Thursday, March 27, 2008

Monday's CAMR Appeal Catches Everyone By Surprise

I follow mercury legislation pretty closely. When the three judge panel of the DC Circuit Court of Appeals vacated the Clean Air Mercury Rule (CAMR) on Feb 8th I asked in my column headline, What's Next? I considered an appeal en banc, asking the full court to rule. I even considered an appeal to the Supreme Court. I speculated that neither appeal would happen because the panel of judges in the initial ruling, a) included judges deemed both pro environment and pro business, b) the ruling was unanimous and swift, and c) the language in the opinion was very strong and critical of the EPA's positions.

It seemed the die was cast, the EPA and the country were going to move toward a MACT standard for mercury. In support of that prognosis the same Court, on March 14th, fully 2 weeks ahead of schedule, granted petitioners request for issuance of a mandate in the CAMR case. This mandate all but sealed the deal. It seems the operative words in that last sentence are "all but".

As proof this last minute appeal on behalf of the EPA by the DOJ caught everyone by surprise I refer you to the website of a respected industry consulting group RMB Consulting and Research. RMB consults for, amongst others, the Utility Air Regulatory Group (UARG), who simultaneously with the EPA appeal, asked the Court to reconsider the Feb 8th ruling. However, right on the RMB site (removed as of 3/28) it states (said) in bold letters CAMR is Officially Dead (3/19/08). I point this out not to jab at RMB, hardly, they are a well respected and plugged in consulting group. I point it out because apparently not even they knew this appeal was coming. They do (did) point out in their post that a petition for rehearing was still possible and if granted would recall the mandate, but the headline they chose was more in line with what we all were thinking.

It is unclear to me whether the petition for rehearing has been granted. We will know more in a few days. But you have to feel for the utilities who seem to be going up and down like yo-yos as this all plays out in the courts. I'll try to keep you on top of this story as it unfolds.

Wednesday, March 26, 2008

CAMR Ruling Appealed by DOJ at the Last Minute

In what some may call a surprise move the Department of Justice on behalf of the Bush administration and the EPA has filed a last minute appeal of the Circuit Court of Appeals Feb 8 ruling that struck down the CAMR (Clean Air Mercury Rule) and its mercury cap-and-trade program. They have asked the full Court of Appeals to reconsider the ruling that went in favor of New Jersey, 16 other states, several environmental groups, tribes, and some health associations.

Because the ruling by the three judge panel was unanimous and so decisive, using very strong language in rejecting EPA's case for delisting, it seemed unlikely an appeal would follow. But EPA is not going down lightly on this one and is seeking a broader opinion of the case to see if it will result in a more favorable decision.

An excerpt from an AP article is below;

The Justice Department, in seeking a review of the decision, argued in a filing late Monday that the three-judge panel misinterpreted the federal clean air law and required "inappropriate and unnecessary emissions standards for power plants."

It maintained the ruling would needlessly delay mercury emission reductions by forcing the EPA to abandon its 2005 regulation that calls for a 70 percent cut in mercury releases over the next decade.
Separately, a group of electric utilities also filed a petition with the full appeals court, asking for a review. The Utility Air Regulatory Group, argued that the EPA has the discretion to regulate emissions in a way it considers necessary and appropriate.

The group includes electric generating companies and trade associations representing power companies and coal interests.

And so on it goes.

Wednesday, March 12, 2008

I'm Back, and the Discussions About Mercury Have Never Been Hotter

I took a short golf vacation to Hilton Head last week and upon my return found things were still abuzz since the Feb 8 Appeals Court Decision.

The Debate Rages On
The implications of the ruling were the topic of interviews by Monica Trauzzi on E&ETV's OnPoint with John Walke of NRDC and Jeff Holmstead a former EPA official and now lobbyist for Bracewell & Giuliani (as in Rudi Giuliani), a lobbying group specializing in concerns of the electric utility industry. I think both men state their cases quite eloquently, but somewhat diametrically opposed. Interesting listening.

The John Walke transcript and video from March 5th can be found here.

The Jeff Holmstead transcript and video from March 12 can be found here.

Cement Kiln Crackdown?
Elsewhere, the EPA seems to be revisiting its rules regarding cement kiln mercury emissions. In an AP article by John Flesher it is discussed how Michigan and eight other states have forced the issue with a lawsuit. But is EPA really responding or are they simply delaying any decision until the current administration is gone. The following excerpts from John's column will show you what I mean.

Whether the U.S. Environmental Protection Agency changes the rules will depend on test results of technology that could reduce the emissions, spokesman Dale Kemery said Thursday.

But an environmental law firm that has battled the EPA for a decade over the matter said the agency promised in a court filing last month to set standards it previously had resisted.

"They've turned 180 degrees," said James Pew, attorney for Earthjustice, based in Washington, D.C.
The agency in December 2006 set limits on mercury and hydrocarbon emissions from cement kilns built after Dec. 2, 2005. But for kilns built earlier, the EPA imposed lesser requirements.

