private Sector: Cecil McPherson.

Estimate Approved By: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

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 øblack brackets¿, new matter is printed in italic, existing

law in which no change is proposed is shown in roman:

7

1The Solid Waste Disposal Act (42 U.S.C. 6901–6992k) consists of title II of Public Law 89–

272 and the amendments made by subsequent enactments. This Act is popularly referred to as

the Resource Conservation and Recovery Act, after the short title of the law that amended the

Solid Waste Disposal Act in its entirety in 1976 (P.L. 94–580).

SOLID WASTE DISPOSAL ACT 1

[As Amended Through P.L. 106–580, Dec. 29, 2000]

TITLE II—SOLID WASTE DISPOSAL

Subtitle A—General Provisions

SHORT TITLE AND TABLE OF CONTENTS

SEC. 1001. This title (hereinafter in this title referred to as

‘‘this Act’’), together with the following table of contents, may be

cited as the ‘‘Solid Waste Disposal Act’’:

* * * * * * *

Subtitle A—General Provisions

Sec. 1001. Short title and table of contents.

* * * * * * *

Sec. 3024. Mercury.

* * * * * * *

Subtitle C—Hazardous Waste Management

IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

SEC. 3001. (a) * * *

* * * * * * *

SEC. 3024. MERCURY.

(a) PROHIBITION ON SALE OF MERCURY FEVER THERMOMETERS

EXCEPT BY PRESCRIPTION.—Effective beginning 180 days after the

date of enactment of this section—

(1) a person shall not sell or supply mercury fever thermometers to consumers, except by prescription; and

(2) with each mercury fever thermometer sold or supplied

by prescription, the manufacturer of the thermometer shall provide clear instructions on—

(A) careful handling of the thermometer to avoid breakage; and

(B) proper cleanup of the thermometer and its contents

in the event of breakage.

(b) THERMOMETER EXCHANGE PROGRAM.—The Administrator

shall make grants to States, municipalities, nonprofit organizations,

or other suitable entities for implementation of a national program

for the collection of mercury fever thermometers from households

and their exchange for thermometers that do not contain mercury.

(c) MANAGEMENT OF COLLECTED MERCURY.— (1) TASK FORCE.—

(A) ESTABLISHMENT.—There is established an advisory

committee to be known as the ‘Task Force on Mercury’ (referred to in this section as the ‘Task Force’).

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(B) MEMBERSHIP.—The Task Force shall be composed

of 5 members, of whom— (i) 1 member shall be the Administrator, who shall

serve as Chairperson of the Task Force;

(ii) 1 member shall be the Secretary of State;

(iii) 1 member shall be the Secretary of Defense;

(iv) 1 member shall be the Secretary of Energy;

and

(v) 1 member shall be the Director of the National

Institute of Environmental Health Sciences of the Department of Health and Human Services.

(C) DATE OF APPOINTMENTS.—The appointment of a

member of the Task Force shall be made not later than 30

days after the date of enactment of this section.

(D) TERM; VACANCIES.—

(i) TERM.—A member shall be appointed for the

life of the Task Force.

(ii) VACANCIES.—A vacancy on the Task Force—

(I) shall not affect the powers of the Task

Force; and

(II) shall be filled in the same manner as the

original appointment was made.

(E) MEETINGS.— (i) INITIAL MEETING.—Not later than 30 days after

the date on which all members of the Task Force have

been appointed, the Task Force shall hold the initial

meeting of the Task Force.

(ii) CALLING OF MEETINGS.—The Task Force shall

meet at the call of the Chairperson.

(iii) QUORUM.—A majority of the members of the

Task Force shall constitute a quorum, but a lesser

number of members may hold hearings.

(F) DUTIES.—

(i) IN GENERAL.—Not later than 1 year after the

date of the initial meeting of the Task Force, the Task

Force shall submit to Congress a report containing recommendations and suggested actions concerning— (I) the long-term management of surplus mercury collected from— (aa) mercury fever thermometers;

(bb) other medical and commercial

sources;

(cc) government sources, including mercury stored by the Department of Defense and

the Department of Energy; and

(dd) industrial or other sources in the

United States;

(II) programs to test the long-term durability

of promising technologies for sequestration of mercury;

(III) storage of mercury collected or sequestered under subclause (I) or (II), in a manner that

ensures that there is no release of the mercury into

the environment;

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(IV) reduction of the total threat posed by mercury to humans and the environment; and

(V) reduction of the total quantity of mercury

produced, used, and released on a global basis, including whether and how— (aa) the quantity of virgin mercury mined

from the ground and placed in circulation

each year can be reduced through bilateral or

international agreements or other means;

(bb) the quantity of mercury used in products, mining, and manufacturing can be reduced through substitution of mercury-free alternatives that are safer, available, and affordable; and

(cc) essential mercury needs can be met

through use of stockpiles in existence on the

date of enactment of this section rather than

through use of virgin mercury.

(ii) CONSULTATION.—In carrying out this subparagraph, the Task Force shall consult with States, industries, and health, environmental, and consumer organizations.

(G) HEARINGS.—The Task Force may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Task Force considers advisable to carry out this section.

