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111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-381
MERCURY POLLUTION REDUCTION ACT
December 16, 2009.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
Mr. Waxman, from the Committee on Energy and Commerce, submitted the
R E P O R T
[To accompany H.R. 2190]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2190) to amend the Toxic Substances Control Act
to phase out the use of mercury in the manufacture of chlorine
and caustic soda, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Legislative History.............................................. 4
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings and Recommendations................. 13
New Budget Authority, Entitlement Authority, and Tax Expenditures 13
Statement of General Performance Goals and Objectives............ 13
Constitutional Authority Statement............................... 13
Earmarks and Tax and Tariff Benefits............................. 13
Federal Advisory Committee Statement............................. 13
Applicability of Law to Legislative Branch....................... 13
Federal Mandates Statement....................................... 13
Committee Cost Estimate.......................................... 14
Congressional Budget Office Cost Estimate........................ 14
Section-by-Section Analysis of the Legislation................... 15
Explanation of Amendments........................................ 16
Changes in Existing Law Made by the Bill, as Reported............ 16
Dissenting Views................................................. 18
The amendment is as follows:
Strike all after the enacting clause and insert the
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mercury Pollution Reduction Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) mercury and mercury compounds are highly toxic to humans,
ecosystems, and wildlife;
(2) as many as 10 percent of women in the United States of
childbearing age have mercury in their bloodstreams at a level
that could pose risks to their unborn babies, and hundreds of
thousands of children born annually in the United States are at
risk of neurological problems relating to mercury exposure in
(3) the most significant source of mercury exposure to people
in the United States is ingestion of mercury-contaminated fish;
(4) the long-term solution to mercury pollution is to
minimize global mercury use and releases of mercury to
eventually achieve reduced contamination levels in the
environment, rather than reducing fish consumption, since
uncontaminated fish represents a critical and healthy source of
nutrition for people worldwide;
(5) mercury pollution is a transboundary pollutant that--
(A) is deposited locally, regionally, and globally;
(B) affects bodies of water near industrial areas,
such as the Great Lakes, as well as bodies of water in
remote areas, such as the Arctic Circle;
(6) of the approximately 30 plants in the United States that
produce chlorine, only 7 use the obsolete ``mercury cell''
chlor-alkali process, and 4 have not yet committed to phasing
out mercury use;
(7)(A) less than 5 percent of the total quantity of chlorine
and caustic soda produced in the United States comes from the
chlor-alkali plants described in paragraph (6) that use the
mercury cell chlor-alkali process;
(B) cost-effective alternatives are available and in use in
the remaining 95 percent of chlorine and caustic soda
(C) other countries, including Japan, have already banned the
mercury cell chlor-alkali process;
(8) the chlor-alkali industry acknowledges that--
(A) mercury can contaminate products manufactured at
mercury cell facilities; and
(B) the use of some of those products results in the
direct and indirect release of mercury;
(9) despite those quantities of mercury known to have been
used or to be in use, neither the chlor-alkali industry nor the
Environmental Protection Agency is able--
(A) to adequately account for the disposition of the
mercury used at those facilities; or
(B) to accurately estimate current mercury emissions;
(10) it is critically important that the United States work
aggressively toward the minimization of supply, demand, and
releases of mercury, both domestically and internationally.
SEC. 3. STATEMENT OF POLICY.
Congress declares that the United States should develop policies
and programs that will--
(1) reduce mercury use and emissions within the United
(2) reduce mercury releases from the reservoir of mercury
currently in use or circulation within the United States; and
(3) reduce exposures to mercury, particularly exposures of
women of childbearing age and young children.
SEC. 4. USE OF MERCURY IN CHLORINE AND CAUSTIC SODA MANUFACTURING.
(a) In General.--Title I of the Toxic Substances Control Act (15
U.S.C. 2601 et seq.) is amended by inserting after section 6 the
``SEC. 6A. USE OF MERCURY IN CHLORINE AND CAUSTIC SODA MANUFACTURING.
``(a) Definition of Chlor-alkali Facility.--In this section, the
term `chlor-alkali facility' means a facility used for the manufacture
of chlorine or caustic soda using a mercury cell process.
