The Environmental Protection Agency recently issued two new mercury emissions rules. One retracts a prior EPA commitment to protect public health by requiring, within three years, "maximum achievable control technology" for toxic pollution from power plants (the "rescission rule"). The other is a scheme that purports to require significant reductions in power plant mercury emissions but in fact delays any regulation for 13 years (the "pollution trading rule"). It includes so many loopholes and such a delayed compliance timeframe that the promised reductions will not actually occur for more than two decades.
Administration officials say the cost of stronger safeguards would exceed the benefits to public health. But they failed to disclose that an EPA-funded, peer-reviewed Harvard University study concluded just the opposite.
The Harvard study estimated health benefits 100 times greater than EPA's figures, but according to the Washington Post, top EPA officials deleted any mention of the analysis from public documents. The Harvard analysis -- and a recent study by the Mount Sinai School of Medicine -- both show that more stringent limits on power plant mercury pollution are necessary to protect public health. (Read the article.)
Mercury pollution is a significant public health threat.
Mercury is a potent neurotoxin that damages fetuses' and children's developing nervous systems. At least 44 states have issued warnings urging residents to avoid or limit their consumption of mercury-laden fish caught in local waters, and the federal government has recommended that children and women of childbearing age eat no more than two meals of low-mercury fish per week and avoid eating certain fish altogether.
EPA itself estimates that every year hundreds of thousands of newborns are at risk for reduced intelligence and learning difficulties as a result of their mothers' fish consumption during pregnancy. The administration's new rules do very little to protect the more than 44 million Americans who eat fish caught in lakes, reservoirs, streams and rivers polluted with mercury from coal-burning power plants.
Emerging research also links mercury exposure with cardiovascular disease in adult men, and scientists continue to raise the red flag about the health threats posed by mercury exposure:
- Working independently, two respected teams of researchers -- one from the Mount Sinai School of Medicine in New York, the other from the Harvard Center for Risk Analysis working on behalf of the Northeast States for Coordinated Air Use Management ("Harvard/NESCAUM" -- the same study mentioned above) -- recently concluded that mercury pollution from coal-fired power plants results in significant productivity costs by impairing American children's brain development and lowering their IQs. (John D. Graham, a top official at the White House Office of Management and Budget, is the former director of the Harvard Center for Risk Analysis.)
- The Harvard/NESCAUM team also found that controlling power plant mercury pollution could save up to nearly $5 billion by reducing neurological and cardiovascular harm.
EPA has repeatedly acknowledged mercury's threat to health, but its rescission rule downplays the dangers of mercury pollution from power plants.
EPA has repeatedly referred to the "extreme danger" of mercury exposure. Moreover, the agency willingly provides hundreds of thousands of dollars -- and hours of its employees' time -- to cleanup efforts at schools and other facilities nationwide every time even a few drops of mercury are spilled. In its rescission rule, however, the agency found it neither appropriate nor necessary to regulate the 48 tons of mercury emitted each year by power plants.
The rescission rule contradicts a December 2000 EPA decision to impose strict limits on hazardous air pollution (including mercury) from power plants.
After completing an exhaustive report for Congress on the utility industry and its toxic pollution, EPA concluded in December 2000 that "mercury emissions from electric utility steam generating units are ... a threat to public health and the environment."
The agency then ordered power plant owners to install the "maximum achievable control technology" (MACT), just as all other major sources of hazardous pollutants must do. MACT standards are the most rigorous standards under the Clean Air Act and are reserved for hazardous pollution. They generally require existing sources to reduce their hazardous pollution at least as effectively as the best performing companies in the industry, and to do so within three years.
- MACT includes such technologies as activated carbon injection (ACI) that would enable power plants to achieve up to 90 percent reductions of their mercury emissions by 2008.
- Mercury emissions from other industries already are regulated using the Clean Air Act's rigorous MACT standards. Municipal and medical waste incinerators have been achieving 90 percent mercury reductions since the late 1990s using ACI technology.
- The feasibility of 90 percent reductions is illustrated by New Mexico's recent legal settlement with PNM, a New Mexico-based utility, under which the company agreed to use ACI or its equivalent to reduce its mercury pollution 75 percent to 85 percent by 2009.
