Nine States Sue EPA Seeking Tougher Mercury Rule

by staff | Mar 31 '05

WASHINGTON, DC (ENS) — --> Attorneys General from nine states have filed a lawsuit challenging a new federal Environmental Protection Agency (EPA) rule that they allege fails to protect the public from harmful mercury emissions from coal-fired power plants, which they say pose a grave threat to the health of children.

The suit, filed Wednesday by New Jersey on behalf of the coalition, challenges an EPA rule that removes power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act.  EPA announced the rule on March 15, along with a second rule establishing a cap-and-trade system for regulating mercury emissions. The trading scheme will allow some plants to increase mercury emissions, creating hot spots of local and regional mercury deposition. Members of the coalition also plan to file suit challenging the cap-and-trade rule once it is published in the Federal Register. The lawsuit was filed in the U.S. Court of Appeals for the District of Columbia Circuit by the attorneys general of New Jersey, California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York and Vermont.

New Jersey Attorney General Peter Harvey filed the lawsuit on behalf of all nine states. (Photo courtesy NAAG)

New Jersey Attorney General Peter Harvey said, "We are dedicating our legal resources to fight EPA’s new rule, which fails to protect our children from toxic mercury emissions. It is an established medical fact that mercury causes neurological damage in young children, impairing their ability to learn and even to play. EPA’s emissions trading plan will allow some power plants to actually increase mercury emissions, creating hot spots of mercury deposition and threatening communities."

Emitted into the air from coal combustion, mercury is deposited on land and water. It enters the food chain and ultimately is consumed by humans, who are harmed by its action on the nervous system. Pregnant or nursing mothers and young children are most at risk.  "EPA’s rule has devastating implications for young children, who can suffer permanent brain and nervous system damage as a result of exposure to even low levels of mercury, which frequently occurs in utero," the attorneys general said. Mercury exposure can result in attention and language deficits, impaired memory, and impaired visual and motor functions.

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per year nationwide.  California Attorney General Bill Lockyer said, "These rules do much more than violate federal law. They ignore science, suppress evidence and make the health of women and children a lower priority than the financial health of industry. Our states and our people cannot afford to let them stand."   The Bush administration is proud of its new mercury regulations. Announcing the rules March 15, EPA Acting Administrator Steve Johnson said, ""This rule marks the first time the United States has regulated mercury emissions from power plants. In so doing, we become the first nation in the world to address this remaining source of mercury pollution."

EPA officials studied the health hazards posed by toxic emissions from power plants, including mercury, and determined in 2000, under the Clinton administration, that power plants must be regulated under Section 112 of the Clean Air Act, which requires that "maximum achievable control technology" (MACT) be used to control those emissions.   The rule that EPA published today improperly exempts power plants from regulation under Section 112, reversing EPA’s prior determination that the strictest controls are necessary to protect public health, the states allege.  Under the EPA’s cap-and-trade rule, power plants can elect, rather than reducing their own mercury emissions, to purchase emissions credits from other plants that reduce emissions below targeted levels.  The attorneys general say that cap-and-trade emission controls are sometimes appropriate for general air pollutants like sulfur dioxide and nitrogen oxides, but they are inappropriate for mercury because they can allow localized deposition of mercury to continue, perpetuating hot spots and hot regions that can impact the health of individual communities.

Connecticut Attorney General Richard Blumenthal said, "This rule defies common sense and the law, and deserves a quick judicial demise. We are suing immediately to stop it because mercury is a proven killer and crippler, and the new rule gives power plants a free pass to spew this deadly neurotoxin into our air and water. The Bush administration has once again demonstrated that it puts corporate profits over human health and the environment.  My office will work with other states to fight a federal flight of policy that threatens to sicken our citizens and despoil our environment."  

A strict MACT standard, as required by the Clean Air Act, would reduce mercury emissions to levels approximately three times lower than the cap established in the new EPA rule.  EPA’s trading rule will reduce mercury emissions from power plants from the current level of about 48 tons per year to 15 tons per year.  By contrast, MACT controls would reduce emissions at each facility by about 90 percent, reducing total mercury emissions from power plants to about five tons per year. Moreover, the new EPA rule extends the deadline for compliance from 2008 to 2018, with full reductions not expected until 2026 under the new rule.  Maine Attorney General G. Steven Rowe said, "This rule is carefully crafted to allow industry to avoid installing pollution control technology that is available today and that is essential to protect public health and the environment from the dangers of mercury. EPA's approach to this rulemaking raises very serious concerns about the willingness of the agency to do its job."