``(1) In general.--Except as otherwise provided in this
subsection, it shall be unlawful to manufacture chlorine or
caustic soda using mercury cells at any facility in the United
``(2) Notice.--The owner or operator of any existing chlor-
alkali facility shall notify the Administrator no later than
June 30, 2012, whether it will--
``(A) replace its chlor-alkali facility with a new
manufacturing facility that does not use mercury; or
``(B) cease operations.
``(3) Closure.--A chlor-alkali facility for which a closure
notice is filed under paragraph (2)(B) shall cease
manufacturing chlorine or caustic soda using mercury cells no
later than June 30, 2013.
``(4) Replacement.--A chlor-alkali facility for which a
replacement notice is filed under paragraph (2)(A) may continue
to manufacture chlorine or caustic soda using mercury cells
until all of the permitting, financing, engineering, and
construction of a non-mercury replacement facility is complete,
or June 30, 2015, whichever is earlier.
``(c) Export Ban.--Effective on the date of the enactment of this
section, the export of any elemental mercury or the sale of elemental
mercury for purposes of export, including compounds and mixtures
containing elemental mercury, by the owner or operator of a chlor-
alkali facility is prohibited.
``(d) Savings Provision.--Nothing in this section affects the
ability of the owner or operator of any chlor-alkali facility to store
elemental mercury in accordance with section 5(g)(2) of the Mercury
Export Ban Act of 2008 (42 U.S.C. 6939f).''.
(b) Conforming Amendments.--(1) The table of contents of the Toxic
Substances Control Act (15 U.S.C. 2601 note) is amended by inserting
after the item relating to section 6 the following:
Sec. 6A. Use of mercury in chlorine and caustic soda manufacturing.''.
(2) Paragraphs (1) and (2) of section 15 of such Act are each
amended by striking ``or 6'' and inserting ``, 6 or 6A''.
Purpose and Summary
H.R. 2190, the ``Mercury Pollution Reduction Act'', was
introduced on April 30, 2009, by Rep. Janice Schakowsky (D-IL).
H.R. 2190 is intended to eliminate a significant source of
mercury pollution by prohibiting the manufacture of chlorine or
caustic soda using mercury in the United States. In addition,
the bill prohibits the export of mercury and mercury compounds
by chlor-alkali facilities, effective immediately upon
Background and Need for Legislation
Mercury pollution is a threat to the environment and to
public health. It is a known neurotoxin that accumulates in the
body and can cause serious, permanent harm to human health,
especially to children. Mercury can be emitted from both
natural and man-made sources into the air, water or land,
resulting in contamination of the local, regional, and global
environment. EPA estimates that one-third of mercury emissions
from the United States stay within our nation's borders, with a
disparate amount deposited in the Northeast due to weather
patterns, while the balance enters the global ecosystem.\1\
Once in the environment, mercury can alter into a more toxic
form, methylmercury, which builds up in the fish that humans
\1\Environmental Protection Agency, Mercury: Human Exposure (online
at www.epa.gov/mercury/exposure.htm) (accessed Dec. 14, 2009).
One significant source of mercury emissions in the United
States is chlorine production, although mercury is not
necessary to the production of chlorine, and not all chlorine
plants use mercury technology. In fact, more than 95% of the
chlorine production capacity in the United States is now
mercury-free. Only four chlor-alkali plants in the United
States continue to use an outdated technology that releases
mercury in significant quantities into the communities in which
they operate, without any plans to modernize to the alternative
mercury-free technologies. All of the areas surrounding the
four facilities have fishing advisories warning of elevated
\2\Ohio Environmental Protection Agency, Ohio Sport Fish
Consumption Advisory--Ashtabula County (online at www.epa.state.oh.us/
dsw/fishadvisory/counties/Ashtabula.aspx) (accessed Dec. 14, 2009);
Tennessee Wildlife Resources Agency, Contaminants in Fish (online at
www.state.tn.us/twra/fish/contaminants.html) (accessed Dec. 14, 2009);
West Virginia Department of Health and Human Resources, Fish
Consumption Advisories Available for 2009 (online at www.wvdhhr.org/
fish/currrent.asp) (accessed Dec. 14, 2009); Georgia Department of
Natural Resources, Guidelines for Eating Fish from Georgia Waters
(2007) (online at www.gaepd.org/Files_PDF/gaenviron/fish_advisory/
Current law does not adequately address the use of mercury
in chlorine production. While the Environmental Protection
Agency (EPA) has taken steps since 2002 towards reducing
mercury emissions from chlor-alkali plants under the Clean Air
Act,\3\ these facilities continue to emit significant amounts
of mercury each year despite the availability of safer,
\3\Environmental Protection Agency, Rule and Implementation
Information for National Emission Standards for Hazardous Air
Pollutants: Mercury Emissions From Mercury Cell Chlor-Alkali Plants
(online at www.epa.gov/ttn/atw/hgcellcl/hgcellclpg.html) (accessed Dec.