Unwilling to comply with these requirements, power companies pushed the Bush administration to rescind the December 2000 finding, and the administration has now capitulated. The new rescission rule is an illegal attempt to justify the agency's refusal to apply MACT standards to any of the approximately 60 hazardous pollutants from power plants, including mercury. This leaves power plants alone among industrial toxic polluters as the only sources of toxic air pollution that need not meet rigorous MACT standards.
The pollution trading rule delays action for 13 years and imposes weak controls thereafter.
After reneging on its pledge to require MACT controls, EPA followed the rescission rule with a pollution trading rule that fails to meet the Clean Air Act's requirements and falls short of its own weak promises:
- EPA's pollution trading rule requires no mercury-specific pollution reductions until 2018, despite the availability of ACI and other cost-effective controls that would make it possible to achieve 90 percent reductions (from approximately 50 tons to 5 tons annually) by the 2008 MACT compliance date.
- Instead, the rule would allow power plants to emit as much as 38 tons per year until 2018 -- a mere 21 percent cut (which actually results entirely from tighter restrictions on other kinds of pollution).
- With such a weak initial obligation, companies are expected to reduce their emissions slightly more than required from 2010 to 2018. This will allow them to build up a cache of pollution "credits." Then, when 2018 arrives, polluters will cash in their banked credits rather than reducing their emissions to the level of the second cap (15 tons, or a 70 percent reduction). In fact, EPA has conceded that power plants will not have cut their mercury emissions to 15 tons even by 2026, and the agency does not know when emissions will fall to that level.1
The Bush administration wrongly claims that the pollution trading rule is the first federal rule to regulate mercury emissions from power plants.
Since EPA's December 2000 decision to regulate mercury emissions from power plants as a toxic pollutant using MACT, federal law has required states to issue permits for new power plants limiting their mercury emissions. Since then, states have been issuing permits that are far more protective of public health than EPA's new rule. (See the table below for examples in Iowa, Montana, Nebraska and Wisconsin.)
State laws and regulations cutting power plant mercury emissions already do more to protect people and wildlife than the EPA's trading rule. Nine states (CT, IL, IA, MA, MN, NH, NJ, NC and WI) have initiated rulemaking or passed legislation to deal with this public health menace because they, like most Americans, recognize that passing a legacy of mercury contamination on to future generations is irresponsible and unnecessary.
EPA's final rules follow the recommendations of power industry lobbyists and ignore the concerns of hundreds of thousands of citizens, congressional leaders, health experts and state and local air quality professionals.
When EPA originally proposed these rules in December 2003, its proposal lifted whole paragraphs from memos provided to the agency by Latham & Watkins, a law and lobbying firm that represents large coal-fired utilities among other clients. (See the comparison.) An enormous public outcry followed release of the proposal:
- Forty-five U.S. senators sent a letter to then-EPA Administrator Mike Leavitt, urging him "to take prompt and effective action to clean up mercury pollution from power plants," and noting that EPA's "current proposals ... fall far short of what the law requires, and
fail to protect the health of our children and our environment."
- One-hundred-eighty U.S. representatives also publicly opposed the proposal.
- The attorneys general of New Jersey, California, Connecticut, Maine, Massachusetts, New Hampshire, New York, Vermont and Wisconsin, the chief counsel of the Pennsylvania Department of Environmental Protection, and the New Mexico environment secretary condemned the rules. The association of state and local air protection officials and NESCAUM likewise denounced the proposal.
- More than 680,000 citizens sent comments to the EPA, the majority of them opposing the rules' leniency.
- The Children's Health Protection Advisory Committee (CHPAC) -- a Bush administration -- appointed panel of researchers, academics, health care providers, professionals, environmentalists, children's advocates, government employees and members of the public that advises EPA on regulations, research, and communication issues relevant to children-took issue with the proposed rules and urged Administrator Leavitt to significantly strengthen the proposal. CHPAC found that the proposal would "not sufficiently protect our nation's children."
- Nearly 500 national, state and local sportsmen organizations representing millions of anglers wrote the EPA, urging it to "consider the impact mercury has on our wildlife, economy, and children, and strengthen this proposal so it meets the intent and obligations of the Clean Air Act."
In response to negative reaction, EPA promised to go back to the drawing board and strengthen the rules, a promise the new rules fail to keep.
