[Senate Report 110-477]
[From the U.S. Government Publishing Office]
Calendar No. 1038
110th Congress Report
SENATE
2d Session 110-477
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MERCURY MARKET MINIMIZATION ACT OF 2007
_______
September 22 (legislative day, September 17), 2008.--Ordered to be
printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 906]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 906) to prohibit the sale, distribution,
transfer, and export of elemental mercury and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends the bill as amended do pass.
Purpose and Summary of the Legislation
The purpose of S. 906, the Mercury Export Ban Act of 2007
is to prohibit the sale, distribution, and transfer of
elemental mercury held by Federal agencies as of the date of
enactment of this act. S. 906 would still allow for such
transfers between Federal agencies for the purpose of storage.
By 2010, S. 906 would also ban the export of elemental mercury
and provide a long-term management and storage option for
elemental mercury generated by private entities. The bill also
allows the Administrator of the Environmental Protection Agency
(EPA) to grant an exemption from the export prohibition by
rule, after notice and opportunity for comment, if the
Administrator finds that certain conditions have been met.
The bill directs the EPA to submit a report to Congress one
year after the date of enactment that describes the sources and
amounts of mercury compounds used, processed, and imported into
and exported from the United States. The report must also
describe the potential for exported mercury compounds to be
processed into elemental mercury. The legislation also directs
EPA to submit a report to Congress three years after the
effective date of the prohibition that describes the quantity
of elemental mercury traded globally from primary mining,
locations where that mining is conducted, and whether the
mining has occurred as a consequence of the Act.
S. 906 directs the Secretary of Energy (Secretary) to
accept custody, for the purpose of long-term management and
storage, of elemental mercury generated in the U.S. and
delivered to a Department of Energy facility designated by the
Secretary, and to be funded by fees established under the
legislation. The Secretary is to annually report on the costs
incurred in the previous fiscal year related to the management
and storage of elemental mercury. The Secretary must report by
July 1, 2011, on the effect of the long-term storage program on
mercury recycling, and provide proposals to mitigate negative
impacts of the long-term storage program.
Background and Need for the Legislation
Mercury exists in three basic forms. Elemental mercury is a
very dense, shiny, silver-colored metal. Elemental mercury is
the pure form of mercury (i.e., it is not combined with any
other elements). A second form of mercury is inorganic mercury
compounds. This form is created when elemental mercury is
combined with other elements such as oxygen, chlorine, or
sulfur. Inorganic mercury compounds are used in fungicides,
disinfectant agents, and antiseptics. The third basic form is
organic mercury compounds. These compounds are combinations of
mercury and carbon. The most common organic mercury compound is
methylmercury.
Mercury is a neurotoxin that is harmful to human health,
including especially pregnant women, newborns, and children.
Mercury exposure can harm human development and the nervous
system. Infants and children are especially sensitive to
mercury's impacts--even at low doses that do not harm adults.
Prenatal exposures to low mercury concentrations can cause
children to perform poorly in tests of attention, fine motor
skills, language, and verbal memory. The EPA states: ``There is
some evidence that exposure to methylmercury also can affect
the cardiovascular, immune, and reproductive system.''
EPA has determined that children born to women with blood
mercury concentrations above 5.8 parts per billion (ppb) are at
some increased risk of adverse health effects. The EPA
estimated that 8 percent of women of child-bearing age had at
least 5.8 ppb (1999-2000). In 2006, there were 152 million
women of child-bearing age--equaling 62 million women at risk.
In 2005, researchers cited a study that found cord-blood
mercury levels may be on average 70 percent higher than in
maternal blood, and estimate that up to 637,233 infants each
year are exposed to dangerous levels of mercury, though some in
industry dispute this figure.\1\
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\1\L. Trasande, P. Landrigan, and C. Schechter, ``Public Health and
Economic Consequences of Methyl Mercury Toxicity to the Developing
Brain,'' Environmental Health Perspectives, p. 590, v. 113, no. 5, (May
2005).
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There are various sources of exposure to mercury, including
through eating food and breathing air that contains mercury,
and by ingesting dirt and other substances contaminated with
mercury. Bioaccumulation causes mercury to become concentrated
in predators, which can cause mercury concentrations thousands
or millions of times greater than are found in the water.
Eating mercury-tainted fish can be a substantial source of
human exposure.
According to the EPA: ``Most of the large industrial
sources of mercury emissions are sites where mercury is emitted
as a byproduct of combustion processes. Other major sources of
mercury include industrial processes and product that use
mercury deliberately, such as certain chlor-alkali chlorine
manufacturing processes, batteries, lamps, and measuring
devices such as thermometers. Mercury is also released through
mining practices, sewage discharge, and metal refining
operations. In the U.S., there are more than 100 manufacturing
processes that use some form of mercury.''
In 2006, the US Geological Survey (USGS) found that the US
imported 94 metric tons (mt) of mercury and exported 390 mt.
The US imported 118 mt of calomel, which can contain up to 80
percent mercury. Mercury is also reclaimed from several
sources, including automobile switches, dental amalgam, lights,
lab and medical devices, and thermostats. Calomel is also
collected from pollution control devices at gold smelters.
