The Die is Cast - 2 Years to Cleaner Air

Anyone who has planned a wedding or a large conference knows how fast time can fly. While two years may sound like a long time away, it is, in "big plan" terms, coming at us very fast. Big plans take time to make and get right. Hopefully the EPA has not been wasting the last 19 years because they have just agreed to complete in two what should, under normal circumstances, take longer.

If a Federal Judge accepts the terms of a consent decree announced today the EPA will have two years to have new rules in place regulating air toxics, including mercury and soot, from coal and oil fired EGUs. November 16, 2011 is the deadline for these new rules.

It is fair to say that this EPA, the one in place at this time, is not the one(s) that have frittered away the last 19 years since the Clean Air Act Amendments of 1990 stipulated air toxic regulations for large sources. It is also fair to mention that this EPA has already begun the processes involved in getting this accomplished. They have circulated an IRC or information request to several utilities seeking information and have sought comments to proposed rules to guide them in their rule making. In fact the comment period for the initial proposed rules was closed 53 days ago and we can only assume they have reams of comments to go through before any news will come forward.

The task at hand is further complicated by the fact that sound proven measurement methods have not been developed yet to insure compliance with many of the regs with which they may come out. But those test methods, and alternative means of compliance, are also being hotly pursued and debated. So while nothing concrete has happened in 19 years regarding air toxics emissions, several parallel paths have been forged in expectation that someday the laws of the land would be followed.

These parallel paths and the steps being taken by EPA in pursuit of this goal will be the focus of this sight going forward. CAMR is dead, long live the new CAMR.

Its A Whole New Ballgame

I have taken a long respite to gather my thoughts and decide where I want to go with this blog. The original intent was to follow the federal CAMR and the individual States laws pertaining to compliance with it. Since we all know the CAMR was vacated and all attempts to resurrect it have been dropped it presented a fork in my road.

I could either stop blogging on Mercury Emissions or refocus the effort on what legislation is now moving through the halls of EPA. After much debate, all between me myself and I, I have decided to continue on and follow the mercury emission news. This broad decision still needed refining. One thing I learned in blogging on "All Things Mercury" is, there are many fronts on which the battle against mercury in our environment is being fought.

There are daily articles on mercury in CFLs, mercury in dental amalgum, mercury in immunization shots, mercury from crematoria, mercury in automobile switches, mercury in fish, mercury in old lab instruments and even mercury in High Fructose Corn Syrup. This extensive coverage of mercury in the news seems to be getting enough coverage that I am going to leave it to others to report on those issues. I of course have opinions on all of them and they are all important topics, but it is my biggest interest to cover mercury emissions and mainly those emissions from large smoke stacks like those found in coal fired utilities, cement plants, incinerators etc.

With that in mind we will be picking up on the Utility MACT process which includes, among many other things, mercury from coal fired EGUs. We'll follow the EPA regulations relating to cement plants, an industry that has long been a battlefront between environmentalists and EPA regarding mercury emissions and now is in the crosshairs of the new administration. I hope to also cover the final stages of mercury being totally eliminated from the chlorine production process at the last few chlor-alkali plants left in the nation still using the antiquated process, shame on them for continuing to needlessly poison their communities.

I apologize for leaving my post for so long, but I needed to regroup, recharge and refocus. I believe I have done that and feel I am back and ready to follow the exciting world of mercury emissions.

I Told You So

It is fun being the Supreme Court. It was not difficult to forecast the ruling in the case Utility Air Regulatory Croup vs. New Jersey, 08-352. The groundwork on which it laid was quicksand at best. The idea of delisting EGUs from HAPs concerns and ultimately trading toxic mercury credits was absurd from the beginning. It is a shame it has wasted almost 5 years of the country's time, as well as deferred important decision making by responsible utilities to curb these hazardous emissions. It appears we will now move unfettered into rule making on this subject, but it will probably take a year or more to get final resolution. It was delay, delay from the beginning, we should delay no longer.

An article from CNN Money follows with details;

US Supreme Court Won't Hear Power Plant Case

WASHINGTON -(Dow Jones)- The U.S. Supreme Court on Monday rejected a bid by a group of utility companies and industry trade groups to save certain Bush administration regulations on power plants.