There are significant costs associated with modernization
of these facilities, estimated in an internal EPA memorandum to
be on average $84 million per facility.\4\ This memorandum,
however, goes on to state that ``the conversion, once
completed, would have many benefits, including less energy
demand and fewer procedures that are required to support the
purchase and handling of mercury, a hazardous substance.''
\4\Memorandum from Donna Lee Jones, PhD, EPA/OAQPS/SPDD/MMG;
Heather P. Brown, P.E., and Phil Norwood, EC/R Incorporated to Project
File--Mercury Chlor-Alkali NESHAP, Revised Conversion Costs and
Baseline Emissions--Conversion from Mercury Cell Chlor-Alkali to
Membrane Cell Technology (Sept. 15, 2009).
The Mercury Pollution Reduction Act originally was
introduced as H.R. 5580, the Missing Mercury in Manufacturing
Monitoring and Mitigation Act, in the 110th Congress. That bill
was introduced by Rep. Janice Schakowsky, for herself and Reps.
Henry Waxman (D-CA), Keith Ellison (D-MN), and Mazie K. Hirono
On April 30, 2009, Rep. Schakowsky, for herself and Reps.
Howard L. Berman (D-CA), Earl Blumenauer (D-OR), Russ Carnahan
(D-MO), Rosa L. DeLauro (D-CT), Keith Ellison (D-MN), Sam Farr
(D-CA), Raul M. Grijalva (D-AZ), Phil Hare (D-IL), Mazie K.
Hirono (D-HI), Barbara Lee (D-CA), James P. Moran (D-VA), Grace
F. Napolitano (D-CA), Eleanor Holmes Norton (D-DC), Frank
Pallone, Jr. (D-NJ), David E. Price (D-NC), Joe Sestak (D-PA),
Diane E. Watson (D-CA), and Lynn C. Woolsey (D-CA),
reintroduced the bill as the ``Mercury Pollution Reduction
Act'' in the 111th Congress. The bill was referred to the
Subcommittee on Commerce, Trade, and Consumer Protection on May
On May 12, 2009, the Subcommittee on Commerce, Trade, and
Consumer Protection held a legislative hearing on H.R. 2190.
Testimony was heard by witnesses representing industry as well
as public health and academic organizations.
On June 3, 2009, the Subcommittee met in open markup
session to consider H.R. 2190. An amendment in the nature of a
substitute, offered as a manager's amendment by Subcommittee
Chairman Bobby L. Rush, made several changes to the bill as
introduced. The manager's amendment provided a legal mechanism
for the affected facilities to store mercury between the date
of enactment and the date on which a permanent storage facility
becomes available, which is currently scheduled for January
2013. It also deleted reporting and inventory requirements seen
as redundant with current obligations. The Subcommittee
subsequently favorably forwarded H.R. 2190 to the full
Committee, amended, by a rollcall vote of 16 yeas to 10 nays.
The Committee on Energy and Commerce met in open markup
session on October 21, 2009, to consider H.R. 2190. An
amendment offered by Rep. Charlie Melancon (D-LA) to modify the
process and deadlines for transition was approved by a voice
vote. The Committee subsequently ordered H.R. 2190 reported to
the House, amended, by a rollcall vote of 29 yeas and 14 nays.