According to the USGS, domestic mercury consumption is
estimated to be 50 percent for chlorine manufacturing and 50
percent in other uses. The chlorine industry purchases about
100 tons of replacement mercury each year. EPA reports that
there are currently 10 domestic facilities that use mercury to
create chlorine, and that one of those has temporarily
suspended its mercury cell operations.\2\
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\2\EPA, ``Cleanup of Mercury-Contaminated Chlor-Alkali Sites,''
available online at http://www.epa.gov/epaoswer/hazwaste/mercury/
cleanup.htm.
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Under the federal Toxic Release Inventory, industry reports
releasing or otherwise managing more than 5 million pounds of
mercury in 2006. According to EPA, large electric utilities
release roughly 50 tons of mercury a year. In 1997, EPA
estimated that chlor-alkali plants were the fifth largest
source of mercury emissions. However, reported mercury
emissions may not account for substantial fugitive emissions
(through holes, cracks in pipes and joints, for example). In
2003, EPA stated: ``The issue of unaccounted for mercury has
been the subject of intense scrutiny from other groups within
EPA and the industry . . . [but] the fate of all the mercury
consumed at mercury cell chlor-alkali plants remains somewhat
of an enigma.''
Domestic supplies of elemental mercury are sold to metals
recyclers and brokers who sell the mercury to buyers
internationally. Large amounts of the surplus elemental mercury
from the United States and other industrialized nations ends up
in developing countries through this process. This mercury can
be sold to artisanal and small-scale gold miners located
primarily in Africa, Asia, and South America. These miners and
their family members are usually unaware of the dangers of
mercury exposure, and are unprepared to safely handle mercury.
According to the United Nations Environment Program (UNEP),
artisanal and small-scale gold mining involves an estimated 10
to 15 million people, including 4.5 million women and 1 million
children. This use of mercury creates extensive occupational
health hazards, polluted sites, and contaminated ecosystems.
UNEP estimates that artisanal and small-scale mining operations
volatize as much as 300 metric tons of mercury into the
atmosphere, and discharge as much as 700 metric tons of mercury
from mining tailings into soil, rivers, and lakes.
While mercury emissions create localized ``hot spots,''
they can also be transported over long distances and can remain
in the atmosphere for long periods of time. Once deposited,
mercury can contaminate water bodies and land, and enters the
food chain.
The most common route of mercury exposure in the United
States is through consumption of mercury-contaminated fish.
EPA's 2007 National Listing of Fish Advisories demonstrates
that 48 States, one Territory, and two Tribes have issued
mercury fish advisories, covering 14,177,175 lake acres and
882,963 river miles.
Other governments have also acted to stem the flow of
mercury. The European Union's legislative body, the European
Parliament, voted in June of 2007 to prohibit the export of
elemental mercury and mercury compounds by 2010. The European
Parliament also adopted a safe storage requirement for holders
of excess elemental mercury. The Environmental Ministers for
the member nations of the European Union have proposed that the
mercury export prohibition take effect in 2011.
Summary of Major Provisions of the Bill
The bill prohibits the sale, distribution, and transfer of
elemental mercury held by Federal agencies as of the date of
enactment. S. 906 would still allow for such transfers between
Federal agencies for the purpose of storage. By 2010, S. 906
would also ban the export of elemental mercury and provide a
long-term management and storage option for elemental mercury
generated by private entities. The bill also allows the
Administrator of the Environmental Protection Agency (EPA) to
grant an exemption from the export prohibition by rule, after
notice and opportunity for comment, if the Administrator finds
that certain conditions have been met.
S. 906, the Mercury Export Ban Act of 2007, also directs
the EPA to submit a report to Congress one year after the date
of enactment that describes the sources and amounts of mercury
compounds used, processed, and imported into and exported from
the United States. The report must also describe the potential
for exported mercury compounds to be processed into elemental
mercury. The Act also requires EPA to report by 2013 on the
global supply and trade of elemental mercury, including the
amount that originates from primary mining and whether
additional primary mining has occurred as a consequence of this
Act.
S. 906 directs the Secretary to accept custody, for the
purpose of long-term management and storage, of elemental
mercury generated in the U.S. and delivered to a facility
Department of Energy facility designated by the Secretary, and
to be funded by fees established under the legislation. S. 906
also directs the Secretary to annually report on the costs
incurred in the previous fiscal year related to the management
and storage of elemental mercury. The Secretary must report by
July 1, 2011, on the effect of the long-term storage program on
mercury recycling, and provide proposals to mitigate negative
impacts of the long-term storage program.
Section-by-Section Analysis
Section 1. Short title
Section 1 establishes the short title of the Act as the
``Mercury Export Ban Act of 2007''.
Section 2. Findings
This section contains findings related to mercury
pollution, health effects attributed to mercury, and global use
of elemental mercury.
Section 3. Prohibition on sale, distribution, or transfer of elemental
mercury
This section provides that effective beginning from the
date of enactment of this legislation, no Federal agency shall
convey, sell, or distribute to any other Federal agency, any
State or local government agency, or any private individual or
entity any elemental mercury under the control or jurisdiction
of the Federal agency. An exception is made for a transfer
between Federal agencies of elemental mercury for the sole
purpose of facilitating storage of mercury to carry out the
Act.
Section 4. Prohibition on export of elemental mercury
Section 4 establishes a new subsection (c) in Section 12 of
the Toxic Substances Control Act. This new subsection would
prohibit the export of elemental mercury from the United States
beginning January 1, 2010. The export ban does not affect the
sale, recovery, or other use of mercury in the United States.