The high court's move was not a surprise because the Obama administration recently abandoned the federal government's Supreme Court appeal in the same case. Lawyers for the new administration instead said the Environmental Protection Agency would abide by a lower court ruling that threw out a Bush-era EPA rule that sought to "delist" mercury from a list of pollutants the agency is required to control at each power plant.

The Bush administration plan sought to create an emissions trading market under which power plants, starting in 2010, would have to buy pollution credits instead of actually cutting mercury emissions.

Coal-burning utilities such as American Electric Power Co. (AEP), Southern Co. (SO), and Duke Energy Corp. (DUK) had lobbied for the plan so they would have the flexibility to decide how to produce the cheapest mercury reductions. To create the market, the EPA had to reverse a Clinton administration finding that mercury pollution from coal-burning power plants is a "hazardous air pollutant" under the Clean Air Act.

The U.S. Court of Appeals for the District of the Columbia Circuit threw out the Bush administration's plan in February, 2008.

The Supreme Court on Monday let that ruling stand without comment.

The case is Utility Air Regulatory Group v. New Jersey, 08-352.

-By Brent Kendall, Dow Jones Newswires; 202-862-9222; brent.kendall@ dowjones.com

"The time for action on (mercury) pollution is now." - UNEP chief Achim Steiner

There has been years of talk, the time for action has come. When the US reversed course earlier this week and supported a global treaty on mercury emissions, a window of opportunity was opened and it appears that 140+ nations are ready to jump through.

The following is an AP article released earlier today. There is a much more detailed summary of what took place today in Nairobi today on the UNEP site here.

States agree to mercury treaty talks

NAIROBI (AFP) — More than 140 countries agreed Friday to launch negotiations establishing a treaty on mercury to limit pollution affecting millions of people across the world, the UN environment body said.

They also agreed an interim plan to curb pollution while awaiting the treaty because "the risk to human health was so significant that accelerated action... is needed," the United Nations Environment Programme (UNEP) said in a statement.

"Today we are united on the need for a legally binding instrument and immediate action towards a transition to a low-mercury world," UNEP chief Achim Steiner said at the end of the body's governing council meeting in Nairobi.

He added that world ministers who attended the week-long meeting "decided the time for talking was over. The time for action on this pollution is now."

The interim plan includes boosting countries' efforts on safe stockpiling of mercury, reducing supply and use among artisanal miners as well as reducing mercury in products such as thermometers.

Mercury is a heavy metal whose highly toxic compounds -- propagated notably by the production of coal, certain kinds of plastics and improper disposal of fluorescent light bulbs -- poison millions of people worldwide.

Fish-eating is the prime source of exposure among humans. The effects of mercury ingestion include damage to the brain, kidney and lungs.

It feels good to be viewed as a global leader again. Although in this case 140+ nations had to drag us along until we finally changed our own leadership. But let's stop talking and start acting.

Still On Life Support? No! CAMR Is Dead, Let It Go Already

I have declared the death of CAMR a couple times during the last year, most recently in a Dec 4 post. I acknowledged the Obama administrations withdrawal of the Bush EPA's motion earlier this month and did not declare CAMR's death again specifically at that time because I was getting tired of doing so. But now, should I have to acknowledge reports of a faint pulse somewhere deep in the imaginations of some utility die hards? No!

I will make it easy for the Supreme Court of the United States; Its over! The recent petition from the UARG should not be heard. Even if the DC Circuit Court ruling last Feb 8th had some errors in it, which all rulings probably do, it was ruling on an illegal rule in the first place. Go back to its inception, the CAMR was illegal. You can't delist EGUs haphazardly and you can't cap-and-trade a toxin. So forget it!

A posting by Lyle Denniston from the SCOTUS Blog follows;

Move to keep mercury pollution case alive

A group of electric utility companies and industry trade groups has urged the Supreme Court to go ahead and review a major mercury air pollution case even though the federal government no longer favors that review. In a letter filed with the Court Feb. 12, the Utility Air Regulatory Group contended that its pending case would not be affected even if the separate government case is dismissed.

The two petitions — Utility Air Regulatory Group v. New Jersey, et al., (08-352), and Environmental Protection Agency v. New Jersey, et al. (08-512) — were filed last fall, urging the Justices to overturn a D.C. Circuit Court decision on EPA’s duties in reducing mercury emissions from power plants. Both contended that the Circuit Court was wrong in limiting EPA’s authority to remove power plants from a list of sources that must have their mercury emissions reduced to the maximum extent. EPA had not taken the steps that the Circuit Court said it must before de-listing power plants from that category.

