California Attorney General says emissions plan fails to adequately protect air, public health

Jun 29 2004

Attorney General Bill Lockyer, along with Attorneys General and regulators from 10 other states, today asked the Bush Administration to withdraw its plan to restrict mercury emissions from power plants, arguing the rules violate federal law and would not adequately protect the public from serious health risks associated with exposure to the toxic heavy metal.

"Exposure to mercury can cause severe health damage, particularly to pregnant women and young children," said Lockyer. "If implemented, these rules will protect the profits of polluters at the expense of the environment, people and public health."

Children can suffer from mental retardation, cerebral palsy, deafness or blindness if exposed to high levels of mercury, or if their mothers were exposed to high levels when pregnant. Low exposure can cause developmental and learning disabilities. In adults, mercury can affect fertility and blood pressure, and cause loss of memory and vision.

The most prominent sources of mercury emissions are the nation's 1,100 coal-fired power plants, which produce about 48 tons of mercury every year. While California has no such facilities, mercury emissions from coal-burning plants in the Midwest ride the winds to California and eventually enter lakes, streams and the Pacific Ocean. Mercury then enters fish and, ultimately, people who eat the fish. Because most large sources of mercury emissions lie outside California, the state must rely on effective federal regulation to reduce state residents' exposure to the hazardous substance.

Under California's landmark toxics control and consumer warning law, known as Proposition 65, mercury is listed as a substance known by the state to cause reproductive harm. Proposition 65 requires businesses to post "clear and reasonable" warnings to notify consumers when they are exposed to such substances. In 2003, Lockyer sued grocery and restaurant chains for failing to warn shoppers and diners about mercury exposure from fresh tuna, shark and swordfish. Earlier this month, he filed a similar complaint against canned tuna manufacturers. The cases are pending in San Francisco Superior Court.

Lockyer said the Bush Administration rules run counter to the goals of Proposition 65 and his enforcement actions. "At a time when California is moving to protect its people from harmful exposure to this environmental danger," he said, "the Bush Administration's proposed rules threaten to undermine our efforts and move us backward."

Under 1990 amendments to the Clean Air Act, Congress listed mercury as a hazardous air pollutant. The same amendments required emissions of such pollutants to be controlled as follows: new sources must have the best available technology; existing sources must use technology at least as effective as the equipment used by the lowest-emitting 12 percent of plants of the same type. Together, the emission control requirements are called Maximum Achievable Control Technology (MACT).

In January of this year, the U.S. Environmental Protection Agency (EPA) issued proposed rules to control mercury emissions in one of two, alternative ways. The first would place emission control requirements on various categories of coal-burning plants. The second would implement a "cap-and-trade" plan. This option would set an annual, nationwide emissions cap of 34 tons in 2010, reduced to 15 tons by 2018. But less-polluting plants could sell emission credits to higher-polluting plants, which would not have to take action to reduce their emissions. The proposal includes key language, even entire paragraphs, written by industry representatives.

In objections filed today with the EPA, the Attorneys General and regulators argue the rules violate the Clean Air Act's MACT requirement in two ways. The first option, they say, does not require facilities to use technology at least as effective as the lowest-emitting 12 percent of coal-burning power plants. Additionally, the comments contend the Clean Air Act does not authorize the cap-and-trade approach as a method to control emissions of hazardous air pollutants such as mercury. At bottom, the Attorneys General and regulators say, the proposed rules would insufficiently protect the public health by failing to adequately reduce mercury emissions. Other major arguments made by the Attorneys General and regulators in their objections include:

• A cap-and-trade program would do nothing to reduce emissions in mercury "hot spots" and, as a result, "could have a disproportionate effect on minority and low-income populations located near coal-fired power plants."
• The EPA acknowledged during the rule-making process that it must adhere to the MACT standard, that it had no authority to adopt a cap-and-trade program, and that it had to perform more statistical analysis.
• EPA should adhere to the strict MACT standard because current science clearly shows that mercury emissions from power plants have damaged oceans and waterways, contaminated fish and ultimately expose people to serious health risks. The rules fly in the face of current science, as well as the EPA's own findings about the serious danger posed by mercury.

The comments conclude by calling on the EPA to withdraw the current proposal and "expeditiously promulgate an appropriate plant-specific MACT standard ..." While calling for more study, EPA Administrator Michael O. Leavitt has thus far declined to withdraw the proposed rules.

In addition to Lockyer, the objections were signed by: the Attorneys General of Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Vermont and Wisconsin; the secretary of New Mexico's Environment Department; and the chief counsel of Pennsylvania's Environmental Protection Department.