Questions and Answers about the Mercury Export Ban Act of 2008
On this page:
Purpose and summary of the law
- What is the Mercury Export Ban Act intended to do?
- How does the ban on elemental mercury sales or other transfers (except transfers to facilitate storage) by federal agencies affect federal stockpiles?
- What are the principal provisions of MEBA?
- What is the intent of these questions and answers?
Mercury affected by the export and transfer bans
- MEBA covers elemental mercury but not mercury compounds. How is elemental mercury different from mercury compounds?
- Is the term "elemental mercury" limited by the definition of "chemical substance" under section 3(2) of TSCA?
- Can you provide examples of what is subject to the MEBA export ban and federal agency transfer ban?
- Do the MEBA bans cover mixtures and alloys containing mercury?
- Can you provide examples of what is not subject to the MEBA bans?
- Does the MEBA transfer ban prohibit federal agencies from recycling mercury-containing waste, for example discarded fluorescent light bulbs or contaminated soil from site cleanups?
- Could someone mix something into his or her mercury so it is less pure and could be exported?
- What criteria would be used to determine whether to grant an essential use exemption from the export ban?
- Can elemental mercury still be imported?
- Does the Act allow owners of elemental mercury, such as chlor-alkali plants that shut down or gold mines, to export the elemental mercury until the ban goes into effect in 2013?
Storage of mercury
- Will the DOE facility accept all elemental mercury that is covered by the export and transfer bans?
- To whom does the long-term storage provision apply – public organizations, private organizations, or both?
- How does MEBA affect the Resource Conservation and Recovery Act (RCRA) or the regulations under that act?
- Is elemental mercury destined for the DOE storage facility or facilities considered a hazardous waste?
- Since the elemental mercury going to the DOE facility is a hazardous waste, will it need to be manifested and otherwise managed as a hazardous waste during transport to DOE?
- After the export ban takes effect, will storage of elemental mercury be mandatory?
- After the export ban, if elemental mercury is not sent to the DOE facility or facilities, will it be considered a hazardous waste?
- Can chlor-alkali plants continue to store their mercury on-site?
- What incentive will elemental mercury holders have for paying the Department of Energy to store and manage elemental mercury instead of storing it themselves?
Purpose and summary of the law
The Mercury Export Ban Act (PDF) (8 pp, 166K) (MEBA or the Act; Public Law No. 110-414), which became law on October 14, 2008, is intended to reduce the availability of elemental mercury in domestic and international markets. By reducing the supply of elemental mercury in commerce, the Act aims to reduce the use of mercury in artisanal mining and for other commercial purposes globally. The Act does this by prohibiting the export of elemental mercury as of January 1, 2013, and requires the Department of Energy (DOE) to designate and operate a facility (or facilities) for the purpose of long-term management and storage of elemental mercury generated in the United States. The Act also prohibits the transfer of elemental mercury held by federal agencies as of the date of enactment in order to further control the flow of elemental mercury in the domestic market.
The largest holders of elemental mercury in the United States are the Department of Defense (4,900 tons) and the Department of Energy (1,300 tons). The policy of each department (prior to enactment of MEBA) was to store, rather than sell, its surplus elemental mercury. Consistent with these departmental policies, the Act codifies these policies thereby ensuring that the federal stockpiles of elemental mercury will remain in storage by prohibiting the sale, distribution, and transfer of elemental mercury held by federal agencies. (See S. Rep. No. 110-477 (PDF) (19 pp, 131K) at pages 9-10.)
MEBA amends the Toxic Substances Control Act (TSCA) to prohibit the export of elemental mercury from the United States effective January 1, 2013. MEBA also:
- Prohibits the sale, distribution, or transfer of elemental mercury under the control or jurisdiction of federal agencies to any other federal, state, or local government agency or to any private individual or entity, except for the transfer of elemental mercury to facilitate storage under MEBA, or the transfer or leasing of coal.
- Authorizes EPA to provide limited essential use exemptions by rule for the export of no more than 10 metric tons of elemental mercury under specified conditions.
- Requires EPA to publish a Report to Congress by October 14, 2009, on mercury compounds that may be used in significant quantities in products or processes. View the report (PDF) (123 pp, 619K).
- Requires DOE to publish guidance establishing procedures and standards for the receipt, management and long-term storage of elemental mercury by October 1, 2009. DOE issued an Interim Guidance document (PDF) (237 pp, 3.6MB) to fulfill this requirement. See also Notice of Availability, November 16, 2009, 74 FR 58952).
- Requires DOE to designate a facility or facilities for long-term management and storage of elemental mercury by January 1, 2010. DOE has issued a Draft Long-Term Management and Storage of Elemental Mercury Environmental Impact Statement (EIS) (PDF) (798 pp, 24.6 MB) which analyzes a number of candidate facilities. See also Notice of Availability, January 29, 2010, 75 FR 4801).