On Feb. 6, the new Obama Administration asked the Court to dismiss EPA’s petition, indicating that it would make the findings that the Circuit Court said it must. (A post discussing the motion to dismiss can be read here; the post includes a link to that motion.)

The alliance of power companies and trade groups had already prepared its reply brief in its case before the EPA made its move for dismissal. It subsequently filed its views in a letter to the Clerk, arguing that dismissal of 08-512 “would not in any way moot the petition filed by UARG.”

It noted that the EPA had previously argued that the Circuit Court ruling contained “fundamental legal errors” that would raise “substantial practical harms.” The change of mind by the new Administration, it added, would deprive the EPA of “an important regulatory tool” under the Clean Air Act.

The government, in urging dismissal of its case, mentioned the utility group’s separate case, but made no recommendation to the Court on what should be done with that petition.

Where Bush Ignored The Problem, Obama Team Plans On Leading Global Fight Against Mercury

In a complete turnaround of US policy.

Some excerpts from an AP article, and the AP photo by K. Senosi.

Daniel Reifsnyder, the deputy assistant secretary of state for environment and sustainable development, told a gathering of global environmental ministers in Nairobi, Kenya, that the US wants negotiations on limiting mercury to begin this year and conclude within three.

"We're prepared to help lead in developing a globally legally binding instrument," he said. "It is clear mercury is the most important global chemical issue facing us today that calls for immediate action."

The statement represented a "a 180-degree turnaround" from policy under the Bush administration, said Michael Bender, co-coordinator of the Zero Mercury Working Group, a global coalition of 75 environmental organizations working to reduce mercury exposure.

"The change is like night and day. The Bush administration opposed any international legal agreements on mercury and President (Barack) Obama is in office less than one month and is already supporting a global agreement," he said.

Bender said his group has had more discussions over mercury control in the past two weeks than they have in the last eight years and that the U.S. government included many of their ideas in the proposal they are presented in Nairobi.
[...]
A U.S.-drafted proposal obtained by The Associated Press would form a negotiating committee in conjunction with the U.N. environment program to help countries reduce their mercury use, clean up contaminated sites and find environmentally sound ways to store mercury. The European Union has already banned mercury exports starting in 2011. The U.S. has a similar ban that will be effective 2013, legislation that was sponsored by Obama when he was a U.S. senator.

Advocacy groups that have been working on getting such a global pact passed welcomed the U.S. policy change, saying it could encourage other countries such as Canada to make a similar change. Bender said mercury levels in the world had increased two to three times over the past 200 years.

"Given that the United States has pushed the door of resistance in a sense, that will lead others to follow," said Susan Egan Keane of the Washington, D.C.-based Natural Resources Defense Council.

It is actions like these that make me proud to have supported the change we Americans have initiated. It is actions like the ones in the other post today that remind me we have a long way to go.

There is another good article on this subject from Environment News Service here. Change is a coming.

Idaho Board of Environmental Quality Folds Under Industry Pressure

In a state that doesn't even have a single coal fired EGU, the Idaho Board of Environmental Quality caved in to an industry lead attack on its request for a voluntary program for mercury emission reductions. Idaho, a state that pushed hard to get neighboring Nevada to control mercury emissions from their gold mining operations, can't find the backbone internally to support a voluntary program. Seems sort of strange to me.

A reprint from an Idaho Statesman article quoting a post by blogger Rocky Barker follows;

In a cloud of uncertainty, the Idaho Board of Environmental Quality backed off its efforts to strengthen rules to regulate industries that emit mercury into the air.

The board voted down a motion Feb. 12 that would have asked industries to voluntarily (emphasis added) install the best available technology for removing mercury from their smokestacks under a well-coordinated lobbying effort by the Idaho Association of Industry and Commerce, the Idaho Council on Industry and Environment and Monsanto Corp., whose P4 phosphate plant in Caribou County in Southeast Idaho is the state's largest mercury source.

The industry groups rolled over the Idaho Conservation League, which had petitioned to get the board to regulate mercury in the state in an effort to combat the pollutant that accumulates in fish and can cause brain damage and learning disabilities in babies and young children. The ICL and its program manager Justin Hayes had successfully led the effort to get the state of Nevada to require gold mines in that neighboring state to restrict much higher mercury emissions after studies showed that winds were carrying the neurotoxin into Idaho and that at least one reservoir, Salmon Falls Creek south of Twin Falls, had high mercury levels.