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments and motions
thereto. The Committee agreed to a motion by Mr. Waxman to
order H.R. 2190 favorably reported to the House, amended, by a
record vote of 29 yeas and 14 nays. The following is the
recorded votes taken during Committee consideration, including
the names of those Members voting for and against:
Committee Oversight Findings and Recommendations
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the oversight findings and recommendations of the Committee are
reflected in the descriptive portions of this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives, the Committee finds that H.R. 2190
would result in no new budget authority, entitlement authority,
or tax expenditures or revenues.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the performance goals and
objectives of the Committee are reflected in the descriptive
portions of this report.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 2190. Article I, section 8, clauses 3 and 18
of the Constitution of the United States grants the Congress
the power to enact this law.
Earmarks and Tax and Tariff Benefits
H.R. 2190 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
Federal Advisory Committee Statement
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., section 5(b).
Applicability of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to terms and conditions of
employment or access to public services and accommodations.
H.R. 2190 does not relate to employment or access to public
services and accommodations in the legislative branch.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement on
whether the provisions of the report include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office included herein.
Committee Cost Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2190. Clause 3(d)(3)(B) of that rule provides, however,
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for H.R. 2190 from the
Director of the Congressional Budget Office:
October 30, 2009.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2190, the Mercury
Pollution Reduction Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Douglas W. Elmendorf.
H.R. 2190--Mercury Pollution Reduction Act
H.R. 2190 would prohibit the manufacture of chlorine or
caustic soda using mercury in the United States. Manufacturers
would have until June 30, 2012, to notify the Environmental
Protection Agency (EPA) whether they intend to replace their
manufacturing processes with mercury-free processes or cease
manufacturing. This legislation also would prohibit the export
from the United States of any mixtures containing mercury,
effective immediately upon enactment.
Because only a few facilities in the United States
currently use manufacturing processes involving mercury, CBO
estimates that enacting this bill would not impose any
significant costs on EPA. Any additional administrative or
enforcement costs incurred would be subject to the availability
of appropriations. Enacting this legislation would not affect
direct spending or revenues.
H.R. 2190 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
By prohibiting the export or use of mercury by facilities
that manufacture chlorine or caustic soda, H.R. 2190 would
impose mandates as defined in UMRA. According to information
from EPA, four facilities in the United States use mercury for
those purposes. The bill would require those facilities to
cease operations by June 30, 2013, or convert to a
manufacturing process that does not use mercury by June 30,
2015. Based on information from the U.S. Geological Survey
Yearbook and because only a small number of facilities would be
affected, CBO estimates that the cost of prohibiting exports
would be minimal. Using information from EPA and industry
sources, CBO estimates that, whichever method the facilities
use to comply with the prohibition on using mercury in the
manufacturing process, the direct cost of the mandates would be
substantial. However, CBO estimates that the costs probably
would fall below the annual threshold established in UMRA ($139
million in 2009, adjusted annually for inflation).
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs) and Sam Wice (for the private-
sector impact). The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 provides that the short title of H.R. 2190 is the
``Mercury Pollution Reduction Act''.
Section 2. Findings
Section 2 describes findings by Congress regarding the
toxicity of and exposure to mercury and mercury compounds, and
the use of mercury in chlor-alkali facilities and the
availability of alternative mercury-free processes.
Section 3. Statement of policy
Section 3 describes a declaration of policy by Congress
that the United States should develop policies and programs
that will reduce mercury use and emissions.
Section 4. Use of mercury in chlorine and caustic soda manufacturing
Section 4 inserts a new section 6A, Use of Mercury in
Chlorine and Caustic Soda Manufacturing, within Title I of the
Toxic Substances Control Act (15 U.S.C. 2601 et seq.).
New section 6A(a) defines ``chlor-alkali facility'' to mean
a facility used for the manufacture of chlorine or caustic soda
using a mercury cell process.
New section 6A(b)(1) prohibits the manufacturing of
chlorine or caustic soda using mercury cells at any facility in
the United States.
New section 6A(b)(2) directs the owner or operator of a
chlor-alkali facility to notify the Administrator of EPA by
June 30, 2012, whether it will (A) modernize to a process that
does not use mercury, or (B) cease operations. This will allow
sufficient time for the facilities to conduct the economic and
physical planning necessary prior to making a determination.
