Bush Mercury Rule Sparks Controversy, Litigation

By J.R. Pegg

WASHINGTON, DC, March 16, 2005 (ENS) – The Bush administration on Tuesday finalized regulations ordering coal-fired power plants to cut mercury pollution, but there is little chance the controversial emissions trading plan will enter effect any time soon.

The states of New Jersey and Pennsylvania have already announced that they will challenge the rule in court and other states, along with several environmental groups, are likely to follow suit.

The administration's mercury plan has drawn criticism from virtually all interested parties except the power plant industry and the U.S. Environmental Protection Agency's (EPA) development of the rule has been littered with controversy.

A report by the EPA Inspector General found that senior agency officials manipulated the development of the mercury rule to ease to favor the emissions trading plan and another report by the Government Accountability Office determined the agency's economic analysis of the mercury rule was seriously flawed.

"This rule is blatantly illegal," said Senator James Jeffords, a Vermont Independent. "Under this rule, hundreds of the oldest, dirtiest power plants won't even control mercury emissions for more than 20 years. That is what this rule gives us, more pollution for longer than the law allows."

EPA Assistant Administrator Jeff Holmstead lead Tuesday's defense of the mercury rule. (Photo courtesy White House)

But administration officials promoted the rule, released Tuesday to comply with a court order, as the first regulations in U.S. - and world - history to tackle mercury pollution from coal-fired power plants.

"The United States is the first and only country in the world to regulate mercury emissions from power plants," EPA Assistant Administrator Jeff Holmstead told reporters. "I believe we are on very solid legal ground and we are quite confident we are in a good position to defend the rule."

Mercury emissions from the nation's 1,300 power plants are currently unregulated - these facilities emit some 48 tons of mercury each year, accounting for about 40 percent of the nation's mercury pollution.

Exposure to mercury, usually through eating contaminated fish, can cause permanent 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.

Under the Bush plan, the EPA would set a set a cap in 2010 on mercury emissions at 38 tons and then tighten that cap to 15 tons in 2018. The cap applies to the power industry as a whole, rather than to individual power plants.

Utilities can choose to cut their own emissions or purchase credits from others who have made more drastic cuts.

From let: Senators James Jeffords, a Vermont Independent; Patrick Leahy, a Vermont Democrat; and Barbara Boxer, a California Democrat, are among some 44 senators on record with concerns about the administration's mercury rule. The trio called Tuesday for a Congressional hearing on the emissions trading plan. (Photo courtesy Office of Senator Jeffords)

"This rule enables the power sector to achieve these reductions more cost effectively and help ensure a steady flow of affordable electricity to U.S. consumers and businesses," said Holmstead, a former utility industry lawyer.

The cap and trade plan marks a shift in mercury emissions regulation - to enable the rule the EPA had to revise its December 2000 finding that it is "appropriate and necessary" to regulate mercury as a hazardous air pollutant.

That finding would require the agency to order the industry to use maximum achievable control technology (MACT), which would force individual plants to cut emissions.

In a presentation to an industry trade group in 2001, EPA officials said MACT could reduce mercury emissions 90 percent - to 5.5 million tons - four years after a rule is finalized.

Industry groups say such technologies are too expensive and not commercially viable - and may not even support the Bush rule.

"There is no mercury control technology that exists today that can achieve the reduction levels finalized in the Clean Air Mercury rule, let alone the 90 percent reductions advocated by some activists," said Scott Segal of the Electric Reliability Coordinating Council.

Critics note that the Bush plan does not guarantee even the 70 percent reduction by 2018 frequently touted by administration officials.

Administration officials say the mercury plan ensures a long future for coal, an abundant domestic energy source that supplies more than half the nation's electricity. (Photo courtesy New Mexico Solar Energy Association)

"The emission limits in this rule are not nearly stringent enough and do not even reflect the level of control capable by currently available technology," said Bill O'Sullivan, director of the Division of Air Quality in New Jersey's Department of Environmental Protection.

Holmstead acknowledged "it will be after 2020 when we get the 70 percent reduction," but said the plan will encourage "a huge amount of the reduction in the early years."

"EPA's plan is bad public policy - it is bad for public health and bad for Pennsylvania's economy," said Pennsylvania Environmental Protection Secretary Kathleen McGinty, who chaired the White House Council on Environmental Quality in the Clinton administration.

McGinty said Pennsylvania's coal industry will suffer because emissions standards are more stringent for bituminous coal found there and in other eastern states than they are for sub-bituminous coal mined in the West, creating an unfair marketplace that puts Pennsylvania at a competitive disadvantage.

The final mercury rule only reduces mercury emissions by 38 tons in 2010, or 21 percent, based on 1999 levels, McGinty said. "In certain states, increased emissions are projected. Therefore, the rule will do little to curb pollution blowing into Pennsylvania from upwind states, further tilting the playing field against facilities that already have invested to improve productivity and efficiency by upgrading their systems."

Holmstead defended the Bush plan within the context of global mercury pollution - the U.S. power plant industry is responsible for only about one percent of global mercury emissions.

"What matters most of all is exposure to mercury and most of that comes from seafood that has nothing to do with U.S. power plants," Holmstead said. "Until global mercury emissions can be reduced ... it will be for many years important for women of childbearing age to pay attention to [fish consumption] guidelines."

At least 44 states have mercury advisories for fish caught in their waters. (Photo by George Gentry courtesy U.S. Fish and Wildlife Service)

A report in December 2003 by the environmental research group Environmental Defense analyzed air pollution modeling data from the EPA and found that local sources commonly contribute 50 to 80 percent of mercury deposition at the nation's current hot spots.

"The Bush administration seems willing to play poison roulette with our families' lives and health," said Charles McPhedran, senior attorney at Citizens for Pennsylvania's Future.

"Pennsylvania's utilities are third in the nation in spewing toxic mercury into our air, streams and food; yet the federal government's plan would let that continue, as long as mercury is cleaned up somewhere else. Trading pollution credits makes no sense when dealing with such deadly stuff," said McPhedran. "Pennsylvanians need mercury cleanup now."

The Bush administration's alleged concern about the global mercury problem is hypocritical given its recent rejection of an international framework to develop a global treaty on mercury, said John Walke, director of the Clean Air Program at the Natural Resources Defense Council.

"Just last month the United States bullied the international community into doing nothing besides meaningless voluntary partnerships with industry," Walke said. "The Bush administration is speaking out of both sides of its mouth and making no commitment to solving the mercury problem and protecting public health."

The public interest law firm Earthjustice said the mercury rule fails to comply with Clean Air Act requirements that all toxic emissions from power plants, including mercury, must be reduced by the maximum amount achievable. Earthjustice attorney Jim Pew said, "To benefit polluters, EPA has broken the law."