Environmental Groups Sue EPA Seeking Strict Deadline for Mercury MACT

In my opinion the suit should not be necessary. All indications from the Obama transition team, plus the president elect's own policy statement and language during the campaign point to swift action in this regard. The groups filing the lawsuit, lead by Conservation Law Foundation, know their chances are pretty good but they also realize that rule making can take time and they want swift action to begin so a reasonable deadline can be met.

An excerpt form a Boston Globe article on boston.com follows;

A group of conservation and public health groups filed a lawsuit today against the Environmental Protection Agency asking for a strict deadline for the agency to require coal-fired power plants to reduce their emissions of mercury and other toxic pollutants.

The Conservation Law Foundation, a New England-based advocacy group; Environment America, based in Boston; and the Natural Resources Council of Maine were among the 12 organizations that filed the complaint in federal court in Washington, D.C.
[...]
The Clean Air Act required that the Environmental Protection Agency regulate mercury and other toxic air pollutants from new and existing coal-fired power plants by the end of 2002. The Bush administration responded in 2005 with the Clean Air Mercury Rule, which allowed utilities to trade mercury emissions. Under the rule, some large power plants could keep emitting pollutants while buying pollution credits from cleaner plants. A federal court struck down the rule in February as unlawful because it did not impose mandatory, strict controls on mercury pollution for large power plants as the Clean Air Act requires.

The coalition that filed the suit today would like to see the incoming Obama administration fulfill the Clean Air Act by controlling mercury pollution from coal-fired power plants “within two years of taking office,” said Ann Weeks, legal director for the Clean Air Task Force and counsel for the Conservation Law Foundation.

She said the group had already met with Obama’s transition team and was hopeful the next administration would regulate the pollutants. She added: “We filed the lawsuit because it’s the tool we have at hand for making sure that there’s action.” (emphasis added)

Reality Sets In - MACT for Mercury If You Want To Build

See bottom of article for update (12-10-2008).

The writing is on the wall, if you want to have any chance of building a new coal fired EGU in the United States, you better spec in MACT controls for mercury, and even that may not be enough. A large Texas utility, Energy Future Holdings (formerly TXU Corp.), has decided it is better to switch than fight.

In a sign of the times Energy Future Holdings signed a negotiated deal with Sierra Club to go forward and finish the construction of two plants in Texas. These plants were permitted by TCEQ already and potentially could have fought to go forward without the deal. But the sentiment in the country witnessed by the recent ruling in North Carolina with Duke Energy is, CAMR was a misguided regulation, and without further delay, environmentalists through the courts are going to force MACT as stipulated in the Clean Air Act.

A few excerpts from the Dallas News article by Elizabeth Souder follows;

The deal, also negotiated by Public Citizen, marks the second time Energy Future Holdings has struck agreements with environmental groups over plans to build coal-fired power plants. Environmental groups have targeted coal plants as major polluters and carbon dioxide emitters and have won several battles as politicians become more sensitive to environmental arguments.

Luminant, EFH’s power generation business, agreed to meet so-called “maximum achievable control technology” for mercury emissions on two coal units it is building at the Oak Grove site. That plant, which is under construction, already has air permits from the Texas Commission on Environmental Quality.

The company will file for MACT determination with the commission this week.

EFH lawyer Rob Walters said the company won’t change the design of the plants or slow down construction. Instead, the TCEQ will determine whether the plant may operate at full capacity and still meet MACT standards, or whether Luminant must dial down a bit.

When a plant doesn’t operate at full capacity, the plant doesn’t make as much power, but it also doesn’t emit as much pollution.
[...]
Luminant has already received air permits stating that the company will use so-called “best available control technology” on the plants. But since the TCEQ awarded those permits, rules on mercury emissions have changed.

The Sierra Club told Luminant it intended to sue the company because it wouldn’t meet the new standards. Mr. Walters believes the company doesn’t have to meet the new standards, since it received permits under a different set of standards.

The company chose to negotiate a deal rather than risk delaying the new plants because of a lawsuit.

I am sort of surprised Sierra Club yielded to the approach EFH is proposing since it doesn't appear that carbon injection or any other active mercury control is being sought. Limiting power output will reduce emissions and closing other older plants is really at the heart of all good policy. But how long will it be until power demand increases and forces these existing newer assets to produce what they were designed to produce. Perhaps at that point mercury controls will be more mainstream and agreements exist that they will be implemented at that time, although there is no mention of this in the article.

Since these plants were already under construction following an earlier deal EFH cut with Environmental Defense Fund and NRDC the construction will go on with these passive MACT assurances in place. The issue of greenhouse gases is set aside in this case and getting an agreement on mercury when the utility didn't really have to do so is what compromise is all about. I for one, would like to see formal assurances of active mercury control whenever possible.

Update (12-10-2008) - Apparently EFH is installing carbon injection systems at the facilities. This was clarified in another article in the Dallas Business Journal, excerpt below;

Luminant says, at the moment, the Oak Grove plant is installing sorbent injection systems that will use carbon to control the output of mercury emissions.

“This agreement gives us greater legal and regulatory certainty as we complete the Oak Grove generating station, which will help meet growing Texas electricity demand,” said Bill Moore, general counsel for Luminant. “We’re confident that our state-of-the art emissions control technology will continue to meet or exceed all regulatory requirements, reflecting our ongoing commitment to environmental stewardship.”

This Time It Looks Like CAMR Is Really Dead, No, Really!

A short excerpt from a subscription only article on InsideEPA.com explains;

High Court CAMR Deadline Extension Allows For Likely Obama Withdrawal

The Supreme Court's decision to give states and activists more time to respond to EPA and industry petitions for certiorari in their appeal of the clean air mercury rule (CAMR) vacatur boosts state and activist efforts to kill the rule because their deadline to respond is after President-elect Barack Obama takes office, creating an opportunity for his administration to withdraw the government's cert petition altogether.

The high court Dec. 1 granted New Jersey's request to extend the deadline for responses to the cert petitions, which seek review of the agency's mercury rule, vacated earlier this year by federal court.

The new Jan. 21 deadline opens the door for the Obama administration to act immediately to withdraw the Department of Justice's (DOJ's) petition. Obama is expected to withdraw the appeal because close advisors have opposed CAMR, which established a cap-and-trade program to address mercury emissions from power plants. For example, former EPA Administrator Carol Browner, who sits on Obama's transition team, has urged an evaluation of the need for a strict new mercury emissions control program.
[...]
if Obama were to withdraw the petition on his inauguration day, that would send a strong signal that DOJ is conducting an about face on its strategy of defending controversial Bush EPA policies, supporting recent arguments by former Justice officials for just such a move. Lois Schiffer, a senior DOJ official under Clinton, and Richard Lazarus, who worked in the department during the administrations of Jimmy Carter, Ronald Reagan and George H.W. Bush, recommended the abandonment of dubious legal arguments even in ongoing cases under the next administration, in a recent article in the Harvard Law & Policy Review.

While some observers say a change in legal arguments could damage DOJ politically, Schiffer and Lazarus say, “[I]n some circumstances changes of position in either enforcement or defended cases may well be warranted.”

The case for CAMR has been a long shot all along. It has taken on a catlike identity in that its death has been proclaimed several times. But the lives are running out and MACT seems to be in order for mercury controls.

EPA Shocks Environmentalists - Gets It Right!

This story goes under the heading of "man bites dog." It has been very rare these last few years to hear a well respected environmentalist say good things about an EPA ruling. So this needed to be posted upon.

It appears the EPA back in mid-November decided to crack down on medical waste incinerators. It originally issued standards for these sites back in 1997 (a ruling that was successfully challenged in court by Sierra Club), and the result then was that most small operations, those run at individual hospitals, shut down and shipped their wastes to larger operations. But this latest ruling, published in the Federal Register yesterday takes it all to a new level.