New section 6A(b)(3) requires facilities that notify the
Administrator of their decision to close shall do so no later
than June 30, 2013.
New section 6A(b)(4) requires facilities that notify the
Administrator of their decision to modernize to do so no later
than June 30, 2015. This provides the facilities three years to
complete the modernization process after notifying the
Administrator. To date, no facility that has modernized has
taken longer than 2 years and 10 months to complete the
New section 6(A)(c) prohibits the export or sale for
purposes of export of any elemental mercury, including mercury
compounds or mixtures containing elemental mercury, from any
chlor-alkali facility, effective on the date of enactment.
New section 6(A)(d) provides for the owner or operator to
store elemental mercury in accordance with the Mercury Export
Ban Act of 2008 (42 U.S.C. 6939f).
Explanation of Amendments
The Committee adopted an amendment offered by Rep. Melancon
striking subsection (b) of new section 6A that would prohibit
mercury cell production at any chlor-alkali plant 24 months
after the date of enactment, and inserting a new subsection (b)
that requires the owner or operator of a chlor-alkali facility
to notify the Administrator of EPA of its decision to modernize
or close by June 30, 2012, and to follow through with closure
by June 30, 2013, or with modernization by June 30, 2015. This
amendment provides the companies with sufficient time, until
June 30, 2012, to make this decision to modernize or close. All
3 affected companies have indicated that they could modernize
within 3 years, as provided by this amendment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, 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):
TOXIC SUBSTANCES CONTROL ACT
TITLE I--CONTROL OF TOXIC SUBSTANCES
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
This Act may be cited as the ``Toxic Substances Control Act''.
TABLE OF CONTENTS
TITLE I--CONTROL OF TOXIC SUBSTANCES
* * * * * * *
Sec. 6A. Use of mercury in chlorine and caustic soda manufacturing.
* * * * * * *
SEC. 6A. USE OF MERCURY IN CHLORINE AND CAUSTIC SODA MANUFACTURING.
(a) Definition of Chlor-Alkali Facility.--In this section,
the term ``chlor-alkali facility'' means a facility used for
the manufacture of chlorine or caustic soda using a mercury
(1) In general.--Except as otherwise provided in this
subsection, it shall be unlawful to manufacture
chlorine or caustic soda using mercury cells at any
facility in the United States.
(2) Notice.--The owner or operator of any existing
chlor-alkali facility shall notify the Administrator no
later than June 30, 2012, whether it will--
(A) replace its chlor-alkali facility with a
new manufacturing facility that does not use
(B) cease operations.
(3) Closure.--A chlor-alkali facility for which a
closure notice is filed under paragraph (2)(B) shall
cease manufacturing chlorine or caustic soda using
mercury cells no later than June 30, 2013.
(4) Replacement.--A chlor-alkali facility for which a
replacement notice is filed under paragraph (2)(A) may
continue to manufacture chlorine or caustic soda using
mercury cells until all of the permitting, financing,
engineering, and construction of a non-mercury
replacement facility is complete, or June 30, 2015,
whichever is earlier.
(c) Export Ban.--Effective on the date of the enactment of
this section, the export of any elemental mercury or the sale
of elemental mercury for purposes of export, including
compounds and mixtures containing elemental mercury, by the
owner or operator of a chlor-alkali facility is prohibited.
(d) Savings Provision.--Nothing in this section affects the
ability of the owner or operator of any chlor-alkali facility
to store elemental mercury in accordance with section 5(g)(2)
of the Mercury Export Ban Act of 2008 (42 U.S.C. 6939f).
* * * * * * *
SEC. 15. PROHIBITED ACTS.