The states sued in February 2007, saying the federal Clean Air Act requires mercury emission limits for all plants, not just new ones.
In a motion filed last month with the U.S. Court of Appeals in the District of Columbia, the EPA asked for more time to gather and analyze data from cement plants.

Peter Tsirigotis, director of the EPA division working on the standards, told the court in a written statement that he expected the agency to issue a proposed regulation by mid-September and a final version nine to 12 months afterward.

Well that ought to get the ball rolling.

More on this subject in an Earthjustice Press Release on CommonDreams News Center;

Under intense pressure from states and local and national environmental and public health groups, the U.S. Environmental Protection Agency announced in a recent court document plans to regulate mercury pollution from over 100 cement kilns across the country by September 2009. The announcement marks a dramatic shift in EPA policy which, until now, had been to resist requiring mercury controls for cement kilns.

"After nearly a decade of litigation and multiple court orders directing EPA to regulate mercury from cement kilns, it seems the agency is finally paying attention," said Earthjustice attorney James Pew.

Three times in the last ten years, federal courts have ordered EPA to set emission standards to control cement kilns' mercury emissions. Until now, EPA has ignored these orders or sought to evade them. EPA finally indicated that it would set mercury emission standards in papers filed on February 20, 2008, in a fourth case brought by Earthjustice on behalf of Sierra Club, Downwinders at Risk (TX), Friends of Hudson (NY), Montanans Against Toxic Burning, Desert Citizens Against Pollution (CA), and the Huron Environmental Activist League (MI). The States of New York, Michigan, Connecticut, Illinois, Maryland, Delaware, Massachusetts, New Jersey, and Pennsylvania also filed suit.

"Cement kilns are among the nation's worst polluters, and their free ride on mercury pollution needs to end at long last," said Jane Williams, executive director of Desert Citizens Against Pollution.

Maine Judge Seeks More Information on Penobscot River Mercury Pollution
A retired chemical plant HoltraChem owned and operated by Mallinckrodt had deposited significant amounts of mercury containing sludge into the Penobscot river for decades. The long battle and millions of dollars later we still do not have a solid plan for remediation, or even if remediation is possible. Excerpts from the Bangor Daily News follow;

Senior U.S. District Judge Gene Carter concurred last week and has directed the court-appointed research team to conduct more detailed studies into whether it is better to attempt to remove the mercury — likely at enormous costs — or let nature take its course.

"The court is fully satisfied … that the Penobscot River, north of the Fort Point Light, is contaminated with significant quantities of mercury deposited at the HoltraChem site," Carter wrote in his March 7 ruling.

Carter’s decision is the latest in a string of recent legal defeats for the former owners of now-defunct HoltraChem. Attorneys for the company, Mallinckrodt Inc., had sought in court filings to delay beginning the next phase of the study.

Mallinckrodt officials pointed out Tuesday that the company has already spent more than $30 million to clean up the manufacturing site in Orrington. The company has worked cooperatively with state and federal environmental agencies on that ongoing project.

Monday, March 3, 2008

Impacts of the Vacated CAMR

I promised to keep up to date on fallout from the recently vacated CAMR. It is my understanding that EPA has until the 24th of March to decide if it wants to appeal the Appellate Court ruling, so until that time we are still in some state of limbo.

Environmental Groups Rally Around Ruling
But that is not stopping environmental groups from using the ruling to now add mercury to their fight against permitting new coal burning power plants. Mercury was always an issue but has recently taken a back seat to Greenhouse Gases. At least for now with the courts siding with MACT as the correct avenue for mercury regulations, previously permitted plants and ones close in the process are now facing new hurdles to clear in their path. An excerpt from a Forbes article on the subject follows;

But for now, as lawmakers wrestle with how best to regulate greenhouse gas emissions, the plant's opponents are focused instead on a few dozen pounds of mercury as they fight to keep it from ever coming online.
'It does give environmentalists another tool, another hook to use when arguing that it's time to phase these things out,' said Scott Edwards, a lawyer for the New York-based environmental group Waterkeeper Alliance. 'And the law gives us that argument. And public health gives us that argument. And ecological and aquatic health gives us that argument.'

Duke's new $2.4 billion generator, at its existing Cliffside Steam Station about 50 miles west of Charlotte, is among more than 20 coal-fired plants now under construction nationwide.

While the rate of construction is the most in more that two decades, environmentalist say they have already helped delay or completely block nearly 60 other projects.

An article in EarthTimes, picked up from PRNewswire, echoes the conclusions drawn by NRDC on the impacts the Feb 8th ruling is having on plant construction across the country. Some pieces from that article follow;

The prospects for 32 coal-fired power plants in 13 states have been shaken up in the wake of a February 8, 2008 federal appeals court ruling that requires each new coal-fired power plant in the U.S. to adopt stringent toxic air pollution control measures meeting the most rigorous standards under the Clean Air Act, according to the Natural Resources Defense Council (NRD).