In an article from the Washington Post some startling excerpts follow;

"This is the first time I've ever seen them do an air toxic rule right," said Jim Pew, a lawyer at Earthjustice, a Calif.-based environmental advocacy group that sued the agency over its initial proposal for regulating the incinerators more than a decade ago. "It's a big cut in emissions."
[...]
EPA estimates that the proposed rule would cut the amount of air pollution from medical incinerators by 468,000 pounds to 1,520,000 pounds per year, though it did not provide an estimate of current emissions. Mercury emissions, which cause neurological damage in children, would drop by 637 to 682 pounds annually, and cancer-causing dioxin emissions would drop by about 40 grams.

According to an agency fact sheet, "The proposed emission limits would require improvements in performance for all of the 57 currently operating" medical incinerators. It will cost these facilities $21.1 million a year to comply with the new standards, though they could use alternative disposal methods to meet the rules at half the cost, the agency said.

The rules represent a significant change from the EPA's 1997 proposal, which Earthjustice successfully challenged in court on behalf of the Sierra Club. In almost every instance, the agency has reduced the amount of allowable pollutants by at least a factor of 10: Acceptable hydrogen chloride levels will drop from 15 parts per million in the atmosphere to 0.75 per million.

"This is really remarkable," Pew said.

What's next?

More EIP Data & Comments

After the full release of the EIP report there was some interesting data released and some very poingnant comments made. A MarketWatch article details some of the highlights and comments. I suggest reading the entire article but some excerpts follow;

The report from the Environmental Integrity Project rates the power plants both in terms of sheer mercury pollution and mercury pollution adjusted per kilowatt hour. The 12 states with the most plants in the top 50 in terms of mercury pollution are Texas (7, including half of the 10 worst), Pennsylvania (5), Alabama, (4, including the worst plant and also 2 of the 10 worst), Georgia (4, including 1 of the 10 worst), Ohio (3), Indiana (3), North Dakota (3), Missouri (2, with 1 of the 5 worst), Kansas (2), North Carolina (2), Wisconsin (2), and Arkansas (2). Minnesota was unique in terms of having one of the 10 worst plants, but no second plant among the 50 worst.
[...]
Highlights of the EIP report include the following:

-- Of the top 10 power plant mercury emitters, all but one reported an
increase as compared to 2006.

-- Southern Company's Miller plant, in Jefferson County, Alabama, is
ranked number one in the nation for 2007, reporting nearly a ton of
mercury air pollution in 2007. This represents a nearly 14 percent
increase over the plant's 2006 reported emissions.

-- Texas power plants claim five out of 10 spots among the nation's
highest mercury emitters. Dallas-based Luminant (formerly TXU) has
four plants - Martin Lake, Monticello, Big Brown, and Sandow - ranked
among the nation's top mercury emitters. Together, these four plants
emitted just over two and a half tons of mercury in 2007 - a
staggering 5 percent of the national total.

-- Eight Southern Company plants in Georgia and Alabama are ranked
among the top 50 power plant mercury emitters.

Environmental Integrity Project Senior Attorney Ilan Levin, of the EIP Austin, TX office, said: "When the original Clean Air Act was passed in 1970, the electric utility industry persuaded Congress to not impose strict pollution controls on old power plants, because they would soon be replaced by newer state-of-the-art facilities. Yet despite the industry's promises, many of the nation's oldest and dirtiest power plants continue to operate. Pollution controls that dramatically reduce emissions are widely available, and already being used at many plants. But, until the public and policymakers hold the electric utility industry to its promised cleanup of the nation's oldest and dirtiest power plants, Americans will continue to bear unnecessary health and environmental costs."

Jan Jarrett, president and CEO of Citizens for Pennsylvania's Future (PennFuture), said: "Cleaning up our power plant mercury emissions is vital so that women and their children will not be exposed to unacceptable and dangerous levels of toxic mercury and to reduce mercury levels in our fish and waterways. These continued high mercury emissions from Pennsylvania plants clearly demonstrate the need for Pennsylvania's state-specific mercury rule that was adopted in February of 2007. Our rule requires an 80 percent reduction in mercury emissions from power plants by 2010 and a 90 percent reduction by 2015 and does not allow power plants to trade toxic mercury emissions. We hope that we'll see these emissions drop significantly over the next several years."

Cathy DeSoto, PhD, associate professor of psychology, University of Northern Iowa: "It is important to understand where the current scientific debate actually lies. There are no experts who deny that mercury emissions are causing some damage to developing brains and causing drops in IQ - and there is no debate that there is a monetary cost associated with this loss. There is debate within the scientific community about the actual dollar amount associated with the IQ detriments. Furthermore, recent research has specifically documented the type of damage that low levels of mercury exposure cause to developing neurons. This damage occurs even at levels of mercury exposure that would be unlikely to cause harm in an adult; but at levels that a significant portion of the child-bearing population have circulating in their bodies."

National Parks Conservation Association Program Analyst Bart Melton said: "National parks across the U.S. suffer from high concentrations of mercury pollution - a key source of which are coal-fired power plants. At the Great Smoky Mountains, mercury pollution is continually showered over the park, and then works its way up the food chain, threatening the health of park visitors and wildlife. We need to shut off the toxic mercury spigot at coal-fired power plants to keep national park visitors and wildlife healthy."

For links to the full report, the press release and the streaming audio go here.

States Grapple With Realization They Are Among The Dirtiest When It Comes To Mercury

As we reported yesterday the new EIP report had bad news for the nation and bad news for some individual states.

Arkansas - from the Arkansas Democrat Gazette

Based on emissions at two of its three coal-fired power plants, Arkansas is among the nation’s “dirty dozen” states when it comes to mercury pollution, says a group founded by a former Environmental Protection Agency official.
[...]
According to a project report issued Thursday, Independence ranked 30 th nationwide in total pounds of mercury emissions in 2007, belching 596 pounds of the toxic metal into the air. That’s a 16. 3 percent increase over its emissions in 2006. The White Bluff facility ranked 43 rd nationally with 518 pounds of emissions — down 6. 6 percent since 2006, the report states.

SWEPCO’s Flint Creek plant near Gentry was not listed among the top 50.

Independence and White Bluff are both Entergy plants and James Thompson defended Entergy's environmental efforts. Some excerpts from the Arkansas News Bureau follow;

Entergy Arkansas spokesman James Thompson acknowledged the listing but said both plants were operating within federal and state emission limits, at levels that do not pose significant health hazards.

Thompson said Entergy was the first utility in the nation to voluntarily stabilize greenhouse gas emissions in 2000 and has committed to do so through 2010. Also, he said Entergy is among the top 10 cleanest electricity generators with its balance of sources, including 80 percent from its nuclear power plant near Russellville.

"We've done everything that's been asked of us plus more from a voluntary standpoint in cutting the emissions," Thompson said.

"We can't simply eliminate the use of fossil fuels to produce electricity - coal here in Arkansas accounts for about 20 percent of our generation," he said. "But we maintain a balance between reliability, cost and environmental concerns. We're doing what we can do and what we are being told to do by both federal and state regulators."

Alabama - from The Birmingham News

Alabama Power's coal-fired plant in west Jefferson County released more mercury into the air in 2007 than any other power plant in the country, according to a report released Thursday by the Washington-based Environmental Integrity Project.

And the company's Shelby County plant ranked No. 8 nationally in mercury emissions for 2007, according to EIP's study of emissions information in the Environmental Protection Agency's Toxic Release Inventory report.

Alabama Power spokesman Michael Sznajderman said scrubbers being installed at all of the company's coal-fired plants will significantly reduce those emissions in the coming years.

New EIP Report Shows Very Little Progress In Mercury Emissions, In Fact We Are Going The Wrong Way

The new Environmental Integrity Project report shows most of the 50 dirtiest coal fired EGUs have actually increased emissions since 2006. The full report will be broadcast live on a two way teleconference at 1:00PM ET.

Some highlights of the report include the "Dirty Dozen", the 12 states generating the most mercury emissions. They are Texas, Pennsylvania, Alabama, Georgia, Indiana, Ohio, Arkansas, Kansas, North Carolina and Wisconsin.

