Eleven states oppose mercury emissions proposal

Attorneys General and top environmental officials from eleven states joined today in formally opposing a U.S. Environmental Protection Agency proposal that would allow coal-fired power plants to escape Clean Air Act mandates that require them to reduce mercury emissions that threaten public health – particularly the health of children and pregnant women.

The states filed joint comments in response to EPA's proposal that mercury emissions from coal-fired power plants be controlled under a trading scheme that would allow many plants to avoid installing pollution controls. The states criticize the proposal as illegal under the Clean Air Act and unsupported by scientific evidence. In particular, the states assert that the proposal would fail to address hot spots of local and regional mercury deposition around power plants that would not be required to install pollution controls. Through mercury deposition, mercury enters the food chain and ultimately is consumed by humans, resulting in neurological and other health effects.

The comments outline the legal deficiencies of EPA's proposal and the devastating implications for young children, who can suffer permanent neurological damage as a result of mercury exposure, which frequently occurs in utero. Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per year nationwide.

The comments were filed by the Attorneys General of New Jersey, California, Connecticut, Maine, Massachusetts, New Hampshire, New York, Vermont and Wisconsin, as well as the Environment Secretary of New Mexico and Chief Counsel Mike Bedrin on behalf of the Pennsylvania Environmental Secretary. New Jersey coordinated the drafting of the coalition comments.

New Jersey Attorney General Peter C. Harvey said: "Mercury has been linked to neurological disorders and is especially dangerous for young children and pregnant women. EPA's plan would allow power plants to choose to purchase emissions credits rather than reducing their own mercury emissions. An issue that is so critical to the health of our citizens in general and children in particular should not turn in each instance on the financial self-interest of the power company."

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

Connecticut Attorney General Richard Blumenthal said: "This action makes a mockery of environmental justice and the EPA's mandate to protect public health. The EPA's attempt to reverse its own mercury emission rules underscores how the power industry has hijacked the agency."

Maine Attorney General G. Steven Rowe said: "Mercury emissions from power plants to our south and west are a major source of deposition in Maine, and we desperately need strong federal regulation to address this problem. Despite the need for strict federal standards to protect public health and the environment, and the fact that such standards are legally required by the Clean Air Act, EPA fails to deliver in this proposal."

Massachusetts Attorney General Tom Reilly said: "EPA cannot be allowed to enact regulations that undermine the Clean Air Act and put the interest of power plant operators before the health of our citizens. Mercury is a highly toxic substance that poses a significant health threat to children and pregnant women --- We must do everything we can to hold the EPA accountable and demand federal policy that protects the public health and our environment now and for future generations."

New Hampshire Acting Attorney General Kelly A. Ayotte said: "Mercury emissions from coal-fired power plants are accumulating in New Hampshire's lakes and streams, forcing health advisories on fish consumption and threatening our children's health. EPA's proposed method for controlling these toxic emissions ignores clean air laws and can be characterized as ‘too little, too late.' As chief legal enforcement officer for this state, I will not stand by while the federal government, once again, sidesteps the mandate for meaningful controls on toxic emissions from these power plants, most of which are located upwind from New Hampshire."

New Mexico Environment Secretary Ron Curry said: "As the only Rocky Mountain state involved in this coalition, I am proud that New Mexico is out in front on this vital public health issue. There are a number of problems I have with EPA's proposals. I don't think a cap-and-trade program is a good idea for a neurotoxin like mercury and I am very concerned about the impact such a program would have on the four corners region, where some large power plants are located."

New York Attorney General Eliot Spitzer said: "Mercury is a potent toxin which can damage the nervous system, especially children's nervous systems which are still developing. The State of New York warns its residents not to eat fish from 40 lakes in New York because the fish are contaminated with mercury. EPA's proposed mercury regulation is neither lawful nor strong enough to protect human health and the environment."

Pennsylvania Environmental Secretary Kathleen A. McGinty said: "EPA's failure to regulate mercury as a hazardous air pollutant poses significant public health risks for pregnant women, children, subsistence fishermen and recreational anglers who are especially susceptible to the dangers of exposure. In addition, because mercury is highly toxic, EPA's plan to use a ‘cap and trade' program would compromise the integrity of trading and jeopardize its legitimate use as an effective tool to achieve cost-effective reductions in appropriate situations. Not only does this proposal ignore federal requirements and endanger public health, but it also prejudicially injures our Commonwealth's economy by favoring dirtier western coal over cleaner Pennsylvania coal."

Vermont Attorney General Bill Sorrell said: "If anyone has any doubts about the dangers posed by mercury in our environment, they need only consider the warnings posted by our health department or the fact that it is no longer safe to eat certain kinds of fish from several of our lakes and rivers. EPA is simply not taking this problem seriously enough."

Wisconsin Attorney General Peg Lautenschlager said: "The EPA's mercury rule is not only ineffectual and will perpetuate environmental harms and health risks to our children and citizens, it is illegal and just plain wrong. Wisconsin, as the other states we join today, should not tolerate this Administration's flouting of the law the Congress enacted to protect the public from the continued spewing of this hazardous material into our air and resources."

The 1990 Amendments to the Clean Air Act required EPA to study the health hazards posed by toxic substances being emitted from power plants. EPA conducted the mandated study through which the agency documented the severe health impacts posed by mercury and other toxic emissions from power plants. Based on these findings, EPA formally determined in December 2000 that it was "appropriate and necessary" to regulate such emissions as "hazardous air pollutants" (HAPs) under Section 112 of the Act.

Having made that finding, EPA is required under the Clean Air Act to set appropriate plant-specific emission standards based on the "maximum achievable control technology" (MACT) for mercury and other HAPs emitted from power plants. EPA is required to adopt a MACT standard for existing sources that represents "the average emission limitation achieved by the best-performing 12 percent of the existing sources," and for new sources, the MACT standard must be the "emission control that is achieved in practice by the best-controlled similar source."

EPA has proposed two distinct options for regulating mercury emissions from power plants. One is to set a plant-specific MACT standard. However, as discussed in the coalition comments, the particular standard that EPA proposed is "much too weak" and "at odds with" the Clean Air Act. The coalition notes that the standard proposed by EPA for bituminous coal is 17 times the actual emissions level already achieved by the best-performing 12 percent of power plants using current technology.

As its preferred alternative to that option, EPA has proposed an emissions "cap and trade" scheme that would allow power plants to elect, rather than reducing their own mercury emissions, to purchase emissions credits from other plants that reduce emissions below targeted levels.

The coalition rejects EPA's argument that emissions trading in mercury is authorized by the Clean Air Act. The states assert that EPA has a clear statutory obligation to set a plant-specific MACT standard for mercury. In addition, the coalition criticizes EPA's proposal to establish a "safety valve" provision through which industry can obtain relief if the price of purchasing emissions credits exceeds a set threshold. As stated in the comments, "the Act requires EPA to ‘protect public health with an ample margin of safety,' not to enact regulations that only serve to protect the economic interests of the power industry."

Mercury is a dangerous neurotoxin proven to cause a variety of developmental neurological abnormalities in babies and young children, including delayed developmental milestones, cerebral palsy, reduced neurological test scores and delays and deficits in learning abilities. Exposure to the most toxic form of mercury comes primarily from eating contaminated fish and shellfish. However, fish advisories, which have been adopted by EPA, are not an adequate substitute for appropriate regulation of mercury emissions under the Clean Air Act.