Further, the Committee does not intend that this prohibition
prevent exportation of coal or fly ash, a by-product of coal
combustion, or manufactured consumer products containing
elemental mercury.
New subsection (c)(3) requires the EPA to submit a report
to Congress one year after enactment addressing:
(i) the sources and amounts of mercury compounds that
may be used in significant quantities in products and
processes produced annually in the United States or
imported into the United States;
(ii) the purposes for which each of these compounds
are used domestically and the amount of these compounds
consumed annually;
(iii) the sources and amounts of each mercury
compound exported from the United States annually in
each of the last three years;
(iv) the potential for these compounds to be
processed into elemental mercury after export from the
United States; and
(v) other information that Congress should consider
in determining whether to extend export prohibition to
include one or more of these mercury compounds.
The Administrator may utilize the information gathering
authorities of the Toxic Substances Control Act for the purpose
of preparing the report.
New subsection (c)(4) allows any person residing in the
United States to petition the Administrator for an exemption
from the prohibition on export of elemental mercury. The
Administrator may grant by rule, after notice and opportunity
for comment, an exemption for a specified use at an identified
foreign facility if each of the following findings is
satisfied:
(i) non-mercury alternatives for the specified use
are not available in the country where the facility is
located;
(ii) there is no other source of elemental mercury
available from domestic supplies (not including new
mercury mines) in the country where the elemental
mercury will be used;
(iii) the country where the elemental mercury will be
used certifies its support for the exemption;
(iv) the export will be conducted in such a manner as
to ensure the elemental mercury will be used at the
identified facility and not otherwise diverted for
other uses for any reason;
(v) the elemental mercury will be used, handled, and
managed in a manner that will protect human health and
the environment, taking into account local, regional,
and global human health and environmental effects; and
(vi) the export of elemental mercury for the
specified use is consistent with international
obligations of the United States intended to reduce
global mercury supply, use, and pollution.
The Administrator must also include in the exemption such
terms and conditions as are necessary to minimize the export of
elemental mercury and ensure that the conditions for granting
the exemption will be fully met. No single exemption can exceed
3 years in duration and 10 metric tons of elemental mercury.
The Administrator may by order suspend or cancel an
exemption in the case of a violation of the subsection, a
violation of the terms and conditions of an exemption, or the
submission of false information. Violations of the statutory
requirements or the terms and conditions of an exemption, or
the submission of false information in connection therewith are
a prohibited act under Section 15 of the Toxic Substances
Control Act. Such violations shall be subject to penalties,
injunctive relief, and citizen suits as provided in the Toxic
Substances Control Act.
In new subsection (c)(5) existing provision of law refers
to any law in existence before the enactment of this Act. It is
the intent of the Committee to not affect, replace, or amend
existing law relating to the need for consistency with
international trade obligations.
New subsection (c)(6) provides that nothing in the
subsection shall be construed to prohibit the export of coal.
Section 5. Long-term storage
Section 5(a) requires the Secretary of Energy not later
than January 1, 2010, to accept custody, for the purpose of
long-term management and storage, of elemental mercury
generated within the United States and delivered to a facility
of the Department of Energy designated by the Secretary. The
Committee purposely did not designate any particular facility
of the Department of Energy but left that choice in the
discretion of the Secretary.
Subsection (b)(1) requires the Secretary, after appropriate
consultation with interested parties, to assess and collect a
fee at the time of delivery to cover the pro rata cost of long-
term management and storage of elemental mercury delivered to
the facility.
Subsection (b)(2) provides that the amount of the fees is
to be made publicly available not later than October 1, 2009,
and may be adjusted annually. The costs covered by the fee are
the costs to the Department of Energy of providing management
and storage for the elemental mercury delivered to the
facility, including enumerated costs such as facility operation
and maintenance, security, monitoring, reporting, personnel,
administration, inspections, training, fire suppression,
closure, and other costs required for compliance with
applicable law. Such costs shall not include costs associated
with land acquisition or permitting of a designated facility
under the Solid Waste Disposal Act, 42 U.S.C. Sec. 6901 et seq.
(1976), or other applicable law. Building design and building
construction costs shall only be included to the extent that
the Secretary finds that the management and storage of
elemental mercury, accepted under the program created by this
section, cannot be accomplished without construction of a new
building or buildings.
Subsection (c) requires the Secretary to report annually to
the appropriate Committees of jurisdiction on all of the costs
incurred in the previous fiscal year associated with the long-
term management and storage of elemental mercury, including a
separate accounting of the costs associated with activities
taken under this section.
Subsection (d) requires the Secretary not later than
October 1, 2009, after consultation with EPA and all
appropriate State agencies in affected States, to make guidance
available to potential users of the program setting forth
procedures and standards for the receipt, management, and long-
term storage of elemental mercury at a designated facility or
facilities. The procedures must be protective of human health
and the environment and shall ensure that the elemental mercury
is stored in a safe, secure, and effective manner.
Additionally, the elemental mercury managed and stored at a
designated facility shall be subject to the requirements of the
Solid Waste Disposal Act. The only exception is set forth in
subsection (g)(2) which provides that the elemental mercury the
Secretary is storing on a long-term basis shall not be subject
to the storage prohibition of section 3004(j) of the Solid
Waste Disposal Act.