It shall be unlawful for any person to--
(1) fail or refuse to comply with (A) any rule
promulgated or order issued under section 4, (B) any
requirement prescribed by section 5 [or 6], 6 or 6A,
(C) any rule promulgated or order issued under section
5 or 6, or (D) any requirement of title II or any rule
promulgated or order issued under title II;
(2) use for commercial purposes a chemical substance
or mixture which such person knew or had reason to know
was manufactured, processed, or distributed in commerce
in violation of section 5 or 6, a rule or order under
section 5 [or 6], 6 or 6A, or an order issued in action
brought under section 5 or 7;
* * * * * * *
We, the undersigned Members of the Committee on Energy and
Commerce, oppose the passage of H.R. 2190 and submit the
following comments to express our significant concerns with
We believe all Members want to protect public health and
shield Americans from the risks posed by unhealthy exposures to
mercury. Yet, while this is both the stated policy goal and the
short title of H.R. 2190, we believe this legislation will not
achieve that objective, nor does it represent good public
policy. To the contrary, this bill has major manufacturing
policy implications, ensuring severe economic and employment
consequences for the U.S. companies and workers targeted by the
bill. We believe, moreover, that given the current economy and
employment conditions in the United States, Congress should not
be passing misidentified environmental legislation that will
effectively shut down U.S. manufacturers and displace U.S.
Mercury is a naturally-occurring element found in air,
water and soil. Humans cannot create or destroy mercury. Pure
mercury is a liquid metal that volatizes readily. Mercury in
the air eventually settles into water or onto land where it can
be washed into water. Once deposited, certain microorganisms
can change it into methylmercury, a potent neurotoxin which
builds up in fish, shellfish and animals that eat fish. Fish
and shellfish are the main sources of methylmercury exposure to
humans. Methylmercury builds up more in some types of fish and
shellfish than others. According to the U.S. Geological Survey,
``consumption of ocean fish and shellfish account for over 90
percent of human methylmercury exposure in the United States,
and tuna harvested in the Pacific Ocean account for 40 percent
of this total exposure.''
Notwithstanding the view expressed by some Committee
leaders that mercury deposition is solely a local issue,
mercury deposition in a given area depends on mercury emitted
from local, regional, national, and international sources. The
U.S. Environmental Protection Agency (EPA) has estimated, based
on an advanced, state-of-the-science modeling assessment of
atmospheric fate, transport, and deposition of mercury, that 83
percent of the mercury deposited in the United States
originates from international sources. The remaining 17 percent
comes from U.S. and Canadian sources. Further, it is now
estimated that China is the leading contributor to atmospheric
While mercury exposure at high levels can harm the brain,
heart, kidneys, lungs, and immune system of people of all
ages--it has been demonstrated that high levels of
methylmercury in the bloodstream of unborn babies and young
children may harm the developing nervous system--according to
EPA's website, research shows that most people's fish
consumption does not cause a health concern. Further, where a
potential health concern is indicated, there are governmental
efforts in place to warn potentially vulnerable persons of
threats from consuming more than the recommended amounts of
seafood that may contain elevated amounts of mercury.
Notwithstanding other available remedies the federal
government has to mitigate the above mentioned risks, and
before available regulatory remedies have been exhausted, H.R.
2190 takes the position that an already heavily-regulated
process for manufacturing chlorine should be banned by statute
simply because: (1) there are only four plants affected; (2)
there are other replacement manufacturing methods that do not
use mercury; and (3) that this mercury cell process is too old
of a technology and needs to be replaced. Whereas Congress in
limited situations in the past has statutorily banned a
chemical substance--like asbestos--we are not aware of any
legislative precedent for banning an entire manufacturing
process. We find this notion and precedent particularly
As we understand the body of existing environmental law,
this bill is not necessary to address any deficiencies in
existing law. If there are health-threatening releases from one
of these plants, the mercury releases that this bill is trying
to address are already covered under the Clean Air Act and the
Clean Water Act. Specifically, sections 112(r)(9) and 303 of
the Clean Air Act and Section 1431 of the Safe Drinking Water
Act give EPA the authority to take whatever action is necessary
to prevent a real or potential threat of imminent and
substantial endangerment to public health or welfare, or the
environment that would be caused by a release of mercury. In
addition, section 504(a) of the Clean Water Act has similar
authorities and expands the scope to also include damage to
shellfish. Finally, section 113(c)(5) of the Clean Air Act and
Section 309(c)(3) of the Clean Water Act subject persons who
``knowingly'' release pollutants and place another person in
imminent danger of death or serious bodily injury to criminal
From a regulatory perspective, the four plants targeted by
the bill are regulated heavily by several federal environmental
and worker safety laws that address the treatment, handling and
storage of mercury and chlorine. These regulations flow from
laws that include: the Clean Air Act, the Clean Water Act, the
Occupational Health and Safety Act, Solid Waste Disposal Act,
Emergency Planning and Community Right to Know Act, Safe
Drinking Water Act, Hazardous Materials Transportation Act, and
the Chemical Facility Anti-Terrorism Standards Act. Most
importantly, the EPA has legal authority it could use under
Clean Air Act Section 112, which authorizes regulation of
hazardous air pollutants, to phase out this technology process.