Hayes had convinced federal and Nevada officials that their voluntary program was allowing miners to pump thousands of pounds of mercury into the air. Today, Nevada has one of the strongest mercury abatement programs for mines in the world.

But the case for regulation was not as clear in Idaho, and the industry groups were far more sophisticated about exploiting the uncertainty in the science.

They hired one of the world's top mercury pollution experts, Steve Lindberg, a retired environmental chemist from Oak Ridge National Laboratory in Tennessee. He has helped develop mercury rules for states and the EPA and has worked on both sides of the issue throughout his career.

He said in a report and a presentation to the board that the science linking a source like the P4 plant to high mercury levels in fish in nearby reservoirs was not yet clear enough. He raised questions about whether atmospheric mercury pollution was as serious a problem in the American West as it is in the East, where there is more rain and more wet deposition of the pollutant.

And he even raised doubts, based on yet unpublished research, that the high mercury levels in Salmon Falls Creek Reservoir were linked to the massive mercury pollution that had come from the mines in Nevada before they were regulated.

Previously, the board had heard from U.S. Environmental Protection Agency experts that models showed a source like the P4 plant could be linked to the elevated mercury levels in nearby lakes. But even Hayes acknowledged that science was not yet clear.

He urged the board to put in place regulations that would limit mercury pollution, especially in new sources. The current regulations are aimed at keeping mercury inhalation by workers and people near a plant low. But they allow a company to emit huge levels of mercury, as much as 100,000 pounds, which all agree would be harmful to the state's aquatic systems.

But the P4's emissions, at 600-700 pounds, are far below such numbers. They still are higher than coal-fired power plants. Its officials say they have erred on the high side of their estimates because EPA reporting requirements have high penalties for reporting below actual emissions.

And Monsanto says its scrubbers for other pollutants have reduced mercury emissions. It proposed that the state use water quality regulations to control mercury levels in lakes instead of air regulations.

"This confusion and uncertainty makes it hard for us to make rules," said Nick Purdy, a board member from Picabo.

So the state's flawed rules - even by Lindberg's opinion - stay in place for now.

It is situations like this where local industry groups fight a local regulation because they can shed doubt on its local effects that scream for Federal action. No one denies that mercury emissions, like the 600 - 700 pounds per year coming from the Monsanto plant are adding to the global problem of mercury emissions; they simply say our emissions aren't necessarily effecting our waters and thus our citizens, so we should not regulate them. Damn everybody downwind, and oh, by the way, let's get tough with everybody upwind of us and get them to regulate, but not us. What a joke.

Feds Action Signals National Effort; Meanwhile States Struggle In The Void

The Obama administration took official steps to withdraw a motion made by the outgoing Bush administration for the Supreme Court to re-reverse the Court of Appeals ruling on the CAMR. This is no big surprise as Obama has long been a strong voice against mercury in our environment and its effects on public health. The interesting story here is while the Feds move, and move slowly, as only the Feds can do, States such as Pennsylvania and Kansas are left to grapple this issue out in their courts and legislatures.

From my perspective all this is crying for national leadership, and hopefully Obama can deliver. The Pennsylvania scuffle would be moot if the State hadn't been forced into dealing locally with a problem that was poorly dealt with nationally. The Bush CAMR was illegal from its inception and public health caring states were forced to act on their own. Now since the Federal CAMR was vacated last February, state rules are being tied, rightfully or not (and NOT in my mind), to a vacated rule. Ultimately leaving citizens unprotected, even in states who intended to protect them.

And, I am not a lawyer but this Kansas fiasco appears more onerous to me. From the sounds of it, even if a Federal law is passed the KDHE would have to fight county by county to enforce it. That can't be right, but its what it sounds like in Ms. Sethi's (Kansas) article, excerpts below.

Let's stop all the delay tactics and stop all the partisanship and get down to making rules that protect our citizens, all of them, with sound legislation based of the Clean Air Act and all of its intentions, as delivered from the US Congress and signed into law. It sounds easy enough to me, but then I am not a lawyer.