(H) INFORMATION FROM FEDERAL AGENCIES.— (i) IN GENERAL.—The Task Force may secure directly from a Federal agency such information as the

Task Force considers necessary to carry out this section.

(ii) PROVISION OF INFORMATION.—On request of the

Chairperson of the Task Force, the head of the agency

shall provide the information to the Task Force.

(I) POSTAL SERVICES.—The Task Force may use the

United States mails in the same manner and under the

same conditions as other agencies of the Federal Government.

(J) GIFTS.—The Task Force may accept, use, and dispose of gifts or donations of services or property.

(K) COMPENSATION OF MEMBERS; TRAVEL EXPENSES.—

(i) FEDERAL EMPLOYEES.—A member of the Task

Force who is an officer or employee of the Federal Government shall serve without compensation in addition

to the compensation received for the services of the

member as an officer or employee of the Federal Government.

(ii) TRAVEL EXPENSES.—A member of the Task

Force shall be allowed travel expenses, including per

diem in lieu of subsistence, at rates authorized for an

employee of an agency under subchapter I of chapter 57

of title 5, United States Code, while away from the

home or regular place of business of the member in the

performance of the duties of the Task Force.

10

(L) STAFF AND FUNDING.—

(i) DETERMINATION.—The Chairperson of the Task

Force shall determine the level of staff and funding

that are adequate to carry out the activities of the Task

Force.

(ii) SOURCE.—The staff and funding shall be provided by and drawn equally from the resources of—

(I) the Department of Energy;

(II) the Department of Defense; and

(III) the Environmental Protection Agency.

(iii) APPOINTMENT OF STAFF.—The Chairperson

may, without regard to the civil service laws (including

regulations), appoint and terminate such staff as are

necessary to enable the Task Force to perform the duties of the Task Force.

(iv) COMPENSATION.—

(I) IN GENERAL.—Except as provided in subclause (II), the Chairperson may fix the compensation of the staff of the Task Force that are not officers or employees of the Federal Government without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States

Code, relating to classification of positions and

General Schedule pay rates.

(II) MAXIMUM RATE OF PAY.—The rate of pay

for the staff shall not exceed the rate payable for

level V of the Executive Schedule under section

5316 of title 5, United States Code.

(v) DETAIL OF FEDERAL GOVERNMENT EMPLOYEES.—

(I) IN GENERAL.—An employee of the Federal

Government may be detailed to the Task Force

without reimbursement.

(II) CIVIL SERVICE STATUS.—The detail of the

employee shall be without interruption or loss of

civil service status or privilege.

(vi) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES.—The Chairperson of the Task Force

may procure for the purposes of the Task Force temporary and intermittent services in accordance with

section 3109(b) of title 5, United States Code, at rates

for individuals that do not exceed the daily equivalent

of the annual rate of basic pay prescribed for level V

of the Executive Schedule under section 5316 of that

title.

(M) TERMINATION OF TASK FORCE.—The Task Force

shall terminate on the date that is 90 days after the date

on which the Task Force submits the report required under

subparagraph (F)(i).

(N) NO EFFECT ON OTHER LAW.—Nothing in this paragraph affects the regulation of mercury under—

(i) any other provision of this subtitle; or

(ii) any other law.

11

(2) RESPONSIBILITY OF THE ADMINISTRATOR FOR SAFE MAN- AGEMENT AND STORAGE OF MERCURY.—In consultation with the

Task Force, the Administrator shall— (A)(i) purchase or otherwise take title to the mercury

collected under the thermometer exchange program established under subsection (b), or collected from any other

source;

(ii) manage (or designate a contractor to manage) the

mercury collected in a manner that ensures that the mercury collected is not released into the environment;

(iii) ensure, to the maximum extent practicable, that

the mercury collected under the thermometer exchange program established under subsection (b), or an equivalent

quantity of mercury, is not reintroduced into commerce;

and

(iv) provide to the Task Force, for inclusion in the report of the Task Force under paragraph (1)(F)(i), an analysis of, and recommendations relating to, the mercury collection and management activities carried out under this

section; and

(B)(i) identify potential mercury stabilization technologies and long-term storage measures that ensure minimal release of mercury into the environment; and

(ii) conduct such research, development, and demonstration of the technologies and measures as the Administrator determines to be appropriate.

(d) RELATION TO OTHER LAW.—Nothing in this section— (1) precludes any State from imposing any additional requirement; or

(2) diminishes any obligation, liability, or other responsibility under other Federal law.

(e) AUTHORIZATION OF APPROPRIATIONS.— (1) IN GENERAL.—There is authorized to be appropriated to

carry out this section (other than subsection (c)(2)(A))

$20,000,000, of which—

(A) not more than 2.5 percent shall be used to carry out

the activities of the Task Force; and

(B) not more than 2.5 percent shall be used to carry out

subsection (c)(2)(B).

(2) SAFE MANAGEMENT AND STORAGE.—In addition to the

amount authorized to be appropriated under paragraph (1),

there is authorized to be appropriated to carry out subsection

(c)(2)(A) $1,000,000 for each fiscal year.

* * * * * * *

Æ