- Requires DOE to assess and collect fees for providing management and storage of elemental mercury. The amount of the fees will be made publicly available by October 1, 2012. Each fiscal year, DOE must submit to Congress a report on all of the costs incurred for the management and storage of elemental mercury during the previous fiscal year.
- Requires a designated facility or facilities to be operational by January 1, 2013. The facility is subject to RCRA subtitle C requirements (PDF) (163 pp, 420K), except for the storage prohibition contained in section 3004(j) of the Solid Waste Disposal Act (PDF) (163 pp, 420K).
- Requires the storage facility to accept custody, for the purpose of management and storage, of elemental mercury generated within the United States and delivered to the facility.
- Specifies that persons who deliver elemental mercury to the storage facility are indemnified against any liability related to the release or threatened release of mercury after delivery to the facility.
- Requires DOE to submit to Congress by July 1, 2014, the results of a study (conducted in consultation with EPA) on the impact of long-term storage of elemental mercury on mercury recycling, with proposals (if necessary) to mitigate any negative impacts of the long-term storage program.
- Requires EPA or an authorized state to issue a final decision on a RCRA permit application for a DOE facility by January 1, 2015.
- Requires EPA to send to Congress by January 1, 2017, a report on the global supply and trade of elemental mercury, including mercury from primary mining.
These questions and answers provide general guidance to EPA and to affected parties. While the requirements of MEBA itself are binding on EPA and affected parties, these questions and answers are only guidance and are not binding on EPA personnel, other federal agencies or the public. EPA may depart from the guidance where circumstances warrant and without prior notice.
Mercury affected by the export and transfer bans
Elemental mercury is an element that has not reacted with another substance. When mercury reacts with another substance, it forms a compound. Elemental mercury and mercury compounds have their own unique chemical properties, physical properties, and chemical structure. Some common mercury compounds are mercury chloride, mercury oxide, and methyl mercury. Many laboratory standards also contain mercury in the form of a mercury compound (e.g., mercury nitrate).
No. MEBA amended TSCA to add sections 6(f) and 12(c) with provisions that relate to "elemental mercury." MEBA did not amend the definitions section in TSCA and there is no explicit relationship between the terms "elemental mercury" and "chemical substance." Therefore, the term "elemental mercury" is not limited by the definition of "chemical substance" under TSCA. The definition of "chemical substance" under TSCA lists several exclusions such as pesticides, foods, drugs or medical devices. See TSCA section 3(2)(B). As "elemental mercury" is used in MEBA, it is not limited by these exclusions.
The findings set forth in MEBA and the legislative history both provide numerous examples of what Congress meant to be covered by the bans. For example, the findings section of MEBA describes quantities of elemental mercury that are exported from and imported to the United States and action proposed by the European Commission on the export of elemental mercury. Further, the Senate Report on the Act states that "elemental mercury can be generated through recycling products and waste recovery programs," S. Rep. No. 110-477 (2008) (PDF) (19 pp, 131K) (at page 10), and refers to the mercury that the Department of Defense and Department of Energy have already been storing. (Id. at page 9.) However, neither MEBA nor the legislative history specifies any purity requirement or limitation for what is covered by the bans.
Yes. EPA believes that the MEBA bans generally extend to mixtures and alloys that contain elemental mercury. (Please also see the examples discussed in the answers to "Can you provide examples of what is subject to the MEBA export ban and federal agency transfer ban?" and "Can you provide examples of what is not subject to the MEBA bans?".) Mercury in an alloy or mixture is not reacted with another element and retains its identity as mercury. While the federal agency transfer ban and the export ban apply to mixtures and alloys, the Department of Energy does not intend to store mixtures and alloys; DOE has indicated that they will accept elemental mercury with a purity of 99.5 percent or greater by volume.
As stated above, MEBA applies to elemental mercury, not mercury compounds. In addition, based on the intent of the legislation, and the Act's findings and legislative history, EPA does not believe the materials listed below, for example, generally fall within the scope of the export and federal agency transfer bans:
- products (consumer and non-consumer), including discarded products
- dental amalgam (pre-dosed capsule form)
- scrap metal and used electronics
- media (including groundwater, surface water, soils and sediment) and debris that are managed for implementing cleanup
- reference materials in which the mercury occurs as contamination in media (e.g., soil, sediment, water, sludge);
- industrial, commercial and remediation residuals
- byproducts of coal combustion.
Note, however, that EPA believes that any export or federal agency transfer of materials containing elemental mercury, including in the above examples, with the intent to recover the elemental mercury for resale or reuse would be banned. This is consistent with the purposes of MEBA.
In addition to the examples above, MEBA specifically excludes from the bans transfer and export of coal, which may contain elemental mercury.
No. EPA believes the primary purpose of the federal agency transfer ban is to ensure that federal agencies retain their stockpiles of excess elemental mercury. As discussed in the answer to the question "Can you provide examples of what is not subject to the MEBA bans?", EPA does not believe that the transfer ban applies to, for example, discarded products or media. Thus a federal agency's waste management practices to comply with RCRA regulations that require the recovery of elemental mercury from high concentration mercury-containing waste will not be affected. Further, under RCRA, once the discarded products or media are sent to a recycler, the mercury is no longer under the control or jurisdiction of the federal agency and thus the federal agency transfer ban does not apply. But, this recovered elemental mercury from such recycling would be subject to the export ban.