I'll put up a little info from the Fed action and then some from the battles in Pennsylvania and Kansas that seem to be dominating the mercury headlines lately.

Federal Action
From the AP.

WASHINGTON (AP) — President Barack Obama is reversing a previous Bush administration effort on pollution, pulling back legal arguments in a lawsuit over mercury.

The case was soon to come before the Supreme Court. The Obama administration submitted papers Friday to the court asking for the appeal to be dismissed.

An appeals court last year rejected a Bush administration plan for regulating mercury emissions. It said the plan should not have included allowing utilities to purchase emission credits instead of actually reducing emissions.

Scientists fear mercury pollution leads to neurological problems in infants.

The power industry still has a separate petition challenging the appeals court ruling, which is unaffected by the Obama administration's action.

More from Bloomberg.com

The Obama administration withdrew a U.S. Supreme Court appeal filed by the Bush administration and said it will comply with a court ruling governing mercury emissions from coal- and oil-fired power plants.

A federal appeals court last year ruled that the Environmental Protection Agency erred when it decided to change the way it regulates those emissions. The agency had planned to remove plants from a list of polluters regulated under one section of the Clean Air Act and instead establish a “cap and trade” program.

“EPA has decided, consistent with the court of appeals’ ruling, to develop appropriate standards to regulate power plant emissions,” Acting Solicitor General Edwin Kneedler said in a court filing released today.
[...]
EPA Administrator Lisa Jackson said the agency’s decision will promote environmental regulation. “We are probably better off spending all of our resources making rules that will stick instead of fighting the courts,” she told reporters following an appearance at a conference in Washington.

Hopefully they will move on a national mercury rule soon.

Pennsylvania
Late last week a Commonwealth Judge in Pennsylvania, Dan Pellegrini ruled that the States mercury actions were unlawful, invalid, and unenforceable, and for all intents and purposes he tossed them out. An excerpt or two from the Pittsburgh Post Gazzette follow;

Commonwealth Court Judge Dan Pellegrini ruled Friday that the rule is unlawful, invalid and unenforceable, but the state Department of Environmental Protection has received legal approval from the state Office of General Counsel to file an appeal.
[...]
Pennsylvania's mercury rule was developed in 2006 after the U.S. Environmental Protection Agency proposed weakening federal mercury regulations. It requires the state's 34 coal-fired power plants to reduce mercury emissions 80 percent by 2010 and 90 percent by 2015 from 1999 emissions levels. It also prohibits mercury emissions "trading" that would allow older power plants to avoid installing expensive control equipment.

"Pennsylvania's mercury rule is the most effective and timely way to reduce mercury exposure," said Acting DEP Secretary John Hanger. "The ruling makes Pennsylvania's economy less competitive in the long run."

The federal rule, which itself was thrown out by the U.S. Court of Appeals for the D.C. Circuit last February, allowed the trading of mercury emissions credits and would have reduced mercury emissions 70 percent by 2018.

The Pennsylvania rule was challenged by Allentown-based PPL Corp., which has several coal-fired power plants in the state. The company argued that Pennsylvania cannot enforce its mercury rule because it is based on the federal mercury rule that was overturned last year.

Some more details, including link to station audio from the WHYY site are below;

A Pennsylvania judge shot down the state’s effort to reduce mercury emissions from coal-fired power plants. But the environmental department says the fight isn’t over. From WHYY’s health and science desk, Kerry Grens reports.
[...]
Transcript:
Pennsylvania’s emissions rule would reduce mercury pollution 90 percent by 2015.

Currently, the federal government does not have a reduction plan in place, but the judge ruled that the state could not pre-empt the EPA.

Energy company PPL filed the lawsuit.

George Lewis, PPL’s spokesperson, says the company has already spent more than a billion dollars on reducing mercury emissions.

Lewis:
Allowing Pennsylvania to implement its rule would have required PPL to spend millions of additional dollars on mercury control technology that may not have been acceptable under new EPA regulations that are forthcoming.

Lewis says if those new federal rules require the company to take action similar to the Pennsylvania rule, the company would comply.

DEP spokesperson Teresa Candori says the agency is disappointed by the judge’s ruling.

Candori:
Currently we are reviewing our legal options.

Candori says the Department will decide in the next few days whether to appeal the decision.