An excerpt from a MarketWatch article follows with more details of how to join the conference call or listen to a streaming audio replay.

Deadly mercury pollution levels have actually risen since 2006 at the majority of the 50 worst coal-fired power plants in the United States, according to a major new report from the nonprofit Environmental Integrity Project (EIP).

The report rates the power plants both in terms of sheer mercury pollution and mercury pollution adjusted per kilowatt. [...] The worst plant was found in Alabama. Texas accounts for five of the 10 dirtiest plants in terms of mercury emissions.
[...]
The EIP report discusses ways in which mercury removal is achievable. It also points out how the Environmental Protection Agency (EPA) has backed off from strict power plant mercury regulation in the past several years.

News event speakers will be: Environmental Integrity Project Counsel Ilan Levin, of the Austin, TX office; Jan Jarrett, president and CEO of Citizens for Pennsylvania's Future (PennFuture); and a representative of the Southern Environmental Law Center, which operates in Alabama, Georgia, North Carolina, South Carolina, Tennessee and Virginia.

TO PARTICIPATE: You can join this live, phone-based news conference (with full, two-way Q&A) at 1 p.m. ET on November 20, 2008 by dialing 1 (800) 860-2442. Ask for the "EIP mercury report" news event.

CAN'T PARTICIPATE?: A streaming audio replay of the news event will be available on the Web at http://www.environmentalintegrity.org as of 6 p.m. ET on November 20, 2008.

Bush Requests SCOTUS Review of CAMR

Why am I surprised by this? I should have seen it coming. But all my common sense told me not even 'W' would try for a Hail Mary of this magnitude. Last Friday the Bush administration requested the Supreme Court of the United States to consider hearing arguments to overturn the unanimous US Circuit Court of Appeals vacatur of the Clean Air Mercury Rule.

No one really expects this strategy to do anything but delay future more meaningful attempts at regulating mercury emissions from coal fired power plants. The Clean Air Act is pretty specific in its intentions, and waving mercury as a hazardous pollutant is not one of them. Several attempts to fight this request will be mounted to force EPA and Congress to simply get on with legal regulation of a hazardous toxin.

A brief article and audio broadcast from Pat Bradley at WMAC - Northeast Public Radio has more.

Wisconsin Finalizes 90% Reduction Rule; Univ. of Michigan Researchers Discover Mercury Fingerprinting Technique

Wisconsin
The State of Wisconsin, known as a haven for fishermen, has taken steps to see that that reputation remains intact. They become one of only a handful of States to pass tough mercury legislation requiring a 90% reduction in mercury emissions by 2015. A state regulation proposed by the Natural Resources Board will go into effect January 1, 2009.

Some excerpts from a Capital Times article follow;

The rule will require a reduction in the amount of mercury sent into the environment by coal-powered power plants by 90 percent by 2015. Coal plants are a major producer of the toxic substance.

Under the rule, those plants also have an option of moving the full mercury reduction target back to 2021 if sulfur dioxide and nitrogen oxide are reduced before then.

"DNR Secretary (Matt) Frank can sign the rule Tuesday morning, and it will be delivered immediately to the Legislative Reference Bureau for publication. It would likely be effective December 1, and January 1 at the latest, depending on when it is published," said Paul Heinen of the Department of Natural Resources.
[...]
Rep. Spencer Black, D-Madison, declared victory after a long fight to cut down on mercury emissions. He first filed a legal petition for rules to limit mercury emissions in May 2000, along with 12 environmental and fishing groups.

"Today is a great day for those of us who love the outdoors, especially all the residents and visitors to Wisconsin who love to fish or to eat fish," Black said. "Almost every lake in Wisconsin is under warning for mercury pollution. This rule will ... help to clean up our valuable water resources."
[...]
"Governor Doyle promised to work for a 90 percent reduction in mercury emissions, and he has kept that commitment," Black said. "
[...]
Business organizations including Wisconsin Manufacturers & Commerce, Wisconsin Utility Investors and the Wisconsin Paper Council tried unsuccessfully to obtain a court order blocking the rule before the board acted, saying the DNR did not adequately define the scope of the rule. A Dane County Circuit Court judge dismissed the lawsuit.

U of M Mercury Fingerprinting
Excerpts from an article from PhysOrg.com summarizes as follows;

Oct 8, 2008 - (PhysOrg.com) -- University of Michigan researchers have developed a new tool that uses natural "fingerprints" in coal to track down sources of mercury polluting the environment. The research is published in today's online issue of the journal Environmental Science & Technology.
[...]
"There has been a lot of controversy about how much mercury is coming from different types of industrial activities, compared to natural sources, but it has been difficult to figure out the relative contributions," said co-author Joel Blum, the John D. MacArthur Professor of Geological Sciences and a professor of ecology and evolutionary biology. "And even if you can determine how much of it is coming from natural versus human sources, there's still the question of how much is from global sources, such as coal-fired power plants overseas, and how much is being produced and deposited locally."
[...]
"For some time, we weren't sure that it was going to be technically possible, but now we've cracked that nut and have shown significant differences not only between mercury from coal and, say, metallic forms of mercury that are used in industry, but also between different coal deposits," Blum said.

The fingerprinting technique relies on a natural phenomenon called isotopic fractionation, in which different isotopes (atoms with different numbers of neutrons) of mercury react to form new compounds at slightly different rates. In one type of isotopic fractionation, mass-dependent fractionation (MDF), the differing rates depend on the masses of the isotopes. In mass-independent fractionation (MIF), the behavior of the isotopes depends not on their absolute masses but on whether their masses are odd or even. Combining mass-dependent and mass-independent isotope signals, the researchers created a powerful fingerprinting tool.

Previously, Blum and coworkers investigated the possibility of using the method to identify sources of mercury contamination in fish. The coal project was more challenging because of the difficulty of extracting and concentrating mercury from coal. The researchers developed a system that slowly burns the coal under controlled conditions in a series of furnaces and then traps the mercury that is released.

More work is needed to perfect the fingerprinting technique, but Blum envisions using it in a number of ways to track mercury and assess its environmental effects.
[...]
"Scientists have models and other ways of estimating how much mercury will be deposited locally, but we may, for the first time, be able to directly differentiate between mercury coming from local plants and mercury that has been transported longer distances."

In a project already underway, Blum's research group hopes to pinpoint which of the many mercury sources in the San Francisco Bay area are contributing most to the contamination of fish and wildlife.

"We don't know whether particular sources of mercury are more biologically available than others and thus more likely to accumulate in animals," Blum said. "If we can figure that out, then we can help local agencies decide where efforts will be most productive in terms of preventing wildlife from being exposed to mercury."
[...]
Blum's coauthors on the Environmental Science & Technology paper are two former postdoctoral fellows, Abir Biswas and Bridget Bergquist; Gerald Keeler, director of the U-M Air Quality Laboratory; and Zhouqing Xie of the University of Science and Technology of China. The researchers received funding from the National Science Foundation, the University of Michigan and Sigma Xi.

Maybe someday we will be able to tell exactly which plant is responsible for which local mercury pollution. Many plants burn coal from the same geologic deposit like the Powder River Basin (PRB) in Wyoming. But by refining and improving this technique, adding source spiking for instance, who knows how specific the detection methods will become.

US and EU Both Move Forward with Laws Banning Future Exports of Mercury

Last week both the US Congress and the EU Ministers adopted regulations banning the export of mercury. The US version, if signed by President Bush, as expected, would go into effect in 2013, while the EU ban kicks in earlier in 2011. Both measures have been in the works for some time now. The US Senate version was introduced by Senators Obama (D-IL) and Lisa Murkowski (R-AK), and a House companion version was proposed by Rep. Tom Allen (D-ME), both in 2007. An excerpt from an article on All American Patriots website follows;

"I applaud Congress' overwhelming bipartisan passage of this important bill, which will protect millions of the world's vulnerable citizens, particularly pregnant women and children, from the deadly threat of mercury poisoning," said Senator Obama. "We know that mercury can cause serious developmental problems in children and problems affecting vision, motor skills, blood pressure, and fertility in adults. While the United States has improved its efforts to collect and contain mercury, this country remains one of the leading exporters of this dangerous product. Protecting Americans from the dangers of mercury has been one of my top priorities, and I am proud this bill will now remove a significant portion of mercury from the global market. This bill also represents an important agreement between industry and environmental groups towards that goal. I urge the President to immediately sign this bill into law."
[...]
The Mercury Export Ban Act will:

-Prohibit the commercial export of elemental mercury from the United States in 2013.
-Prohibit the commercial sale or transfer of federal mercury stockpiles held by the Department of Energy and the Department of Defense for any purpose except for transfer into permanent storage.
-Provide for permanent storage of collected mercury by the Department of Energy.