Subsection (d)(1) further provides that a designated
facility in existence on or before January 1, 2010, is
authorized to operate under interim status pursuant to section
3005(e) of the Solid Waste Disposal Act until a final decision
on a permit application is made pursuant to Section 3005(c) of
the Solid Waste Disposal Act. The Administrator of EPA (or an
authorized State) is required to issue a final decision on the
permit application not later than January 1, 2012.
Subsections (d)(2), (3), and (4), provide for the conduct
of operational and emergency training, assurance that the
designated facility will have necessary equipment, and the
installation of fire detection systems and fire suppression
systems, respectively.
Subsection (e) provides indemnification for persons
delivering elemental mercury for a claim that results from, or
is in a manner predicated upon, the release or threatened
release of elemental mercury as a result of acts or omissions
occurring after such mercury is delivered to a designated
facility described in subsection (a). This indemnification
provision is modeled on Section 330 of the National Defense
Authorization Act of Fiscal Year 1993, Pub. L. No. 102-484, 106
Stat. 2315, 2371-73 (1992) (codified as amended at 10 U.S.C.
Sec. 2687 note (2000)). Indemnification is not applicable to a
person who has contributed to any such release or threatened
release.
Subsection (e)(2) provides that no indemnification may be
afforded unless the person seeking indemnification follows
certain procedures and provides certain information concerning
the claim, loss, or damage, and provides the Secretary access
to records and personnel. Subsection (e)(3) gives the Secretary
the authority to settle or defend the claim for personal injury
or property damage in any case in which the Secretary
determines that the Department of Energy may be required to
make indemnification payments to a person under this
subsection.
Subsection (f) authorizes the Secretary to establish such
terms, conditions, and procedures as are necessary to carry out
this section.
Subsection (g)(1) provides that except as provided in
paragraph (2), nothing in the section changes or affects any
Federal, State, or local law or the obligation of any person to
comply with such law. Paragraph (2) allows a generator
accumulating elemental mercury destined for a facility
designated by the Secretary to store mercury for a period of 90
days or less. Further, paragraph (2) provides authority to
store elemental mercury at a facility that has been issued a
permit under section 3005(c) of the Solid Waste Disposal Act,
notwithstanding section 3004(j) of that Act, if the Secretary
is unable to accept mercury at a facility designated by the
Secretary for reasons beyond the control of the owner or
operator of the permitted facility. The owner or operator of
the permitted facility must also make certain certifications
set forth in subsection (g)(2)(B)(ii) and (iii) and comply with
them to benefit from this provision.
Subsection (h) requires the Secretary, in consultation with
the Administrator of EPA, to report to Congress by July 1,
2011, on the effect of the long-term storage program on mercury
recycling and include proposals, if necessary, to mitigate any
negative effect.
Section 6. Report to Congress
This section requires the EPA Administrator to report by
January 1, 2014, on the global supply and trade of elemental
mercury and whether additional primary mining has occurred as a
consequence of this Act.
Legislative History, Committee Views and Votes
COMMITTEE VIEWS
The committee believes that the nation must do more to
protect human health and the environment from mercury
emissions. S. 906 is an important step in reducing the use of
mercury that contributed to increased risk in the United States
from exposure to mercury. The bill also will help to protect
women, children, and others in other countries that end up
being exposed to mercury exported from the United States.
By reducing the potential for mercury to be released back
into the environment and elsewhere, the Committee believes that
the legislation will help states address mercury contamination
problems. Twenty-three States have issued statewide advisories
for all freshwater lakes and/or rivers, and 12 States have
statewide advisories for mercury in coastal waters. The 23
States with statewide freshwater advisories are: Connecticut,
Florida, Illinois, Indiana, Kentucky, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Montana, New
Hampshire, New Jersey, North Dakota, Ohio, Oklahoma,
Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and
West Virginia. The 12 States with coastal water advisories are:
Alabama, Florida, Georgia, Louisiana, Maine, Massachusetts,
Mississippi, New Hampshire, North Carolina, Rhode Island, South
Carolina, and Texas. Hawaii also has a statewide advisory for
mercury in marine fish.
The Federal Government can and should do more to help
States address these serious threats to public health. S. 906
will help accomplish this by reducing the flow of mercury in
commerce, which will reduce opportunities for people and
wildlife to be exposed to mercury.
The Federal Government has already proven that it can store
mercury for long periods of time. Federal surplus mercury is
currently stored in a number of different locations. The
Department of Defense, which holds more than 4,000 metric tons,
manages its own stockpiles. The Department of Energy, which
holds more than 1,300 metric tons, also manages its stockpiles.
S. 906 also builds on past Federal agency decisions to stop
selling mercury. The Department of Defense stopped selling
surplus mercury in 1994 because of environmental and public
health concerns. Since December 2006 the Department of Energy
has said that it would continue to store its mercury rather
than sell it. Consistent with these departmental policies, the
Mercury Export Ban Act of 2008 would ensure that the Federal
Government's elemental mercury remains in storage by
prohibiting the sale, distribution, and transfer of elemental
mercury held by Federal agencies, as of the date of enactment.
Transfer of elemental mercury between Federal agencies would
continue to be allowed for the sole purpose of facilitating
storage of elemental mercury to carry out this Act.