Massachusetts Attorney General Tom Reilly said, "This new emissions rule undercuts the Clean Air Act and allows power plants, which are the largest producers of mercury, to put profits before the public health. My Office has repeatedly asked the EPA for key documents about potentially more effective alternatives to this new trading program without success – I will not sit back and allow the EPA to continue to institute new rules that jeopardize the health of the people of Massachusetts and beyond."

New Hampshire Attorney General Kelly Ayotte said, "New Hampshire cannot wait for meaningful nationwide controls on mercury emissions from coal-fired power plants. Mercury is highly toxic and threatens our health and environment. EPA has ignored sound science, the Clean Air Act and New Hampshire's recommendations on setting strict federal controls for mercury. We have no choice but to seek reversal of this misguided rule."

New Mexico Attorney General Patricia A. Madrid said, "The EPA’s new rule favors certain special interests over the health and welfare of our children and future generations. It is shameful, but we will not let stand unchallenged an EPA rules that fails to control mercury emissions from coal-fired plants across the country."

New Hampshire Attorney General Kelly Ayotte has litigated complex civil, commercial and criminal defense cases. (Photo courtesy NAAG)

At least 40 percent of lakes in New Hampshire and Vermont contain fish mercury levels in excess of EPA's own standard. In New Jersey, there are mercury consumption advisories for at least one species of fish in almost every body of water in the state.  At the EPA, Johnson says mercury-contaminated fish is not that great of a risk because close to 80 percent of the fish Americans buy comes from overseas, "from other countries and from waters beyond our reach and control”.   The United States contributes just a small percentage of human-caused mercury emissions worldwide - roughly three percent, with U.S. utilities responsible for about one percent of that, he said

"Airborne mercury knows no boundaries; it is a global problem," Johnson said. "Until global mercury emissions can be reduced - and more importantly, until mercury concentrations in fish caught and sold globally are reduced - it is very important for women of child-bearing age to pay attention to the advisory issued by EPA and FDA, avoiding certain types of fish and limiting their consumption of other types of fish."

For more information about the EPA rule, go to: http://www.epa.gov/mercuryrule. For more information about mercury in fish, go to: http://www.epa.gov/waterscience/fishadvice/advice.html. For more information about FDA's fish advisory go to: http://www.cfsan.fda.gov/~frf/sea-mehg.html.

Bush Mercury Plan Rests on Flawed Analysis

by staff | Mar 09 '05

WASHINGTON, DC (ENS) — --> The U.S. Environmental Protection Agency’s economic analysis of its proposal to regulate mercury emissions from coal-fired power plants is seriously flawed and should be revised, the Government Accountability Office said Tuesday. Shortcomings in the analysis make it useless for comparing policy options for regulating mercury pollution, the nonpartisan investigative arm of the U.S. Congress concluded.  The EPA analysis presents a biased case for the Bush administration’s controversial plan to implement a mercury emissions trading plan, said the Government Accountability Office (GAO) report.  "Unless EPA conducts and documents further economic analysis, decision makers and the public may lack assurance that the agency has evaluated the economic trade offs of each option and taken the appropriate steps to identify which mercury control option would provide the greatest net benefits," the GAO said.   The report comes only a week before the agency is set to finalize the mercury rule under the terms of a court order and in the wake of recent report by the EPA’s Inspector General that found senior agency officials manipulated the development of the mercury rule in order to favor the emissions trading plan.  The nation’s 1,100 coal-fired power plants emit some 48 tons of mercury each year, accounting for about 40 percent of the nation's mercury pollution, and are the largest remaining unregulated source of mercury emissions.

Exposure to mercury, usually through eating contaminated fish, can cause permanent harm neurological damage in humans and reproductive harm in wildlife.

Young children whose brains are still developing, and women of childbearing age are most at risk from the toxic metal.   

In December 2003, the Bush administration offered two proposals – a cap and trade emissions trading plan and a regulation that would require power plants to install maximum available control technology (MACT).   Proposed MACT standards are supposed to reduce mercury emissions from coal-fired power plants to 34 tons nationwide by December 31, 2007. This would achieve a 29 percent reduction in mercury emissions, as compared with 2001 levels.

The cap and trade program would proceed in two phases, with the first phase achieving the proposed MACT control levels by 2010. The second phase would cap nationwide emissions of mercury at 15 tons by 2018.  It is no secret that the administration and the utility industry favor the emissions trading plan.  A cap and trade program does not require individual power plants to cut mercury emissions but instead compels the industry as a whole to cut the toxic emissions.