And of course a couple days later news of the States appeal of the Commonwealth Judges ruling was announced. From PRNewswire.com

Environmental Protection acting Secretary John Hanger said today the commonwealth has filed an appeal with the Pennsylvania Supreme Court seeking to overturn a recent state court opinion that declared Pennsylvania's Mercury Rule "unlawful, invalid and unenforceable."
[...]
"The Pennsylvania Mercury Rule is a well-crafted, cost-effective program designed to protect our citizens from exposure to mercury emitted by coal-fired power plants," said Hanger. "Our rule accelerates adoption of proven technologies that would protect public health and the environment."

Kansas

In what is becoming one of the hottest battles around, the Kansas legislature is trying to rewrite the laws, stripping the Dept. of Health and the Environment, and its Health Secretary, Bob Bremby, of their power to regulate industry (deny permits) based on air quality and public health concerns.

Even with upwards of 70% of the citezenry in favor of halting construction of 2 large coal burning plants at Sunflower Electric's Holcomb plant, or at least pursuing alternative energy options first, this conservative lead attempt shields it supporters from actually looking like they are for the construction permits to be allowed. This is some pretty slick legislation and there is a wonderful article by Simran Sethi on Huffington Post all about it. Some excerpts follow, but I recommend a more thorough reading of her post if you are interested in this particular showdown.

On October 18, 2007, Kansas made history. Health and Environmental Secretary Roderick Bremby made the landmark decision to deny permits for two new 700 MW coal-fired power plants proposed by Sunflower Electric, on the grounds that carbon emissions from the plants would negatively impact health. "After careful consideration of my responsibility to protect the public health and environment from actual, threatened or potential harm from air pollution, I have decided to deny the Sunflower Electric Power Corporation application for an air quality permit," Bremby said in the official press statement.

Let's be clear, this decision was a game-changer. In his ruling, Bremby stated it would be "irresponsible" to ignore the impacts of carbon dioxide and other greenhouse gases on global warming. It was the first time that climate change was cited in such a context, setting a precedent for other decisions of its kind across the nation. In response, Sunflower proposed three bills to the state legislature in 2008 that would have allowed the plants to be built, but all three were vetoed by Governor Kathleen Sebelius. Now, with the state legislature back in session, Sunflower is continuing their fight to expand the reach of big coal.
[...]
Just 5 weeks into the legislative session, Sunflower has already flooded the state Energy and Utilities Committee with over 40 "energy policy" bills. Though discussions of renewable energy have been included, most fail to take advantage of the state's renewable resources (Kansas is ranked 3rd in the US for greatest wind potential), and instead contain measures that would allow for the expansion of coal, including Sunflower's proposed plants in Holcomb.
[...]
This week, the Kansas legislature is debating Bill 2182. While the bill makes no mention of Sunflower Electric, carbon emissions, or the Holcomb coal plants, it would effectively strip Health Secretary Rob Bremby and the Department of Health and the Environment of their power to regulate industry based on air quality concerns, and therefore force them to grant the permits to Sunflower.

Because of high disapproval rates around the building of new plants, the predominantly Republican legislature has been wary of casting a strictly pro-coal vote. But according to Scott Allegrucci of the Great Plains Alliance for Clean Energy (GPACE), Bill 2182 "is cleverly written to allow some legislators who sustained the 2008 vetoes to vote for the coal plants this time, while giving them the ability to tell their constituents that they only voted for 'regulatory certainty,' not coal plants." In Wednesday's discussion of the bill, proponent Amy Blankenbiller of the Kansas Chamber of Commerce stated, "We are not here today to talk about environmental regulation, but to talk about due process, regulatory process."

Call it "due process" if you want, but the truth is that the bill's environmental repercussions are huge. What would it mean for Kansas if the bill is passed? Scott Allegrucci says, "It would certainly force the Holcomb plants to be given air quality permits; it would force KDHE to file action in local courts county-by-county if it wished to enforce federal Clean Air Act findings or rulings; and it would certainly open Kansas to future attempts by ANY polluting industry that wished to secure air quality permits and could afford to buy enough advertising or enough legislative votes to get their way."

And the rest of the nation would lose the first real stand of public heath officials and government against one of the nation's most polluting industries. Whether you live in New York or Nebraska, this ruling will either allow or limit your own state's ability to protect your health. You can follow the legislature's discussion at the Climate and Energy Project's blog, and on Twitter. To support the cause, shoot a friendly email to Lisa Jackson at the EPA, and let her know that Americans across the nation recognize the importance of this case.