S. 906 will also help to address potentially large
infusions of mercury into the world marketplace. According to
the United States Geological Survey, approximately 3,000 tons
of mercury that could become available for recycling is
contained in the remaining nine U.S. mercury-cell chlorine-
caustic soda plants. These plants use mercury to mercury-cell
technology to produce chlorine, caustic soda, and other
chemicals. However, there are a number of widely-used
alternatives to mercury-cell technology, and the chlorine
industry continues to shift to using these technologies. S. 906
will provide an important storage site that private industry
can use to reduce the use of this dangerous metal.
Other non-governmental sources of elemental mercury include
the mining industry, mercury recycling and recovery operations.
There are no mercury mines in the United States. Elemental
mercury is, however, generated as a by-product of gold mining.
EPA estimates that approximately 118 metric tons of elemental
mercury was generated as a by-product of gold mining in 2006.
Further, S. 906 specifically provides that the
legislation's prohibition on the conveyance, sale,
distribution, or transfer of elemental mercury does not
prohibit the leasing of coal, and does not prevent exportation
of coal or fly ash, a by-product of coal combustion, or
manufactured consumer products containing elemental mercury.
Elemental mercury is also generated through recycling
products and waste recovery programs. Such material includes
certain thermometers, fluorescent light bulbs, auto switches,
electronics, and other products. EPA estimates that product
recycling and waste recovery produced between 50 and 200 metric
tons in 2006. S. 906 can help build capacity to store mercury
from all such industries.
HISTORY AND VOTES
On March 15, 2007, Senators Obama and Murkowski introduced
S. 906. Senators Boxer, Biden, and Salazar later cosponsored
the measure. The bill was referred to the Committee on
Environment and Public Works.
On July 31, 2008, the Committee on Environment and Public
Works held a business meeting and considered Chairman Boxer's
amendment in the nature of a substitute to S. 906. Senator
Alexander offered an amendment to prohibit the storage of
mercury at a certain facility in Tennessee, which failed by
voice vote. Senator Barrasso offered two amendments, one that
(as amended by a second degree amendment that was unanimously
accepted) clarified that the prohibition on conveyance, sale,
distribution, or transfer of elemental mercury by federal
agencies excludes coal. The other clarified that the
prohibition on conveyance, sale, distribution, or transfer of
elemental mercury does not prohibit the leasing of coal. The
Committee adopted both amendments by unanimous consent. The
Committee favorably adopted the Boxer Substitute amendment, as
amended by the two Barrasso amendments, by voice vote.
On May 13, 2008, the Committee held a legislative hearing
titled, ``Hearing on Mercury Legislation,'' which S. 906. On
May 16, 2007, the Subcommittee on Clean Air and Nuclear Safety
held an oversight hearing titled, ``State of Mercury Regulation
and Science.''
REGULATORY IMPACT STATEMENT & COST OF LEGISLATION
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee notes that the
Congressional Budget Office has found that S. 906 ``would
prohibit the export of elemental mercury from the United States
beginning in 2010. Based on information from the U.S.
Geological Survey, CBO estimates that the cost of that mandate
would fall below the annual threshold established in UMRA ($136
million in 2008, adjusted annually for inflation).''
MANDATES ASSESSMENT
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee notes that the Congressional
Budget Office has said that ``S. 906 contains no
intergovernmental mandates as defined in the Unfunded Mandates
Reform Act (UMRA) and would not affect the budgets of state,
local, or tribal governments. S. 906 would impose a private-
sector mandate as defined in UMRA. It would prohibit the export
of elemental mercury from the United States beginning in 2010.
Based on information from the U.S. Geological Survey, CBO
estimates that the cost of that mandate would fall below the
annual threshold established in UMRA ($136 million in 2008,
adjusted annually for inflation).''
Congressional Budget Office Estimate
S. 906--Mercury Export Ban Act of 2008
Summary: S. 906 would ban the export of elemental mercury,
prohibit federal agencies from selling or distributing mercury,
and direct the Department of Energy (DOE) to provide permanent
storage for domestic stocks of mercury under certain
conditions. Under this bill, firms would be allowed to begin
delivering mercury to DOE on January 1, 2010, and would be
required to pay a one-time fee sufficient to cover most of the
department's long-term costs of storing it. DOE would indemnify
those entities from legal actions resulting from any actual or
threatened release of mercury occurring after the materials are
delivered to the federal facility. In addition, DOE's mercury
storage operations would have to comply with various
performance standards, including the Solid Waste Disposal Act.
Finally, the bill would direct DOE and the Environmental
Protection Agency (EPA) to prepare reports on issues related to
the storage of domestic mercury and the disposition of global
supplies.
Implementing this bill would affect both discretionary
spending and direct spending. Assuming appropriation of the
necessary amounts, CBO estimates that DOE would spend $8
million over the 2009-2013 period and additional amounts
thereafter to provide for the permanent storage of commercially
generated mercury. CBO also estimates that enacting this bill
would reduce net direct spending by $8 million over the 2009-
2018 period by increasing offsetting receipts (an offset to
direct spending) from the one-time fee that would be paid by
firms transferring mercury to DOE. Enacting this legislation
would not affect revenues.