While EPA has declined to phase out this specific manufacturing
practice in the past, the Agency is currently considering
further limits on fugitive mercury emissions from these plants.
In view of this, we consider the policy articulated in H.R.
2190 to be a grim warning to small manufacturers or those whose
businesses may be politically unfashionable. We are concerned
that the choice in this legislation to single out four plants,
and to require them to invest an average of $100 million to
convert their manufacturing processes or otherwise close their
facilities, may not be based on a desire to protect public
health from the most dangerous sources of mercury--which are
global, not local--but rather may be based on a political
calculation that this group could be targeted because it is
Noteworthy to us is the fact that chlorine manufacturers
who use mercury cell technology are not the largest emitters of
mercury into the air or water. Before making serious
investments to improve their emissions, pursuant to a Federal
mandate to make technology changes by 2006, 2005 EPA data
showed these plants ranked 9th overall in the U.S.--16 times
lower than the highest domestic emitter. Additionally, EPA's
National Emissions Inventory shows an 89 percent decrease in
mercury emissions from the U.S. chlor-alkali industry between
1990 and 2005. This means these four plants contribute
negligibly, if at all, to global atmospheric mercury levels.
In addition, the 2002 United Nations Environmental
Programme's Global Mercury Assessment states that although a
large part of the mercury consumption and releases remain in
less-developed nations, about three-fourths of the entire
global chlorine production capacity is situated in Western
Europe, North America and Northeast Asia, with a large part of
the mercury at work in the world's chlor-alkali plants in
Europe (currently 37 plants). Based on actual records of
easily-recoverable mercury from decommissioned chlorine
production facilities in the European Union (EU) and the United
States, it can be estimated roughly that about half of the
mercury inventories associated with chlor-alkali production in
the world are situated within the EU. Curiously, in response to
the increasing amount of mercury at chlor-alkali plants in
Europe, the EU's response has been to voluntarily phase out the
use of these plants by 2020, allowing a competitive advantage
to exist versus other developed nations who choose to ban this
practice. In view of the absence of more aggressive actions
from other nations to significantly or similarly curb their
mercury emissions, we believe no net global environmental gain
will be achieved under H.R. 2190 and its suggested public
health gains will go unrealized. Rather, we believe the
elimination of up to 1,000 or more U.S. jobs is likely to be
the most enduring result of H.R. 2190.
Further, several other sources of emissions far outstrip
these chlor-alkali plants, both now and in the future. EPA
estimates that 50-70 percent of current global anthropogenic
atmospheric emissions come from fuel combustion, and much of
this is from China, India, and other Asian countries. Coal
consumption in Asia, from less-regulated plants, is expected to
grow significantly over the next 20 years. This source of
mercury emissions may grow substantially if left unaddressed, a
fact reaffirmed this past spring by the U.S. Geological Survey
(USGS), resulting in a continued contribution to seafood
consumption due to the aforementioned concentration of
methylmercury exposure from seafood and shellfish harvested in
the Pacific Ocean.
With national unemployment at 10 percent, unemployment in
the manufacturing sector at 11.9 percent, and the unemployment
rate in the towns in which these plants are located at these
levels or higher, we are not persuaded by the claims of H.R.