Because mixtures containing elemental mercury are also subject to the ban, EPA believes that mixing elemental mercury with another substance with the purpose of evading the ban would not be effective, since a subsequent export of the mixture would remain an export of elemental mercury and would violate the export ban.
Section 4(c)(4)(A) of the Act (PDF) (8 pp, 166K) provides seven specific findings EPA must make to grant an essential use exemption from the export ban. Requests for an essential use exemption would only be granted through notice-and-comment rulemaking. The exemption must contain terms and conditions that minimize export and ensure that conditions for granting the exemption are met. No exemption shall last longer than three years or exempt more than ten metric tons of mercury.
The Act does not address the importation of elemental mercury.
Yes. However, EPA encourages responsible stewardship of the elemental mercury that could involve arranging secure temporary storage, such as a RCRA-permitted facility with the capacity to store mercury on a short term basis, until the company can send it to DOE for long-term storage.
Storage of mercury
No. The Act states that DOE shall accept custody of elemental mercury generated within the United States. In addition, however, the Act authorizes DOE to establish terms and conditions for the long-term management and storage of elemental mercury. DOE has indicated that elemental mercury to be stored at the DOE facility or facilities must be of a purity of 99.5 percent or greater by volume (see DOE's Interim Guidance document (PDF) (237 pp, 3.6MB) and the draft mercury storage EIS (PDF) (798 pp, 24.6 MB). Therefore, elemental mercury of lower purity would need to be further refined before it could be stored at the DOE facility (or facilities), but export or federal agency transfer of such mercury is still prohibited.
If the elemental mercury has been generated within the United States, then any public or private organization or individual will be able to transfer elemental mercury to DOE for long-term storage within the parameters of the storage program, including payment of fees as described in section 5(b) of the Act (PDF) (8 pp, 166K).
MEBA does not affect RCRA or RCRA regulations except that elemental mercury stored at the DOE facility, or elemental mercury that is destined for the DOE facility and accumulated for 90 days or less, is not subject to the RCRA storage prohibition, 3004(j) of the Solid Waste Disposal Act ( 42 U.S.C. 6924(j)). (See MEBA Sec. 5(g)(2)) (PDF) (8pp, 166K).
Yes. EPA believes the elemental mercury sent to the DOE facility is discarded and thus constitutes a solid waste. Because the elemental mercury is a solid waste and is also classified as a hazardous waste under EPA's regulations, it is considered a hazardous waste under RCRA subtitle C (PDF) (163 pp, 420K). The decision to deliver elemental mercury into DOE storage is considered discard because a decision was made by the generator to place that mercury into indefinite storage and not to use it or sell it domestically.
Yes. If the decision is made to send the elemental mercury to a DOE facility, all RCRA requirements that apply to hazardous waste will have to be met, as well as the standards and procedures specified in the DOE Interim Guidance document (PDF) (237 pp, 3.6MB). (See the answer to the question "What are the principal provisions of MEBA?") In addition, mercury sent for treatment before transport to DOE would be subject to applicable RCRA transportation and treatment requirements (PDF) (163 pp, 420K).
No. Transfer to DOE's facility or facilities will be voluntary. Anyone who chooses to manage his own elemental mercury may do so, but he will be potentially responsible for any damage or injury it may cause.
Under RCRA regulations, elemental mercury that is being used or stored for reuse is not considered a waste. However, if elemental mercury were no longer to have a commodity value, it could be considered discarded and therefore a solid waste. (See 40 CFR 261.2)
Yes. The elemental mercury that chlor-alkali facilities store on-site remains a commercial chemical product and its storage is not barred by federal environmental statutes as long as it is not discarded. This is the case whether the facility continues to operate a mercury cell process, converts to a non-mercury process, or shuts down the plant. State or local restrictions may apply, however. After the establishment and operation of the DOE facility, mercury being stored at chlor-alkali plants can continue to be stored as a product. However, if storage continues over a long period of time, or if the supply of commodity-grade mercury exceeds domestic demand, EPA may assess on a case-by-case basis the legitimacy of a claim that elemental mercury storage does not constitute discard. View a full discussion (PDF) (5 pp, 305K).
Mercury is highly toxic and if it spills, leaks, volatilizes or is otherwise released to the air, water, or land, the owner may be held liable for injury or damage to human health and the environment. If someone owns elemental mercury and cannot sell it, transferring the storage and liability to DOE, even for a fee, may be a preferable option.
For questions about the mercury export ban, contact Sue Slotnick at (202) 566-1973 or firstname.lastname@example.org.
For questions about mercury storage, treatment, and permitting, contact Michael Svizzero at (703) 308-0046 or email@example.com.
For questions about mercury waste and mercury recycling, contact Greg Helms at firstname.lastname@example.org.