This legislation is supported by the Natural Resources Defense Council, Environmental Council of the States, American Chemistry Council, the National Mining Association, and the Chlorine Institute.

An important issue also covered in the Bill was noted in an article in the Chicago Tribune;

Under pressure from Obama and a handful of other senators, the Energy Department last year agreed to keep its own 1,300-ton stockpile of mercury off the market. The metal once was used to process material for hydrogen bombs.

Meanwhile, EU ministers have been following a mercury strategy since 2005, this measure is the latest embodiment of that strategy. An article on Health & Environment Alliance's website has more.

The Blog, The Great Beyond also picked up on this story and had more insights, an excerpt of which follows;

Europe is the largest exporter of the substance, and concerns about moving mercury prompted the EU to introduce its ban, to both reduce mercury pollution and set an example to the rest of the world. It seems to have worked. The US, also a major exporter, has followed suit and will now have its internal stockpiles safely stored. The EU also plans to lower contamination levels by supply and demand, and protecting the population against exposure.

While all this seems good, and it is, one thing that is unclear is whether shipments within the EU and US will be stopped. Trying to keep the toxin out of the hands of small gold mining operations in third world countries seems to be the focus, but eliminating, (or at least severely limiting and regulating) its use worldwide would be better.

Wayward EPA Seeks More Time, Contemplates Supreme Court Appeal of CAMR

Talk about dragging out the inevitable, the EPA has requested a second extension of the deadline to appeal to SCOTUS the D.C. Circuit Courts unanimous decision to vacate the CAMR. The D.C. Circuit Court even denied EPA a chance to have it's ruling reviewed. The problems with CAMR were so clear that to pursue this further via appeal is certainly only a delay tactic. Some excerpts from an article in Energy & Environment News (subscription req'd) elaborate below;

For the second time in a month, the Bush administration is asking the Supreme Court for more time to decide whether to appeal a decision by the U.S. Circuit Court of Appeals for the District of Columbia that struck down a controversial cap-and-trade program for mercury emissions from coal-fired power plants.

Acting Solicitor General Greg Garre asked the court to extend its deadline until Oct. 17, a full two months from the date by which a writ of certiorari would normally be required. Garre said the additional time "is needed to complete consultation" with U.S. EPA over a number of recent legal setbacks relating to the agency's Clean Air Mercury Rule.

Chief Justice John Roberts already approved the initial request, pushing the date from Aug. 17 to Sept. 18.
[...]
Last March, the same court that struck down the mercury rule agreed that EPA violated the Clean Air Act by exempting coal- and oil-fired power plants from a list of industries subject to regulation of hazardous air pollutants under Section 112 of the act.

EPA in 2000 included power plants on its list of regulated industries under Section 112 but then reversed itself in 2005, saying it was neither "appropriate or necessary" to include power plants on the source list because the power sector's emissions were subject to other statutes that achieved the same or greater public health benefits.

On the heels of that March 2005 decision, EPA announced its new mercury control program for power plants, drawing upon the largely successful 1990s cap-and-trade program for sulfur dioxide, which had helped reduce acid rain pollution in the Northeast.
[...]
With the D.C. Circuit's rejection of both CAMR and the Section 112 delisting, EPA now must figure out how to retool its mercury control program within the more narrow confines of the law and, as Garre wrote, "to assess the legal and practical impact of the [D.C. Circuit] court's ruling."

But critics of EPA's regulatory approaches say the request for more time amounts to little more than a stalling tactic. "They need more time because they need more time," John Walke, a senior attorney with the Natural Resources Defense Council, said of the latest application.

This most recent action highlights the wayward nature of the Bush EPA. The politicization of the Agency has long been discussed in oversight hearings on Capital Hill and in the press. An insightful article by Jori Lewis on emagazine.com summarizes some of the more egregious attempts by this off course and out of control agency to hijack the public will in favor of industrial interests and polluters. The mercury rule portion of the article is shown below. The full article can and should be read here.

"What has been most remarkable,” says Vickie Patton, the deputy general counsel for the Environmental Defense Fund, “is the extent to which the judiciary has provided a very unmistakable check on the EPA’s policies, [policies] that have really strained the nation’s clean air laws in ways that Congress never intended.”

Take the mercury emissions case. Mercury is a persistent neurotoxin that can find its way from fish to humans, where it can cause myriad health problems. Regulations under the Clean Air Act mandated stringent controls—some would have reduced mercury emissions by 90%. In 2005, the EPA passed a regulation that would require coal-fired power plants to reduce emissions by only 70% and use a cap-and-trade system that would allow cleaner plants to trade unused emissions.

“These rules came right out of the White House,” says Dr. Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists (UCS). She says that EPA scientists were told to come up with the data to justify such a change in policy. “Their own inspector general at the EPA found that EPA scientists were pressured to change their analyses and their findings to agree with a predetermined value for a national cap on mercury emissions.”

A federal court ruled in February that the new rules don’t go as far they should to protect the public from mercury.

Grifo says this is an egregious example, but one that is hardly unique in Bush’s EPA. There have been tales of suppressed research; of reports kept in draft form so they don’t have to be released to the public; and of political retaliation for those who stray off message. Read more.

Thank you emagazine and Jori for a reminder of what has been going on in our EPA.

Anishinabek and Other Indigenous People Still Dealing With Life In A Mercury Polluted Habitat

It was over a year ago I first brought to light the plight of the Anishinabek of the Gitchi Gami and their struggle with Canadian Government over mercury pollution on their lands. There has recently been published an update to this tragic situation without a lot of good news to add.

The culprit in this case appears to be Dryden Chemicals Limited and now their parent company Reed, Inc. A near decade of raw releases into the English-Wabigoon River have contaminated a large area covering many indigenous peoples' land. These people deserve to be treated better than we have done so far.

Stories like these should be used as warnings to us that uncontrolled mercury contamination can cause real harm. Yes, these releases were massive and directly into the water and today's EGUs and cement plants release mercury into the air over longer periods of time. But mercury and its long-lasting properties could make these sorts of catastrophic events more common and not so hard to imagine if we do not slow the build-up of this toxin in our waters.

An excerpt from the story is below.

In a message posted on the Friends of Anishinabek of the Gitchi Gami website, John H.W. Hummel, a pollution researcher based in British Colombia, explains that “when mercury or lead levels of 5 ppb to 6 ppb are found in the brain, 25 per cent of the glial progenitor stem cells simply ’shut down’! These particular brain cells are absolutely crucial for building the brain during infancy and beyond. This type of brain cell is also found in adults.”

Hummel believes that the thousands of Indigenous who have been ignored by the government should embark on a class-action lawsuit and has contacted Tony Merchant, from Merchant Law Group. Based in Saskatchewan, Mr. Merchant is the lawyer behind the recent compensation settlement for residential-school victims.

In his reply to Hummel, Merchant said he does not believe anything can be done for Grassy Narrows because of the 1985 settlement, however, “If there are identifiable mercury issues elsewhere” then such a lawsuit is a possibility. “We are prepared to pursue this issue,” Merchant says. “We are prepared to fund the battle which includes a battle regarding experts. If there are projects that we might undertake we will undertake them.”

The Mad as a Hatter story is found here. And a reprint of the story with more links for reference is here.