Climate change is boundless. Whatever's the matter with Kansas will hit you, too.

Claims of Mercury In High Fructose Corn Syrup May Be Overstated; At Least Premature

I was posting on the chlor-alkali industry the other day and added an update that appeared in the literature that same day. I jumped on and added the bit about mercury found in HFCS without noting the research was preliminary and not up to scientific standards. I found a rebuttal post on another site, by Karl Haro von Mogel, on The Inoculated Mind, that I thought deserved to be aired.

I don't take back my contention that using mercury in chlor-alkali plants should be stoppped immediately (not just phased out), but I do want to give science its rightly place in the sunshine. So a couple excerpts from The Inoculated Mind follow;

In science you always.

Always.

Always use controls.

That is the very basis of science, for without a control running next to your experiment, you have no isolated variables, no conclusions that can be drawn from it, and no theories that it can support.

So when I was reading the Ethicurean, as I regularly do, I was simply flabbergasted at this post: Mercury in HFCS. Apparently, a research paper came out proclaiming that high fructose corn syrup (HFCS)-containing products had detectable levels of mercury. The explanation given was that HFCS is made using alkali soda, from plants that use mercury in the process of synthesizing it. (Except this has been for the most part phased out)

I took a look at the paper, and the first thing that I noticed was that it was not a peer-reviewed study. So this has not passed through the rigors of experimentation, review, re-testing if needed, and publication in a scientific journal.
[...]
The second thing I noticed was that the paper was mostly an argument about how unhealthy the American Diet is, and the big calorie baddie is HFCS.
[...]
The ’study’ itself consisted of taking samples of foods that contain high-fructose corn syrup and testing them for levels of mercury. Those foods and the brands that made them were in the report, and they found that some of the foods had detectable levels of mercury in them. What levels? Parts per trillion. These are really low levels. Drinking water has a limit of 2 parts per billion, which means that you can have 100 times as much mercury in drinking water as is in these foods. The tap water you use to make your oatmeal might have more mercury than the oatmeal itself.

Their conclusion was that the mercury came from HFCS, and made a list of recommendations about what should be done about this sciency conclusion. But wait, did they actually prove that the mercury came from the corn syrup?

No. In order to demonstrate this scientifically, you have to have controls. There’s no telling where the mercury came from without isolating the variables. Were the oats sucking up mercury in the soil? Were the cows that produced the chocolate milk they tested the actual source of the highest mercury levels they found in their survey?

The article goes on pressing the issue of not reporting unsubstantiated claims as science. It calls this practice "...Science By Press Release", of which in this case I was found guilty.

But Karl goes on to say;

For the record, I’m a big fan of Green Chemistry - changing industrial chemical processes to be more environmentally-friendly. If there are chlor-alkali plants that still use mercury somewhere, they should change their methods of synthesizing it, at least because it will reduce demand for mercury, and eliminate the concomitant emissions. But instant sweetened Oatmeal is not the right rallying cry. It reminds me of when Steven Milloy claimed that Fluorescent Replacement lights were toxic superfund-sites-in-the-home waiting to happen. Same deal, different politics.

Pennsylvania Judge Rules State Mercury Rule Unlawful

AP is reporting that Commonwealth Court Judge Dan Pellegrini has thrown out a two-year old rule that forced PA coal fired EGUs to reduce mercury emissions 90% by 2015. PPL Corp. challenged the rule saying it was based on the Federal CAMR which was struck down in the higher courts almost a year ago.

More on this can be found at Philly.com

Diagnosis: Mercury Author To Speak In San Francisco, Feb. 4

Dr. Jane M. Hightower, author of the recent book Diagnosis: Mercury Money, Politics & Poison, will be speaking at the San Francisco JCC on Feb 4 at 6:30PM. I haven't read the book yet but it looks like a pretty good resource on the subject of mercury in our environment. There is a little more information about this engagement at Enviroblog here. I wish I was in the Bay area to attend, maybe some others can report on it.

Dr. Hightower was one of the co-researchers that discovered how mercury is getting into our food supply through high fructose corn syrup, one of the hottest recent topics in mercury circles. Hg-ATME reported on this Tuesday in the post below this one in the update at the bottom of the post. This discovery has ignited a huge debate in food quality discussions.

