Mercury Ruling: Waiting For the EPA

BY ON December 20, 2011

 Marcia G. YermanAs a writer for Moms Clean Air Force, I was eagerly waiting to hear the December 16 announcement from the Environmental Protection Agency on their new rules to limit mercury and other toxic air pollutants. The day came and went, but there was no news.

The EPA is under a court-ordered deadline to sign the final air toxics rule for power plants into law. The updated regulations were slated to put out new standards for power plants that burn coal and oil. The goal was to cut approximately 90 percent of the mercury emitted from exhaust within three years. Other pollutants, including heavy metals, arsenic, and acid gases, were to be addressed as well.

Teresa B. Clemmer

Teresa B. Clemmer

I reached out to Teresa B. Clemmer, Acting Director of the Environmental and National Resources Law Clinic and Associate Professor of Law at Vermont Law School, to ask why the EPA had not delivered a statement. I also wanted to get a better understanding on the involved and circuitous rulemaking process.

“It’s not uncommon for EPA to miss deadlines,” Clemmer told me. “Sometimes EPA is hesitant to come out with final rulings on controversial issues,” she added. With a nod to the upcoming election, Clemmer stated, “President Obama needs to support the leadership of Lisa Jackson on critical public health and environmental issues and focus less on short term political considerations.” Since the EPA has missed the deadline, Clemmer believes the parties to the litigation prompting EPA’s action may be in the process of negotiating another extension of time.

Here’s the backstory:

  • The 1990 Amendments to the Clean Air Act set forth a list of Hazardous Air Pollutants (HAP) that the EPA needed to regulate. Although the original list didn’t include mercury, provisions were included to study the health effects of mercury, technologies available to control its emissions, and the costs of such technologies.
  • Although the EPA conducted the requisite studies, they missed the 1993 and 1994 statutory deadlines. It wasn’t until December 2000 that the EPA finally made the determination that it was “appropriate and necessary” to regulate HAP emissions from coal-fired and oil-fired power plants.
  • In 2004, the EPA issued Proposed Rules for Power Plants
  • In 2005, the EPA Delisted Power Plants from regulation under the HAP program
  • In 2008, the District of Columbia Circuit Court of Appeals ruled that the EPA had unlawfully delisted power plants. The parties to the litigation negotiated a deadline for a new rulemaking addressing toxic emissions from power plants, which was embodied in a court-approved consent decree. At one point the deadline was Nov. 16, 2011, and it was later extended to Dec. 16, 2011. This is the ruling that the public is waiting for.

In March 16, 2011, when the EPA proposed rules to regulate Mercury and other toxins from power plants their findings showed that:

  • The proposed rule would reduce mercury emissions by 91% when fully implemented.
  • By 2016, the proposed rule would avoid 6,800 to 17,000 premature deaths, and thousands of other related beneficial health effects.
  • The total annual cost of the rule in 2016 would be $10.9 billion compared to the health benefits of $59 to $140 billion.

On the issue of mercury as a neurotoxin, Clemmens said unequivocally, “The toxicity is terrible for the development of young brains. Chronic exposure creates severe effects.”

Faulting the power industry for avoiding regulations for twenty years while air, water, and fish have been contaminated, Clemmens pointed to the strength of the coal lobby. She was direct in her opinions. “There is no such thing as clean coal. From cradle to grave, coal is a disaster. Mining it destroys landscapes, burning it generates huge quantities of ozone and particulate matter, toxic pollutants, and greenhouse gases. Disposing of its byproducts leads to the creation of toxic waste lagoons that are slowly and silently leaching into the water. At every stage of its life, coal is dangerous. It’s the single most responsible cause for the climate crisis.” She capped off her comments with the pronouncement, “Coal is a ticking time bomb.”

In response to those who play the “economic burden” card, Clemmer replied, “The owners and top executives in the coal industry are not in the business of creating jobs. Their main interest is in getting wealthy.” Rather than kicking the can down the road, Clemmer advocates focusing on the renewable forms of energy such as wind, solar, and geo-thermal.

Applauding the efforts of those citizens pushing back, Clemmer encouraged, “Get active and vocal, and stay involved. It really does work when elected officials hear from their constituents.”

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Photo Credit (Clemmer): Mark Washburn

TOPICS: Coal, Economics, Mercury Poisoning, Pollution