Obama Leads Bipartisan Legislation For Mercury Export Ban, S. 906

Last November Hg-ATME had a post about House Bill 1534, a bill proposed by Rep. Tom Allen D-Maine that would ban all exports of toxic mercury from the United States. The bill was nearly unanimously received and passed on a voice vote (no roll call required). At that same time Sens. Barak Obama, D-IL and and Lisa Murkowski R-AK were floating a similar bill through the Senate. At the time, the Whitehouse said it would not support the bipartisan legislation. Now almost a year later we have a marked-up version (S. 906, The Mercury Market Minimization Act) of the two bills that everyone has agreed on.

An excerpt from The Earth Times follows;

"Trading mercury is not like trading potato chips," said Michael Bender, director of the Mercury Policy Project. "While we spend millions of dollars in the U.S. collecting mercury, ironically it is then sold overseas and used in highly dispersive and dangerous ways, such as in small scale gold mining. Released from these practices, it circulates in the global environment and ends up in the fish that Americans eat."

The free trade of mercury and mercury compounds on the world market, at relatively low prices and in ready supply, encourages the continued use of mercury outside of the U.S.

"We applaud Senator Barak Obama's leadership on this bipartisan legislation," said Bender. "We've got to stop this circle of poison, where for example over 1000 tons of mercury are used annually by more than 10 million small scale gold miners in 50 developing countries, exposing themselves, their families and the local and global environment to this deadly neurotoxin."
[...]
While similar versions of the bill were introduced in the House (H.R. 1534) by Tom Allen (D-ME), and Senate (S.906) by Senators Obama (D-IL) and Lisa Murkowski (R-AK), the groups are urging passage of the substitute House-passed version, since it was the subject of subsequent negotiation and compromise, and more accurately reflects the current state of development on this issue.

Lets hope that the President has enough sense at this time to support it.

10 Years, What's the Rush

Cement kilns across the country are spewing mercury emissions at twice the rate EPA estimated, as recently as 2006. Ten years ago Congress compelled EPA to regulate and reduce these cement kiln emissions, and EPA has pretty much ignored the request. In a recently released study conducted by Earthjustice and the Environmental Integrity Project it is revealed that cement kilns are emitting more than twice the mercury EPA estimated.

An excerpt from a MarketWatch article below;

EPA Ignored Problem For 10+ Years Even Though Some Kilns Emit More Mercury Than Power Plants; Report Focuses on Cement Kilns in AL, CA, IA, IL, MD, MI, MT, NY, OR, SC, TX and WA.

For more than a decade after Congress told it to curb dangerous mercury pollution from cement kilns across the nation, the U.S. Environmental Protection Agency (EPA) refused to take action. Now, a new study from Earthjustice and the Environmental Integrity Project (EIP) documents the consequences of the EPA's failure: Cement kilns emit mercury pollution -- a threat to the health of pregnant women and children -- at more than twice the level estimated as recently as 2006 by the EPA, which only started to collect data on the problem in 2007.
[...]
Entitled "Cementing a Toxic Legacy? How EPA Has Failed to Control Mercury Pollution From Cement Kilns," the Earthjustice/EIP report outlines specific recommendations for EPA and state agency action based on the following key conclusions:

-- Mercury emissions from cement kilns are almost twice as high as the agency has previously acknowledged, and in many states kilns are among the worst mercury polluters. EPA now estimates that cement kilns emit nearly 23,000 pounds of mercury each year, far more than the Agency's 2006 estimate of 11,995 pounds.

-- A relatively small number of cement plants that use extremely dirty raw materials and fuels are among the worst mercury polluters in their states and, in some cases, in the country. For example, some cement kilns release as much or more mercury as coal fired power plants.

-- Since 1974, cement production has increased 15 percent, and further increases are projected for the future. Rising levels of cement production in the U.S. mean that the cement industry's mercury pollution will grow even worse if left unregulated.

Earthjustice staff attorney James Pew said: "EPA's new data confirm that cement plants are among the worst mercury polluters in this country. EPA has refused to acknowledge this problem for more than a decade, and the mercury contamination in our food and waters has grown worse every year as a result. It is high time for EPA to do its job and make this industry clean up its toxic emissions."

The 23,000 pounds, or 11.5 tons, is roughly one quarter of the estimated mercury emissions from all coal fired EGUs in the country (48 Tons). What I find amusing is, many of the cement plants use EGU flyash in their product, thus emitting some of the mercury (trapped in the flyash) that was captured by the air pollution control devices at the power plant. So we play an industrial game of catch and release.

First CAMR, Now CAIR - The EPA Leaves Us Unprotected Again

Just as the Clean Air Mercury Rule or CAMR was vacated by the DC Circuit Court of Appeals back in February, the Clean Air Interstate Rule has bitten the dust. Everyone knew CAMR was flawed establishing a cap-and-trade system to handle a toxin, and excusing EGUs from HAPs legislation, but most people, environmentalists included felt the CAIR had merit and was a program on the right track. Problem is the EPA didn't follow the correct procedure for rule-making of this kind.

In a statement by Eric Schaeffer of the Environmental Integrity Project carried by PRNewswire-USNewswire and printed on MarketWatch.com;

"Today, the DC Circuit Court of Appeals vacated the Clean Air Interstate Rule (CAIR), which would have required significant reductions of sulfur dioxide and other pollutants in eastern states. The CAIR rule would have established an emissions trading program, which the court found to be illegal because it failed to require each state to analyze its own contribution to poor air quality: 'The trading program is unlawful, because it does not connect state emission reductions to any measure of their own significant contributions.'

"The court's decision will leave millions of Americans exposed to unhealthy levels of air pollution from dirty power plants while the Agency goes back to the drawing board to redraft emission standards. For seven years, the Bush Administration has tried to weaken or eliminate Clean Air Act emission standards for power plants and other industries, while promising that its CAIR rule would make up the difference. That promise has proved to be hollow. The DC Circuit's decision today is only the latest in a series of rulings that have roundly rejected the Bush Administration's creative interpretations of the Clean Air Act.

"As of today, EPA is still toiling away to weaken air quality standards for national parks, and to make it easier for the oldest and dirtiest power plants to increase emissions without pollution controls. Elimination of the CAIR rule makes it even more important for Congress to step in and stop these rollbacks. Since this Administration has proved incapable of reading or following the law, Congress and the next President will have to write the standards that we need to protect the public health from air pollution."

The CAIR had the potential to be very, very beneficial to the public welfare, especially in the eastern half of the country. While EPA got its hands slapped in the CAMR case for not doing enough, this rebuke, in the eyes of the judges, says EPA went too far, or interpreted its authority to write rules beyond the scope of their actual power. It is too bad in this case because the rule was not that bad. But EPA has stringent criteria they must follow to create rules and cutting corners is not going to fly. A brief piece from Grist.org and the AP says it well;

Court strikes down clean-air rule that would actually clean air

One of the rare Bush administration clean-air policies favored by enviros has been struck down by a federal appeals court. The Clean Air Interstate Rule would have required 28 Eastern states to reduce soot-causing, smog-forming emissions that easily spread on the wind. The U.S. EPA estimated that the rule would prevent 17,000 premature deaths per year, tens of thousands of nonfatal heart attacks, millions of lost work and school days, and up to $100 billion in health-care costs. But ruling in favor of electric-power producers, the U.S. Court of Appeals for the District of Columbia Circuit found that the EPA overstepped its authority in instituting the rule and that the regulation contained "more than several fatal flaws." Says Frank O'Donnell of advocacy group Clean Air Watch, "This is without a doubt the worst news of the year when it comes to air pollution."

Sometimes you just can't win for losing.

Wisconsin Judge Clears Way for DNR's Mercury Emissions Plans

A Dane County Circuit Judge, Stephen Ebert, agreed with the DNR and rejected a lawsuit by business interests that tried to stop them. Although some environmentalists like Mark Redstein of Clean Wisconsin cheer the ruling, others are less so enthusiastic thinking it doesn't go far enough fast enough. The business groups may appeal the ruling too, so, in true compromise fashion the fact that most parties are upset by some portion of the plan, it is probably a pretty good plan.