2190 supporters that these companies will be able to save the
jobs of the workers at these plants. To the contrary,
executives from the affected plants have testified, as well as
expressly stated in a letter sent to our Committee, that
passage of H.R. 2190--either as introduced or as amended by the
Committee--would result in the closure of these four plants and
the unemployment of approximately 1,000 workers. These
companies have previously, unambiguously stated that their
future operations--and the employment of their workers--
depended on either a guarantee of Federal funds to make this
transition or more time to find financing and address the
business realities of conversion. H.R. 2190 provides neither
the funding nor the time that the companies have indicated
would be required to convert their facilities--assuming
financing can be obtained and the conversions would be cost-
Moreover, we believe Congress should be very cautious when
making assumptions about the financial ability of companies to
meet new, costly requirements at these plants. The cost-
effectiveness of implementing alternative production
technologies must be measured on a site-specific basis--these
plants are extremely capital intensive and costly to build,
especially for a large site. Current estimates suggest an
average conversion cost for one of these plants is $100
million, depending on its size. In addition, the current,
frozen status of the credit markets makes any serious effort to
convert to a non-mercury technology difficult to assess since
financing, especially in the short term, is elusive.
As it relates to these types of plants, a September 15,
2009, internal EPA memorandum for the Mercury Chlor-Alkali
National Emissions Standards for Hazards Air Pollutants program
contains a section entitled, ``Unquantifiable Cost Factors.''
The comments from this section highlight the challenges
associated with the conversion of these facilities, stating:
[F]rom a business perspective, there may be other
cost factors that could predominate or, at minimum,
contribute to the costs of conversion. The conversion
to nonmercury technology would be an extremely
disrupting activity in the life of a facility even
without the costs associated with the conversion.
There are some costs and/or financial impediments to
conversion that are unquantifiable and may have
prevented facilities from converting their mercury cell
facilities to nonmercury technology up to this point.
Some of these issues are as follows: availability of
capital and savings; ability to secure financing, which
is dependent upon the current profitability and credit
worthiness of the company; dynamics of the supply and
demand of either of the two co-products (chlorine and
caustic) that can cause cyclical and sharp price swings
and/or a fall in sales revenue or increases in
operating costs; and ability to structure the financing
debt to accept these market cycles, which adds time and
cost to the overall financing and loan.
Further, we note that in the last Congress our Committee
specifically addressed concerns about potential human exposures
to mercury and methylmercury by passing the Mercury Export Ban
Act of 2008 (MEBA). In the context of considering that bill,
our Committee was made well aware of the potential impacts of
such legislation on global economic competition and of the
mercury contributions of other countries to the global
environment and atmospheric transport. We are concerned that
this bill effectively renegotiates certain parts of MEBA just
for these four plants, and takes an arbitrary approach to these
We believe, finally, that there were certain factual errors
in, and other issues presented by, early sections of H.R. 2190,
but we do not address them here.
We appreciate the steps the Majority has taken to eliminate
some of the more troubling provisions of this bill--including
duplicative reporting and inventory requirements. Yet we still
find this bill unworkable, including the provision added at
full committee markup that forces the affected companies to
make their decisions about conversion or closure by June 30,
2012, and, if they have decided to convert, to do so within
three years. While this is a longer amount of time on the front
end than H.R. 2190 as originally introduced provided, it is not
enough to garner our support given the testimony and record
before the Committee.
Though we remain concerned about actions by Congress to ban
a manufacturing process, especially in view of other options,
we acknowledge that the companies impacted were willing to live
with a legislative framework that gave them time to phase out
existing technology and meaningfully convert. We believe an
amendment we offered--giving the companies until 2015 to make a
decision, 2016 to close, and 2018 to convert--provided both the
certainty and the time that the affected companies sought. We
are disappointed that the Majority rejected this amendment.
Going forward we are concerned that this bill is not an
isolated attempt to address just mercury in manufacturing, but
rather a veiled attempt to decrease the production and use of
chlorine in the United States. We note that the Majority, in
the previous Congress and under the banner of public health
protection, also made attempts to hem in production of chlorine
by plants that used an asbestos diaphragm. We are not persuaded
that these efforts are merely coincidence.
We take seriously the need to protect the human health of
all Americans, both in this and future generations. We do,
however, reject H.R. 2190 and for all the reasons set forth
above will continue to fight H.R. 2190, as reported, and urge
the Congress to do the same.
Joseph R. Pitts.
Michael C. Burgess.
Ralph M. Hall.
Mary Bono Mack.