Proponents say it is more efficient and cheaper than forcing each plant to cut emissions at the same time, but the cap and trade plan is opposed by environmentalists, public health officials, state pollution control officers and some lawmakers.

Critics argue the Bush plan is too lenient and say a MACT standard is a more appropriate and effective form of regulation for mercury.  The Government Accountability Office report finds the EPA’s analysis failed to consistently analyze each option or provide a complete accounting of costs and benefits.  For example, the analysis of the cap and trade plan included benefits from the proposed Clean Air Interstate Rule – a separate regulation also announced in December 2003 and set to enter into effect this month.  That EPA analysis predicted annual net benefits of $55 to $68 billion, compared to predicted annual net benefits of only $13 billion from the MACT proposal.  

But the EPA's analysis of the MACT standard did not included the benefits of the Clean Air Interstate Rule, the Congressional investigators found.   “As a result, EPA’s estimates are not comparable and are of limited use for assessing economic trade-offs,” the GAO report said. The Congressional investigators also criticized the EPA for failing to fully estimate the human health benefits of mercury reductions and for not following principles of "full disclosure and transparency.”

The EPA’s written response to the report indicated “additional analyses” are being conducted and cited “time and resource constraints” for the different comparisons of the emissions trading and MACT proposals.  EPA spokeswoman Cynthia Bergman said the report unfairly characterized the “process as incomplete before the process has even finished.”   The rule is still under development, Bergman said, and will be the first “to require power plants to reduce their mercury emissions.”

No one argues the proposal is the first official attempt by the federal government to curb these emissions, but there is widespread disagreement about the approach the administration favors.  Environmentalists are expected to file suit to block the rule if the administration finalizes it, and there is growing pressure on the White House to scrap its mercury plan. "The current EPA proposals are not going far enough to address this pressing public health issue, putting millions of Americans - especially women and children - at risk of serious harm,” said Maine Senator Olympia Snowe, a Republican.   The Snowe and 28 other senators sent a letter Monday to EPA Acting Administrator Steven Johnson urging him to strengthen the mercury rule.

"This report and our letter demonstrate the very real and continuing concern that the Bush administration's mercury proposal was written for and by the big energy companies," said Senator James Jeffords, a Vermont Independent. “Everything we have seen and heard from this administration amounts to delaying enforcement of the Clean Air Act and ignoring the resulting public health damage.”   But American Electric Power, the nation's largest electricity generator, says if the MACT option is chosen, "it will be nearly impossible for the industry to meet the EPA's compliance deadline, regardless whether it is the end of 2007 or the end of 2008."   A number of utilities have warned that reliability issues could arise from plants being taken off line to have emission reduction technology retrofitted; or plants being prematurely retired without sufficient time to build replacement capacity.  "Reducing mercury emissions is a tremendous challenge inasmuch as there are no commercially available technologies that are specifically designed to capture mercury emissions from the wide range of coal-fired units and variety of coal types used in the industry," says American Electric Power (AEP. New technologies are being developed, but their reliability is still being evaluated in field studies, although AEP projects they should be ready in time for compliance with the second phase of the cap and trade program in 2018.

The GAO report comes as new evidence is published that mercury pollution from Midwest coal-fired power plants is contaminating ecosystems in New England.  Dr. Eric Miller, president of the Ecosystems Research Group in Vermont, coauthored the four year study, encompassing 21 peer reviewed papers. Appearing in the April 1 issue of the journal “Ecotoxicology,” it identifies nine New England hot spots where fish, birds, and mammals are contaminated with high levels of mercury.   Miller says his study illustrates that “atmospheric mercury deposition is much higher in rural areas of the New England than previously estimated by the U.S. EPA and other groups … and is linked to air arriving from areas with high mercury emissions."   Research reported by Miller found mercury contamination in the Bicknell’s thrush, a bird that inhabits forests high in the mountains far from potential aquatic sources of the toxic metal.   Metallic mercury and inorganic mercury compounds enter the air from mining ore deposits, burning coal and waste, and from manufacturing plants. It is deposited on soil and water where bacteria transform it into methylmercury, which then builds up in the tissues of fish. Larger and older fish tend to have the highest levels of mercury.   The findings of Miller's study demonstrate that “no ecosystem is sheltered from mercury,” said Felice Stadler, a policy specialist with the National Wildlife Federation, “and provides a compelling case for reducing mercury pollution today.”

“Every other industry in the United States is doing their part to reduce mercury pollution," Stadler said. "It is time to make power plants do the same.”