Some excerpts from local media outlets and Forbes follow;

From WRN.com;
The Dane County Circuit Court Monday dismissed a lawsuit meant to block the DNR's rules on limiting mercury emissions from coal burning power plants. The challenge was brought by Wisconsin Manufacturers and Commerce, the Wisconsin Utility Investors and the Wisconsin Paper Council. The court rejected the groups' claim that the DNR did not perform the proper economic "scope" of the proposal.

Mark Redstein, Executive Director of Clean Wisconsin, applauds the ruling.

"We believe its time state takes on the important work of reducing mercury pollution."

From WKOWTV.com;
Mercury pollutes our air and water, threatening our health and a Wisconsin fishing tradition," Redsten said. "When technologies exist to reduce mercury pollution, we must hold utilities accountable and ensure they do everything within their power to protect our environment and our health."

The DNR proposal would require coal-fired power plants to reduce mercury emissions by following one of two paths. Operators of such plants could choose between reducing mercury emissions by 90 percent by 2015 or could extend that deadline until 2021 by agreeing to more stringent limits on nitrogen oxide and sulfur dioxide, which increase the methylization of mercury, making it more toxic to people, fish and wildlife.

And from Forbes.com;
Businesses that filed the lawsuit include Wisconsin Manufacturers & Commerce, the Wisconsin Utility Investors and the Wisconsin Paper Council.

They are considering appealing Monday's decision or fighting the rules once they are approved, attorney Dennis Birke said.

He argued Monday that the rule-making process should stop until the so-called "scope statement" is done.

The judge said businesses could have asked for the scope statement in 2005 when a rule change dealing with mercury emissions was considered.

"Choosing not to is akin to betting on the wrong horse," Ebert said.

Assistant Attorney General Diane Milligan argued the lawsuit was premature.

"The rule making process is far from over," she said, noting that the rule up for a vote Wednesday also must clear a legislative hearing process.

Opponents of the rules have raised concerns about their cost, the ability to comply within the time required and the fact that they would be more restrictive than federal law.

The DNR estimates that the new restrictions could cost $38 million to $91 million annually. That, in turn, could trigger consumer rate increases of up to 2 percent, according to a state Public Service Commission estimate.

Some environmental groups, doctors and health care workers have argued that the rules are too lenient and give utilities too much time to reduce emissions that they say threaten people's health now.

The DNR stands by the proposal.
[...]
The agency adopted rules four years ago that required Alliant Energy, Dairyland Power Cooperative, We Energies and Wisconsin Public Service Corp. to cut mercury emissions by 75 percent by 2015. Democratic Gov. Jim Doyle ordered the agency to step that up to 90 percent by 2018 during his re-election campaign in 2006.

Other utilities that would be covered under the new rules include Wisconsin Power & Light, Madison Gas & Electric Co., Manitowoc Public Utilities, Northern States Power Wisconsin and Mid-American Energy Co.

With CAMR Dead What Is There to Post On?

Well, the world of mercury emission regulations has been put on hold for a while. Everyone remotely involved in this subject, myself included, doubts very much if the EPA will appeal their loss in the Circuit Court of Appeals to the Supreme Court. It just does not make any sense, and for that reason alone it still may happen.

Short that possibility the Federal Clean Air Mercury Rule is dead. This leaves everyone with a stake in the issue a lack of direction, or maybe more correctly, a lack of urgency. The mere fact that CAMR was ruled illegal does set some direction. It is clear what the law (The Clean Air Act) does require and a MACT standard for mercury for coal fired EGUs will be forthcoming. But when that will happen, and what it will entail as far as reduction targets, monitoring, compliance timetables and such is left only for speculation.

I will try to stay on top of the debate and keep all of you posted as to the rumblings and grumblings when and if they happen. Meanwhile some immediate fallout from the vacatur is already upon us.

North Carolina Demands MACT for Cliffside
The Division of Air Quality in N.C. has reconsidered the permit they approved for Duke Energy and asked Duke to resubmit with maximum achievable control technologies for hazardous air pollutants including mercury. An excerpt from Asheville, NC's Citizen Times follows;

The division granted Duke an air quality permit in January for a new 800-megawatt boiler at its Cliffside Steam Station near Forest City.

After the division issued the permit, the U.S. Circuit Court of Appeals for the District of Columbia overturned the federal Clean Air Mercury Rule, concluding that the U.S. Environmental Protection Agency acted inappropriately in exempting coal-fired power plants from portions of the Clean Air Act that deal with the control of hazardous air pollutants.

The court's decision means that all new coal-fired plants must demonstrate that they use the most stringent controls for mercury and other hazardous air pollutants.

EPA Moves to Increase Allowed Fugitive Mercury Emissions from Chlor-Alkali Plants
I am not an expert on fugitive emissions and I don't know that increasing them from the few chlor-alkali plants still in existence is a big deal or not. It is my underastanding that the real issue with the outdated chlor-alkali process, that uses lots of mercury unnecessarily, is the effluent streams that immediately pollute the waters in the rivers nearby. Yes, the fugitive emissions are airborne and will add to the problem but they appear to be less significant, I could be wrong. But what I am not wrong about is that all chlor-alkali plants using the old mercury cell technology should be converted to be mercury free. Then there are no mercury laden effluents and no fugitive emissions to worry about.

More than a hundred of these plants have already converted or are in the process of doing so. Why do these four or five remaining plants hold on to the old technology so tightly. Yes, it is an expense to convert, and there may be a lengthy return on investment for the conversion, but undoubtedly ownership and management should be concerned with their neighbors and employees enough to go forward and change. Not doing so is a slap in the face of their surrounding communities and an admission that dollars are more important than lives.

An excerpt from a post on the Georgia Public Broadcasting blog, Georgia News GPB, follows;

A federal agency is proposing a new emissions standard for companies that make chlorine using mercury.

The new standard would release more mercury into the air.

Olin Corporation in Augusta uses mercury in its chlorine production. It's one of five in the nation that still do.

The federal Environmental Protection Agency is proposing to raise the percentage of mercury, called fugitive emissions, it allows companies to release into the air from the cell room where the chlorine is produced.
[...]
"It's another demonstration of the EPA allowing Olin to continue to pollute the Augusta area," says Tonya Bonitatibus, a field representative for the environmental watchdog group Oceana. She says the group is still studying the proposed rule but opposes the higher emissions.

David Blair, the plant manager at Olin in Augusta, declined to comment on the proposed rule, but did respond to the emissions issue in a written statement. "We've invested millions of dollars in technology and workplace practices during recent years," he said. "We already have in place a system that continuously monitors emissions at the cell room."

Blair said the company had reduced its emissions by more than 85 percent by 2007.

A link to the Proposed Rule is here.

EPA Denied A Rehearing En Banc by DC Circuit Court of Appeals

The folks at Turtle Talk have a good posting on this denial. Excerpt follows;

Environmentalists, however, doubt that the government will appeal the ruling to the high court, but leave open the option that industry may. “I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds. The utility industry on the other hand follows different public health practices,” John Walke, clean air director at the Natural Resources Defense Council, said in a May 20 statement.

The U.S. Court of Appeals for the District of Columbia Circuit May 20 denied EPA’s petition for a rehearing en banc of the Feb. 8 ruling in State of New Jersey, et al., v. EPA that struck down the agency’s rule to establish a cap-and-trade scheme for reducing mercury emissions. The court also rejected a March 24 request by the Utility Air Regulatory Group — which represents electric generating companies — for a full panel rehearing.

The full post can be read here.

Developing Story - DC Circuit Court Denies Rehearing The Case - As Far As They Are Concerned CAMR Is Dead

The news reports are a little sketchy right now but it appears the US Circuit Court of Appeals has told the DOJ that their appeal for an en banc rehearing of the CAMR decision on behalf of the EPA has been denied. I will get more details as they become available. This leaves the stubborn EPA only one last resort, The Supreme Court of the United States. It is that or get on with MACT. I think everyone involved, the courts, the power companies, the public, everyone would just as soon get it settled. MACT is not that bad and delay will only make it worse, as the delay over the last couple years has.