S. 906 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
S. 906 would impose a private-sector mandate as defined in
UMRA. It would prohibit the export of elemental mercury from
the United States beginning in 2010. Based on information from
the U.S. Geological Survey, CBO estimates that the cost of that
mandate would fall below the annual threshold established in
UMRA ($136 million in 2008, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 906 is shown in the following table. The
costs of this legislation fall within budget functions 270
(energy) and 300 (natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 0 2 2 3 2 9
Estimated Outlays............................................ 0 1 2 3 2 8
CHANGES IN DIRECT SPENDING\1\
Estimated Budget Authority................................... 0 0 * -2 -2 -4
Estimated Outlays............................................ 0 0 * -2 -2 -4
----------------------------------------------------------------------------------------------------------------
\1\CBO estimates that enacting this bill would result in a net increase in offsetting receipts of $8 million
over the 2009-2018 period.
Note: * = between zero and -$500,000.
Basis of estimate: For this estimate, CBO assumes that the
amounts necessary to implement the bill will be appropriated
each year. Estimated outlays reflect historical spending
patterns for similar activities.
S. 906 would require DOE to take custody of commercial
stocks of domestic mercury, subject to certain conditions.
According to reports from EPA-sponsored stakeholders' meetings
held in 2007, the cumulative volume of mercury eligible for DOE
storage would probably range between 7,500 metric tons and
10,000 metric tons. The amounts likely to be delivered over the
next several years are difficult to predict because they would
depend on investment decisions made by individual firms. Based
on information in those reports, CBO expects that the demand
for permanent storage would total about 1,700 metric tons over
the next 10 years.
For this estimate, CBO assumes that DOE could store an
additional 1,200 metric tons of mercury in its existing mercury
storage building in Oak Ridge, Tennessee, but would have to
build or renovate additional facilities to accommodate the
remainder. Thus, we expect that DOE would have to begin
developing new capacity within the next five years and would
start receiving materials at the new facility sometime after
2013. Any fees collected for mercury delivered to DOE's
existing storage facility would be deposited in the Treasury as
offsetting receipts, which would reduce direct spending. (By
contrast, fees paid for materials delivered to a new or
renovated facility would be contingent on appropriation
actions, and would be collected after 2013.)
Spending subject to appropriation
Based on information from DOE, EPA, and the stakeholders'
meetings, CBO estimates that implementing this bill would
require the appropriation of about $9 million over the 2009-
2013 period and additional sums over the life of the mercury
storage operation. CBO expects that DOE would have to spend
about $2 million to develop guidelines, reports, and analyses
required by the bill; another $2 million for building upgrades,
training, and staff needed to store the commercial mercury in a
manner consistent with the environmental and safety standards
in the bill; and roughly $5 million to plan and develop new
storage capacity. In addition, CBO estimates that EPA would
spend less than $500,000 a year to develop the guidelines and
reports required by the bill. Estimated spending for DOE and
EPA activities would total $8 million over the next five years.
DOE's costs could exceed the amounts included in this
estimate if state or federal regulatory agencies determined
that other upgrades to its Oak Ridge facility were needed to
comply with the new performance standards. For example,
replacing the department's 40-year-old mercury storage flasks
would cost about $21 million according to DOE. Whether such
costs would be incurred is unknown, and such potential costs
are not included in this estimate.
Direct spending
S. 906 would affect direct spending in two ways. First, any
fees collected for mercury delivered to the existing storage
facility at Oak Ridge would increase offsetting receipts (a
credit against direct spending). Second, the provisions
requiring DOE to indemnify those firms from certain
environmental actions could result in a net cost to the
government if the fees do not fully cover DOE's liabilities
under this legislation.
Proceeds from the one-time storage fees would depend on how
much DOE would charge. S. 906 would direct the department to
set fees sufficient to cover the long-term costs of permanently
storing the commercial stocks of mercury, excluding regulatory
compliance and land acquisition expenses. The legislation would
not limit the time for cost recovery (storage of this toxic
element would continue indefinitely), or allow for any other
adjustments to the cost calculation. CBO expects that the fees
necessary to cover the cost of permanent storage would likely
exceed the amount that industry would be willing to pay. For
this estimate, however, CBO assumes that DOE would accept
custody of the mercury that could be stored at its Oak Ridge
facility and would set the fee at about $3 per pound (or $6,600
per metric ton), which is at the high end of the range shown in
reports from the stakeholders' meetings but less than a fee
that would be needed to fully offset the agency's costs. At
that level, we estimate that the fee would generate offsetting
receipts of $8 million over the 2011-2018 period.
Based on guidelines issued by EPA and the Office of
Management and Budget, CBO assumes that DOE would set fees
sufficient to compensate the government for the environmental
liabilities associated with storing commercial mercury. Thus,
CBO estimates that the government's indemnification of owners
of mercury from environmental liability under this bill would
have no net impact on direct spending over the 2009-2018
period.
Estimated impact on state, local, and tribal governments:
S. 906 contains no intergovernmental mandates as defined in
UMRA and would not affect the budgets of state, local, or
tribal governments.
Estimated impact on the private sector: S. 906 would impose
a private-sector mandate as defined in UMRA. It would prohibit,
with some exceptions, the export of elemental mercury from the
United States beginning in 2010. The cost of the mandate to the
private sector would be the loss of net income to entities
currently involved in exporting mercury and, in some cases, the
cost to those exporters of storing the mercury that cannot
otherwise be sold. Information from the U.S. Geological Survey
indicates that the value of mercury exports was less than $10
million in 2006. Further, CBO expects that the cost of storage
would not be substantial. Consequently, CBO estimates that the
cost of the mandate would fall below the annual threshold
established in UMRA ($136 million in 2008, adjusted annually
for inflation).