The states identified with the most coal-fired power plants now up in the air are: Michigan (four), Wyoming (four), Illinois (three), Nevada (three), Ohio (three), Pennsylvania (three), Texas (three), Iowa (two), Kentucky (two), Louisiana (two), Georgia (one), New Mexico (one) and North Carolina (one).

The ruling will impact various aspects of three dozen or more coal-fired power plants, including some now already under construction.

Major coal-fired power plants impacted by the ruling include: LS Power White Pine (1500 MW - permit pending in Nevada); Sierra Ely (1500 MW - permit pending in Nevada); Toquop (850 MW - permit pending in Nevada) Desert Rock (Sithe Global's 1500 MW in New Mexico); Longleaf ( LS Power's 1200 MW Plant in Georgia); Cliffside (Duke Energy's 800 MW Plant in North Carolina); Alliant Marshalltown (600 MW - permit pending in Iowa); LS Power Waterloo (750 MW - permit pending in Iowa); AMP (1000 MW - permit challenged in Ohio); LS Power/Dynegy (750 MW in Michigan). For a complete list of all 32 plants, go to

Natural Resources Defense Council Clean Air Director/Senior Attorney John Walke said: "The February 8th court ruling will have far-reaching consequences for coal-fired power plant construction, permitting and pollution controls. This important new legal tool will increase the pollution control obligations for new coal-fired power plants, raise the already considerable expense of these projects, and add to the weight of arguments that the public deploys to oppose conventional coal-fired plants."

Wisconsin DNR Mulls New Mercury Timetable
The WI-DNR may make a trade-off with utilities. They are proposing to extend the deadline for 90% mercury reduction if the utilities will reduce acid rain gases even further. The controversial compromise has received both favorable and critical comments. A few excerpts from the Milwaukee Journal Sentinel follow;

State regulators will propose a new plan this month giving utilities more time to cut mercury emissions from power plants if they make reductions in a pair of other key pollutants
The DNR has called for a 90% cut in the past. But the agency also is offering an inducement for utilities to delay compliance from 2015 to 2021 if they also make reductions in sulfur dioxide and nitrogen oxide.
As the public weighs in, a key business group will complain that the change will lead to higher electricity prices. One environmental group likes the approach, while another says it doesn't go as far as neighboring states. And one large utility thinks a national plan is better than a state approach.
Keith Reopelle, program director for Clean Wisconsin, said his group believes the DNR's latest proposal has merit. He said utilities' claims about the technology needed to make big cuts in mercury are no longer valid.

He cited data from the Institute of Clean Air Companies of Washington, D.C., showing 82 projects making substantial reductions in mercury.

But environmental groups are split on the issue. The Sierra Club believes Wisconsin is moving too slowly. Eric Uram, conservation chair of the club's John Muir chapter, said Illinois will move to a 90% reduction by 2012.

"It's not far enough; it's not fast enough," Uram said.

Milwaukee-based We Energies declined to comment on the proposal until it has a chance to study it.

A spokesman for Madison-based Alliant Energy, which operates in several Midwestern states, said a state rule should follow a federal rule. Spokesman Rob Crain said Alliant thinks that after the defeat in federal court, the EPA will move quickly with another federal mercury rule.

EPA Unionized Workers Voicing Concerns
Union leadership representing more than 10,000 EPA employees have just withdrawn their cooperation with politically appointed leadership. The recent EPA refusal of the California waiver on GHGs and the Feb 8th Circuit Court ruling on CAMR have emboldened (gotta love that word) rank and file members against what they feel has been a disservice to their service. An AP article details some of their concerns;

Nineteen union local presidents representing more than 10,000 Environmental Protection Agency employees signed a letter to Administrator Stephen L. Johnson last Friday accusing him of "abuses of our good nature and trust."

Under Johnson's leadership EPA has ignored jointly developed principles of scientific integrity "whenever political direction from other federal entities or private sector interests so direct," the unions charged.

Asked for comment, EPA spokesman Jonathan Shradar said only: "As a 27-year career EPA scientist, the administrator values the expertise and advice of his staff and will do so through his time in leadership."

The letter cited the California greenhouse gas waiver denial and several other issues, including mercury emissions from power plants.
"EPA boasts of the principles of scientific integrity before the Congress and the public as an example of EPA's dedication to using only good science in its decision-making, but refuses to agree to an adjudication process for resolving disputes arising from alleged violations," says the letter, released Monday by Public Employees for Environmental Responsibility.
Evans said that the purpose of the Clinton-era National Labor-Management Partnership Council was for senior agency officials and workers to deal with workplace and other issues before the decision stage.

Instead, "what we found is decisions are being made and they're being presented to us," said Evans.

The union leaders told Johnson they'd be suspending involvement in the partnership council "until we receive from you a clear commitment and specific direction."

To most casual observers and certainly to those paying any attention at all it is a surprise it took so long for the rank and file EPA employees to step up and voice these concerns. I know EPA has lost a lot of talent in the last seven years but the union leadership has been very quiet to this point. Looking out for the job security of some 10,000 dues paying members will do that I suppose.