Embarrassed by the criticism of the 2003 proposal, Administrator Leavitt repeatedly and publicly promised that the agency would undertake further study to improve the rules. "I want it done well and I want it done right," Leavitt told the Los Angeles Times on March 17, 2004. "And I want it done in a way that will maximize the level of reductions based on the available technology."
- Despite these promises, a 2005 EPA inspector general report sharply criticized the final mercury rules, identifying numerous weaknesses. The report charged that the agency:
- 1) Performed an inadequate analysis of mercury emissions data from the top-performing plants;
- 2) Overstated the benefits of a pollution trading approach relative to a plant-by-plant MACT requirement;
- 3) Inadequately investigated the possibility that a pollution trading system would lead to the development of so-called "hot spots" -- locally high mercury concentrations -- in the vicinity of power plants; and
- 4) Insufficiently analyzed "regulatory alternative and children's health impacts." (Read the report.)
- Although CHPAC expressed its reservations about the proposal and requested additional modeling and health impact information on the mercury rules and their effects on vulnerable populations, the agency performed no additional analysis on children's health. The final rules did not incorporate CHPAC's specific recommendations.
EPA resorted to false advertising to promote its pollution trading rule.
The Bush administration deceptively claims that the pollution trading rule makes the United States "the first country in the world to regulate mercury emissions from utilities." As noted above, the rule does not directly reduce mercury pollution until 2018. This empty, rhetorical argument diverts attention away from the fact that the administration threw out the Clean Air Act's requirement that power plants make deep cuts in their mercury emissions over the next three years, substituting it with a scheme that delays any mercury reductions for at least 13 years. Indeed, for the United States to be first in any meaningful sense, other countries must refrain from regulating the toxin for the next 13 years.
EPA's justification for its lax rules -- that mercury is a "global problem" -- is disingenuous, misleading and irrelevant.
Throughout the rescission rule, EPA repeatedly downplays the significance of U.S. power plant mercury pollution, emphasizing the global nature of the problem and the large number of other sources of the neurotoxin.
- Stressing global mercury sources ignores the fact that much mercury pollution falls to earth relatively close to its source. As a result, in some areas of the United States, as much as 80 percent of the mercury pollution derives from nearby industries. Nationwide, EPA and industry scientists have previously asserted that U.S. industries are responsible for about 60 percent of mercury deposition. (For more information about the main U.S. sources of mercury pollution, click here.)
- Studies have shown that cutting local mercury emissions leads to lower mercury levels in fish and wildlife living nearby. For example, reductions in mercury air emissions in southeastern New Hampshire (primarily due to reductions in mercury pollution from waste incinerators in New Hampshire and Massachusetts) resulted in a 30 percent decline in mercury in loons in just three years. Similar reductions in mercury air emissions in south Florida cut mercury levels in Everglades fish and wildlife by approximately 80 percent in less than 15 years. Meanwhile, in Wisconsin, a 10 percent a year decrease in mercury deposition resulted in a 5 percent per year decline in mercury levels in yellow perch, amounting to a 30 percent drop over six years.
- The Bush administration's repeated comments about the global nature of the mercury problem are especially hypocritical in light of its aggressive opposition to global action on mercury. In particular, at a late February United Nations Environmental Program conference in Nairobi, the Bush administration blocked concrete international initiatives to limit mercury production, trade and pollution in favor of relying on ineffectual voluntary partnerships with industry. (For more information, click here.)
- Finally, in the past, the United States has led the international community on environmental issues. For example, other nations followed U.S. leadership after EPA removed lead from gasoline. The United States has the opportunity, obligation and technological ingenuity to lead again by taking responsibility for its own mercury pollution.
Numerous states and state organizations already have opposed the new rules.
Those that have already voiced opposition to the rescission and pollution trading rules include:
- The Environmental Council of the States, the association of leaders of the nation's state environmental agencies (see the press release);
- The Association of Local Air Pollution Control Officials and its sister group, the State and Territorial Air Pollution Program Administrators (see the letter);
- Connecticut (see the press release);
- New Jersey (see the press release);
- New York (see article);
- Pennsylvania (see article).
1. EPA's own modeling bears this out. In 2020, for instance, EPA predicts emissions will be approximately 24 tons, only a 50 percent reduction. (See http://www.epa.gov/mercuryrule/pdfs/ camr_final_preamble.pdf, page 73.)