More to follow.

Senate Holds Hearings on Mercury Emissions - S. 2643 The Mercury Emissions Control Act Takes The Stage

Taken from Talk Radio News the following excerpt;

The Senate Environment and Public Works Committee held a hearing to discuss various pieces of legislation pertaining to the proliferation of mercury in the environment and in exports. Chairman Barbara Boxer (D-CA) could not be present, so Sen. Tom Carper conducted the hearing in her place. Carper said that “one in 17 women of childbearing age have mercury in their blood at levels that could pose a risk to their unborn children,” emphasizing that these groups are most at risk for health threats.

The senators discussed the merits of various mercury legislation including the Clean Air Mercury Rule (CAMR), which Carper said was “flawed” and “did not go far enough to protect the health of America’s vulnerable populations.” He advocated instead the Mercury Emissions Control Act, which “would require the U.S. Environmental Protection Agency to issue a new, stronger rule to control mercury emissions from power plants, as required by the Clean Air Act.”

And this from FedCenter.gov;

A bill to amend the Clean Air Act to require the Administrator of the Environmental Protection Agency to promulgate regulations to control hazardous air pollutant emissions from electric utility steam generating units; to the Committee on Environment and Public Works (Congressional Record: February 14, 2008 [Senate], Page S1054). Text of the Bill is available here.

Sierra Club Pushes MACT In Mother’s Day Campaign Against EGUs, While States “Pare Back” Resolutions On GHG and Mercury

The Club
The Sierra Club has initiated a coordinated push, just before Mother’s Day, to get all new coal fired EGU permits reviewed to take into account the vacated CAMR, the subsequent mandate, and the resulting MACT hammer required by Section 112 of the Clean Air Act. While the EPA and UARG have asked the DC Appeals Court to reconsider their earlier vacatur, it is unlikely that the ruling will be changed. All we are left with is another delay and the uncertainty that brings. But it seems inevitable that a mercury MACT will become law at some point soon and now is the time to insure new plants meet that standard. A pop from YubaNet.com on this subject;

Just days before Mother's Day, the Sierra Club today is launching a massive, multi-state effort to educate the public about the dangers of mercury pollution, and ensure that all new coal-fired power plants employ modern mercury pollution controls.
[…]
"We want to give moms across the country some peace of mind this Mother's Day," said Bruce Nilles, Director of the Sierra Club's National Coal Campaign. "That's why we're taking action today to ensure that these coal plants make every effort to keep their toxic mercury pollution out of our communities."

And some more excerpts from a Reuters article describing the Sierra Club actions follow;

The Sierra Club sent letters on Tuesday threatening to file suit to stop construction of eight coal-fired power plants in six states because, the environmental group claims, they violate the Clean Air Act.

"This is the first major ramification on the ground from the (Washington) D.C. circuit kicking out the Bush administration's rules in February," said Bruce Nilles, director of the Sierra Club's effort to stop coal power plants.

In February, a federal appeals court in Washington ruled that the U.S. Environmental Protection Agency violated the Clean Air Act in not setting mandatory cuts for mercury emissions of power plants.

The suits would be filed in the federal districts where the proposed power plants would be located, Nilles said. The suits would seek to require the plants to go back to state permitting agencies for new permits that meet the tougher emission standards, Nilles said.
[…]
About 30 coal-fired plants may be affected by the Sierra Club suits, Nilles said.
Owners of three plants under construction have already been notified of the intent to sue by the Sierra Club – Entergy […] for a plant in Louisiana, Peabody Energy […] for a plant in Kentucky, and Louisiana Generating, a unit of NRG Energy, […] for a plant in Louisiana.

Another eight letters were sent on Tuesday, for plants in Arizona, Georgia, Kentucky, North Carolina, Texas and Wyoming, the Sierra Club said. Among the plants involved are Duke Energy's […] Cliffside plant in North Carolina and Energy Future Holdings, formerly TXU Corp, for its proposed Oak Grove plant in Texas.

The Sierra Club said it is considering whether to send intent to sue letters to owners of a dozen more plants in Kentucky, Louisiana, Texas, Wyoming, Iowa, Massachusetts, Missouri, Nebraska, North Dakota, Pennsylvania and South Carolina.

The coordinated effort extended to other plants as well. Sierra Club joined up with GreenLaw and Friends of the Chattahoochie to begin the process to sue Dynegy and LS Power over their planned 1,200 megawatt Longleaf Energy Station in Georgia. From the Atlanta Business Chronicle the following excerpts;

Three environmental groups plan to sue Dynegy and LS Power over potential mercury emissions at the first coal-fired power plant to be built in 20 years in Georgia. Sierra Club, GreenLaw and Friends of the Chattahoochee said they plan to sue Houston-based Dynegy (NYSE: DYN) and East Brunswick, N.J.-based LS Power, claiming the companies' 1,200-megawatt Longleaf Energy Station near Columbus, Ga., would violate the Clean Air Act for alleged failure to have adequate controls on mercury emissions.
[…]
In January, Administrative Law Judge Stephanie Howells upheld the Georgia Environmental Protection Division's decision to issue an air pollution permit to Longleaf Energy Station. The environmental groups had argued the Dynegy did not adequately restrict health- threatening sulfur dioxide, nitrogen oxide, sulfuric acid mist and total particulate matter emissions.

On Tuesday, Sierra Club, Friends of the Chattahoochee and GreenLaw, reported that in another court action, they have challenged the air pollution permit. The case is now before Fulton County Superior Court Judge Thelma Wyatt Cummings Moore and is expected to be heard this summer.

The States

Meanwhile the states, left to their own to figure out how to move forward in a vacuum of mercury guidance from EPA held their Environmental Council of the States (ECOS) meeting in New Orleans in mid April. Without a definitive word from the Feds on either GHG legislation or mercury legislation the states were left to duke it out amongst themselves as to what they would resolve on these issues. I will focus my discussion on the mercury debate, while the GHG argument took on much the same tone.

There was little agreement on whether to approve the earlier resolution on mercury. Some highlights from the Subscription Only Inside EPA’s Clean Air Report follows;

… states also disputed a resolution that as originally written urged EPA to issue a maximum achievable control technology (MACT) standard for mercury, in light of the recent federal court ruling vacating EPA’s clean air mercury rule that would have established a cap-and-trade program rather than imposing technology mandates. Many observers say a so-called MACT hammer under Section 112 of the Clean Air Act now requires states to develop a plant-by-plant MACT standard in light of the court rejection of the trading rule.

The original resolution said EPA should develop a MACT standard that considers “the most stringent performance standards already adopted by the states.”

But Oklahoma’s (DEQ Director Steven) Thompson said, “It’s my understanding that under MACT EPA can consider the top 12 percent” of emissions control technologies, not necessarily only “the most stringent.” Ultimately, states agreed to change the language so that the final resolution says EPA should consider performance standards already adopted by states when developing the mercury MACT.

Nevertheless, the idea of using a resolution to call on the issuance of the MACT drew objections from a handful of states. Indiana’s (IDEM Commissioner Thomas) Easterly said the resolution is “premature” because the court has not yet responded to EPA’s request for a rehearing. A motion to table the resolution until ECOS’ annual meeting in September narrowly failed, by a vote of 16 – 17.

An overwhelming majority of states voted in favor of the watered-down final resolution that simply calls on EPA to consider state standards in setting a MACT, though at least three states verbally objected.

Speaking to Inside EPA after the resolution passed, EPA Office of Air & Radiation Principal Deputy Assistant Administrator Robert Meyers said the agency “will certainly look at them and we respect ECOS,” though he said that EPA views such resolutions mostly as “advisory statements.” – Anthony Lacey (Inside EPA Author)

This whole debate just shows how much the country needs leadership and decisions regarding mercury legislation. The power companies know its coming and MACT is not unreasonable by definition. It promotes already existing technology, which as I see it now, is much less expensive than other air pollution control devices already in existence.