Previous CBO estimate: On November 9, 2007, CBO transmitted
a cost estimate for H.R. 1534 as ordered reported by the House
Committee on Energy and Commerce on October 30, 2007. The two
bills are nearly identical, and the cost estimates for each
bill are the same although we would now expect a later
implementation date.
Estimate prepared by: Federal Costs: Kathleen Gramp (DOE
costs) and Susanne Mehlman (EPA costs); Impact on State, Local,
and Tribal Governments: Burke Doherty; Impact on the Private
Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
SENATOR ALEXANDER'S MINORITY VIEWS
Mercury is dangerous, especially to children and women of
child-bearing age. It's very likely that every part of
Tennessee is experiencing some mercury deposition from coal-
fired power plants. That's why I've joined in sponsoring
legislation putting stiff limits on mercury emissions in every
two-year Congress since I was elected in the Senate, beginning
with the Clean Air Planning Act of 2003 that I introduced with
Senator Carper. That's also why I support the goals of the
Mercury Market Minimization Act, which would address the
problem of mercury emitted into the environment overseas by
banning the export of elemental mercury from the United States.
However, I am unable to support S. 906 in its current form
unless it includes language that would prevent the nation's
mercury from being sent to the Y-12 National Security Complex
in Oak Ridge, Tennessee.
Although Y-12 isn't mentioned by name in S. 906, it's clear
to everyone who has studied this issue--including the
Congressional Budget Office (CBO)--that the bill as currently
written would send the nation's mercury there. There are
several reasons why this doesn't make sense.
First, it would be inconsistent with the current mission of
Y-12, which is to deal with highly enriched uranium weapons
parts and dismantling those parts. This is an important and
hazardous mission that Y-12 undertakes as a key part of
providing our nation's nuclear deterrent. The only reason that
DOE now stores some mercury at Y-12 in Oak Ridge is that this
mercury is left over from previous Cold War activities. It is
in the process of being removed.
Second, it would interfere with the consolidation of the Y-
12 campus. There is an ongoing plan to reduce the footprint of
that site by more than 60 percent. This plan will save the
taxpayers money, improve security, and allow Y-12 personnel to
concentrate on their primary missions relating to highly
enriched uranium and plutonium. Y-12 does not need additional
unrelated work like storing mercury at a time when it is trying
to downsize. The current mercury storage building, which the
CBO projected would be used to store the rest of the nation's
mercury, is inside the Y-12 protected area that Y-12 is trying
to reduce. Putting the rest of the nation's mercury there will
interfere with the footprint reduction effort. Also, protecting
a large secure complex like Y-12 is costly, and it makes no
sense to put more mercury--which does not require high
security--inside a high security area.
Third, Oak Ridge is still dealing with the cleanup from
mercury contamination of buildings, soil, and water leftover
from its activities during the Cold War. It is Oak Ridge's most
significant environmental problem, and we don't want to be
adding mercury at a time when Oak Ridge is still cleaning it
up. The current mercury cleanup effort at Y-12 will take
another 10 years and cost $100 million, and the government is
already having trouble funding it. During the Cold War, Poplar
Creek in Oak Ridge received hundreds of thousands of pounds of
mercury, and it all eventually made its way to Watts Bar
Reservoir. Today, Watts Bar sediment is so contaminated that we
have restrictions on disturbing it to build a boat dock. To
force the Department of Energy to reverse course at Y-12 and
take on additional mercury is counterproductive to the cleanup
effort that currently goes on there.
Finally, the Y-12 site is already doing its share of the
nation's job of storing mercury because it has 1,200 tons of
mercury--nearly one-fifth of the nation's stockpile--left over
from previous cold war lithium processing. Y-12 stopped using
mercury for lithium operations in about 1960, and ever since
has been storing it, disposing of some of it, and cleaning up
the rest of it (which is far from being done). So we will take
our share of the responsibility for dealing with the 1,200 tons
of mercury that are already there, left over from the Cold War
nuclear weapons operations. What we are saying is that there is
rumor of a railroad train that would have all of the nation's
mercury go to Y-12 at a time when we are still trying to clean
it up. We believe Oak Ridge is already doing its share, and the
rest of the country should share part of the burden.
There are other avenues for achieving the goals of S. 906
that don't require sending the nation's mercury to Y-12. In
2006, the Environmental Protection Agency (EPA) published its
``Roadmap for Mercury,'' a comprehensive approach to dealing
with mercury in our environment. As part of that effort, the
EPA convened a series of stakeholder meetings with industry and
academia in order to consider options for including non-federal
storage of mercury--which makes sense if one considers that
Europe has concluded that excess mercury should be stored or
disposed of by industry and not government. The EPA is not
finished with this work, and for us to legislate on this
subject before the EPA is finished (considering that the EPA
may have a different opinion from ours in the end) could end up
wasting an enormous amount of taxpayer money.
In addition, it's not necessary that all the mercury goes
to one place. Some estimates suggest that up to 100 tons of
excess mercury is produced annually each year from private gold
mining activities, most of which occur in Nevada and other
western states. It would make sense to consider storing that
mercury in-state rather than shipping it across the country to
Y-12, which is struggling to adequately store the mercury it
already has.
I continue to support the goals of the Mercury Market
Minimization Act, and am confident that the legislation can be
modified in a way that doesn't place an undue burden on Y-12
and the people of Oak Ridge, Tennessee--who are already doing
their fair share for the country when it comes to mercury
storage and preserving our nation's nuclear weapons deterrent.
Lamar Alexander.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
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TOXIC SUBSTANCES CONTROL ACT
* * * * * * *
SEC. 6. REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES.
(a) Scope of Regulation.--* * *
* * * * * * *
(e) Polychlorinated Biphenyls.--(1) Within six months after
the effective date of this Act the Administrator shall
promulgate rules to--
(A)* * *
* * * * * * *
(f) Mercury.--
(1) Prohibition on sale, distribution, or transfer of
elemental mercury by federal agencies.--Except as
provided in paragraph (2), effective beginning on the
date of enactment of this subsection, no Federal agency
shall convey, sell, or distribute to any other Federal
agency, any State or local government agency, or any
private individual or entity any elemental mercury
under the control or jurisdiction of the Federal
agency.
(2) Exceptions.--Paragraph (1) shall not apply to--
(A) a transfer between Federal agencies of
elemental mercury for the sole purpose of
facilitating storage of mercury to carry out
this Act; or
(B) a conveyance, sale, distribution, or
transfer of coal.
(3) Leases of federal coal.--Nothing in this
subsection prohibits the leasing of coal.
* * * * * * *
SEC. 12. EXPORTS.
(a) In General.--(1) Except as provided in paragraph (2)
and [subsection (b)]subsections (b) and (c), this Act (other
than section 8) shall not apply to any chemical substance,
mixture, or to an article containing a chemical substance or
mixture, if--
* * * * * * *
(c) Prohibition on Export of Elemental Mercury.--
(1) Prohibition.--Effective January 1, 2010, the
export of elemental mercury from the United States is
prohibited.
(2) Inapplicability of subsection (a).--Subsection
(a) shall not apply to this subsection.
(3) Report to congress on mercury compounds.--
(A) Report.--Not later than one year after
the date of enactment of the Mercury Export Ban
Act of 2008, the Administrator shall publish
and submit to Congress a report on mercuric
chloride, mercurous chloride or calomel,
mercuric oxide, and other mercury compounds, if
any, that may currently be used in significant
quantities in products or processes. Such
report shall include an analysis of--
(i) the sources and amounts of each
of the mercury compounds imported into
the United States or manufactured in
the United States annually;
(ii) the purposes for which each of
these compounds are used domestically,
the amount of these compounds currently
consumed annually for each purpose, and
the estimated amounts to be consumed
for each purpose in 2010 and beyond;
(iii) the sources and amounts of each
mercury compound exported from the
United States annually in each of the
last three years;
(iv) the potential for these
compounds to be processed into
elemental mercury after export from the
United States; and
(v) other relevant information that
Congress should consider in determining
whether to extend the export
prohibition to include one or more of
these mercury compounds.
(B) Procedure.--For the purpose of preparing
the report under this paragraph, the
Administrator may utilize the information
gathering authorities of this title, including
sections 10 and 11.
(4) Essential use exemption.--(A) Any person residing
in the United States may petition the Administrator for
an exemption from the prohibition in paragraph (1), and
the Administrator may grant by rule, after notice and
opportunity for comment, an exemption for a specified
use at an identified foreign facility if the
Administrator finds that--
(i) nonmercury alternatives for the specified
use are not available in the country where the
facility is located;
(ii) there is no other source of elemental
mercury available from domestic supplies (not
including new mercury mines) in the country
where the elemental mercury will be used;
(iii) the country where the elemental mercury
will be used certifies its support for the
exemption;
(iv) the export will be conducted in such a
manner as to ensure the elemental mercury will
be used at the identified facility as described
in the petition, and not otherwise diverted for
other uses for any reason;
(v) the elemental mercury will be used in a
manner that will protect human health and the
environment, taking into account local,
regional, and global human health and
environmental impacts;
(vi) the elemental mercury will be handled
and managed in a manner that will protect human
health and the environment, taking into account
local, regional, and global human health and
environmental impacts; and
(vii) the export of elemental mercury for the
specified use is consistent with international
obligations of the United States intended to
reduce global mercury supply, use, and
pollution.
(B) Each exemption issued by the Administrator
pursuant to this paragraph shall contain such terms and
conditions as are necessary to minimize the export of
elemental mercury and ensure that the conditions for
granting the exemption will be fully met, and shall
contain such other terms and conditions as the
Administrator may prescribe. No exemption granted
pursuant to this paragraph shall exceed three years in
duration and no such exemption shall exceed 10 metric
tons of elemental mercury.
(C) The Administrator may by order suspend or cancel
an exemption under this paragraph in the case of a
violation described in subparagraph (D).
(D) A violation of this subsection or the terms and
conditions of an exemption, or the submission of false
information in connection therewith, shall be
considered a prohibited act under section 15, and shall
be subject to penalties under section 16, injunctive
relief under section 17, and citizen suits under
section 20.
(5) Consistency with trade obligations.--Nothing in
this subsection affects, replaces, or amends prior law
relating to the need for consistency with international
trade obligations.
(6) Export of coal.--Nothing in this subsection shall
be construed to prohibit the export of coal.
* * * * * * *
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