Wisconsin Business Groups - "Not So Fast" - File Suit Against DNR Over Mercury Proposal

It didn't take long for the opposition to step forward. Several WI business groups have filed suit in Dane County Circuit Court seeking a halt to the DNR's recently proposed rules on mercury emissions (see last post below). The DNR, in response to Gov. Jim Doyle's request, floated the proposal to cut mercury emissions 90% by 2015. There were options included to limit SO2 and NOx below federal and state requirements to buy time to meet the mercury limits until 2021. The fact that environmental groups were disappointed it didn't move faster without the loopholes and that industry was concerned it could meet the stated goals, to me meant it was probably a pretty good compromise.

Now it will move to the courts. The groups are not questioning the limits or timetables set forth in the proposal, they are asking the DNR to follow the procedures for rule making. An excerpt from The Capital Times follows;

The organizations -- including the Wisconsin Builders Association, Wisconsin Utility Investors and Wisconsin Manufacturers and Commerce -- filed the lawsuit in Dane County Circuit Court Monday.

The lawsuit is not challenging the merit or substance of the proposed rule, the organizations said in a news release. Instead, they are asking the DNR to comply with public notice requirements of the Job Creation Act of 2004.
[...]
"Had the DNR issued an accurate scope statement for this rule, the affected parties would have had the opportunity to request an economic impact report during a 90-day window provided by the law," the news release said.

"The lack of an accurate scope statement has prevented Wisconsin businesses, lawmakers and electric ratepayers from availing themselves of their due process rights to request preparation of this critical economic report."

"We are still analyzing the lawsuit. We have referred it to the Department of Justice and cannot comment at this point," said Laurel Steffes, a spokeswoman for the DNR.

Back From Costa Rica, Let’s Catch Up On What’s Going On In Mercury Emissions

I just returned from an eleven-day vacation in Costa Rica. It was fantastic! We visited Torteguero, volcanoes Poas & Arenal, Manuel Antonio National Beach and Manzanillo. What an amazing country. I’ll get some photos up here in the near future.

DOJ’s Heart Not In Appeal
According to Inside EPA’s Clean Air Report the DOJ begrudgingly filed the most recent appeal of the DC Circuit Court’s mercury ruling. In fact they use the term “’violent’ DOJ Opposition” in their April 3, 2008 release by Dawn Reeves. The Inside EPA’s Clean Air Report is a subscription only publication. In this article it states, One informed source says DOJ was “violently opposed” to filing an appeal of the CAMR ruling, as were mid-level staff in EPA’s air and general counsel office. “Clearly, someone higher up leaned on them to file,” the source claims.

The UARG filing only asked the three judge panel to reconsider their ruling while the EPA’s request for en banc hearing was, in one source’s opinion, “because they recognize they have zero chance of convincing the original panel.”

And the source says the agency’s request for review uses “strong language,” such as referring to the earlier ruling as “absurd” and “nonsensical” that the source says is highly unusual for a court filing. The source calls this a “reflection of desperation” particularly because the “next administration, whoever it is, is not going to abide by the view.”

The full DC Court could outright reject the appeal, as many think they will. Most of the parties directly involved in the case are not commenting publicly so we will have to wait and see what happens. A last tidbit from the Inside EPA’s article is;

One legal expert says that in order for the court to accept EPA’s request, a majority of the 10 active judges on the court would need to vote in favor of it. “So, if none of the judges on the original panel changes his/her mind, six of the seven remaining judges would have to vote in favor. Seems unlikely,” the source says.

CAMR Vacuum Leaves States In A Lurch
After the CAMR was vacated by the DC Circuit Court and the resulting swift issuance of the mandate, states around the country had no guidance as to how to assess permit applications for new plants or those requiring new permits.

In another article from the April 3, 2008 edition of Inside EPA’s Clean Air Report EPA’s outgoing General Counsel Roger Martella says “the agency is working toward developing guidance for how states should address mercury limits at power plants undergoing the permitting process, in the absence of a federal mercury rule for reducing emissions. The issue is “very much on our minds at EPA,” he said.
[…]
Many state, industry and environmentalist sources have said if the court issued a formal mandate, then the air act’s section 112(g) would apply. That section requires case-by-case reviews of new permits to impose maximum achievable control technology (MACT) requirements to reduce air toxics.

In the article it was also noted that the EPA has not finalized approval of several of the states plans for mercury and Martella said, “it is unclear whether EPA would complete the process of approving pending state mercury plans. “”That’s a good question,” he said.”

Wisconsin Looks To Move Forward
The Wisconsin Department of Natural Resources is pushing forward with its rulemaking regarding mercury emissions from coal fired EGUs. The DNR recently extended the comment period for its proposal until May 5th allowing industry groups and others a better chance to digest the implications and make informed comments. In an article from Madison, WI’s Capital Times;

"While this rulemaking effort has been ongoing within the department for well over a year, most of us have only just recently seen the rule and underlying documentation," they said in a joint letter. The organizations noted that several materials were not available until early March.

They also asked the department to allow sufficient time to consider all comments before the Natural Resources Board makes a decision, which had been set for its meeting on May 28. The board is now expected to consider the matter at its June 25 meeting.
[…]
"The time allowing for comments isn't huge but, on the other hand, we have been debating mercury since 2000 and the technology has improved a lot in that time," said Keith Reopelle, program director for Clean Wisconsin.

The organization also argues that the deadline for emissions reductions should occur sooner than 2015, the rule's deadline for most changes.
[…]
The proposed DNR rule, supported by Gov. Jim Doyle, would require large power plants (with a capacity of 150 megawatts or more) to either reduce mercury emissions by 90 percent or limit the concentration of mercury emissions to 0.0080 pounds of mercury per gigawatt-hour by Jan. 1, 2015.

Large plants could also choose an option of reducing nitrogen oxides and sulfur dioxide beyond federal and state regulations by 2015, in exchange for reaching the 90 percent mercury emission cut by 2021.

Smaller power plants would have to reduce mercury emissions to a level defined as best available control technology, also by Jan. 1, 2015.

Oceana and Olin Corp Battle Over Hiwassee River Mercury Contamination
At one of the few remaining Chlor-Alkali plants left in the country (over 100 others have already switched away from mercury in their process), Olin Corp. continues to resist the change. The plant boasts millions of dollars spent combating mercury emissions yet remains a holdout when almost every other plant of its type has switched.

Oceana has fought a very successful battle with chlor-alkali plants around the country and has shown many of them that they actually can save operating dollars for years to come after investing in the switch.

Excerpts from the Cleveland Daily Banner follow;

Oceana is dedicated to protecting and restoring the world’s oceans. It is actively engaged in urging Olin Corp. to switch from mercury cell technology to non-mercury technology.

Olin Plant Manager Tom Tirabasi said the Olin Chlor Alkali Products Charleston Plant is carefully operated to protect the health of the community, employees and environment.

“The fact remains that if we converted to non-mercury technology even though we meet or do better than all government regulations, we would be forced to dismantle most of the plant and rebuild it, interrupting production and impacting the lives of people in this area. Our commitments to health, environmental performance and continuous improvement already protect this community. That is our top priority.”
[…]
Oceana Marine Scientist Kimberly Warner has specialized in studying mercury pollution the past eight years in her work for Oceana. She said power plants are the largest sources of the neurotoxin, Olin’s Charleston plant is the single largest source in Tennessee.

While she expressed no doubt Olin is a good corporate citizen, she said Wednesday evening during a public forum in the Bradley County Courthouse it only makes sense the company is the culprit.

Warner’s study of the Hiwassee shows mercury levels in river sediments are highest directly below Olin’s outfalls and remain elevated downstream compared to upstream. Small fish do not travel as far as top-feeding fish such as largemouth bass. Mercury levels in small prey fish are highest directly in front of the plant compared to upstream and farther downstream. Levels of mercury in game-sized largemouth bass are highest at sites nearest the plant where they exceed the EPA methylmercury safe level.