Olin Corp. Invites Georgians To See What They Are Willing To Do For Others But Not For Them

(Interesting update at bottom)
I try to focus on mercury emission legislation and not report on individual plant issues but I have had a soft spot in my heart for the Oceana group and their fight to eliminate mercury from all chlorine manufacturing. So this story jumped out at me.

See older posts on subject here, here, here and here.

Olin has invited the folks living in the Augusta area to watch a program on the Discovery Channel about how cool they are making chlorine without mercury up in Niagara Falls, NY. They must have done this simply to rub Georgians' noses in it, because they refuse to employ the same technique in their Augusta plant. What are the people of Georgia to think about while they watch this show? "Gee, that is really neat how they don't pollute the water anymore up in New York."

A couple excerpts from a Blog called The Outsider at Augusta.com will explain.

Ever wondered how Olin makes chlorine? Next week’s Discovery Channel program, HowStuffWorks, features the company’s modern—and mercury-free—plant in Niagara Falls, N.Y.

“Because we have a production facility in your area, we believe local residents could be interested in watching,” said a news release sent to us this week from Olin’s corporate headquarters.

David Blair, Olin’s plant manager in Augusta, said the episode will help explain how the Niagara Falls plant uses salt brine and electricity to manufacture chlorine. “We want to encourage local residents to watch the Discovery Channel program.”

Olin isn’t the only organization that hopes Augustans will watch the show, which will air at 8 p.m. eastern time on Thursday, Jan. 29.

Jackie Savitz, senior campaign director at the environmental group Oceana, said the episode might help highlight differences between new chlorine factories that do not emit mercury and older ones—like Olin’s Augusta plant—that still use mercury.

“The Niagara Falls plant does not use mercury,” she said. “In fact, it’s a perfect example of our vision for Augusta.”
[...]
Ms. Savitz believes all mercury emissions associated with the chlorine industry should be eliminated. More than 95 percent of U.S. chlorine plants have converted to mercury-free technology, she said, and the only sites still using mercury today include Olin’s 43-year-old Augusta plant and three others in Tennessee, West Virginia and Ohio.

“They used to use mercury in Niagara Falls and they switched to mercury free. As a result, they are running a cleaner, more efficient plant, stabilizing the jobs and their place in the community,” Ms. Savitz said. “That is what we would like to see happen in Augusta.”

This kind of PR move blows my mind. Why call attention to your negligence in an area where it is most felt. I hope the folks in Augusta do watch the show, as well as everyone else, so we can pressure Olin and the other last holdouts to stop this unnecessary practice.

I want to thank Rob Peavy for bringing this to my attention.

UPDATE: Mercury from Chlor-alkali plants not only pollutes water, it potentially makes its way into our food products. I just found this (provisional) abstract on Environmental Health. Just more reason to stop using mercury in the production of chlorine.

Abstract (provisional)

Mercury cell chlor-alkali products are used to produce thousands of other products including food ingredients such as citric acid, sodium benzoate, and high fructose corn syrup. High fructose corn syrup is used in food products to enhance shelf life. A pilot study was conducted to determine if high fructose corn syrup contains mercury, a toxic metal historically used as an anti-microbial. High fructose corn syrup samples were collected from three different manufacturers and analyzed for total mercury. The samples were found to contain levels of mercury ranging from below a detection limit of 0.005 to 0.570 micrograms mercury per gram of high fructose corn syrup. Average daily consumption of high fructose corn syrup is about 50 grams per person in the United States. With respect to total mercury exposure, it may be necessary to account for this source of mercury in the diet of children and sensitive populations.

Lisa Jackson, Memo To The Troops

Lisa Jackson the new EPA Administator sent a memo to all EPA employees outlining her's and President Obama's plans for the coming years. Except for a few leftover appointees, I can't imagine anyone in the EPA not being thrilled to get this memo.

Full text of the memo follow;
Photo from NJBiz.



MEMORANDUM

DATE: January 23, 2009

TO: All EPA Employees

FROM: Lisa P. Jackson, Administrator-designate

I can think of no higher calling or privilege than rejoining EPA as your
Administrator. I am grateful and humbled that President Obama has given
me this honor. With his election and with my appointment, President
Obama has dramatically changed the face of American environmentalism.
With your help, we can now change the face of the environment as well.

During my 21 years in public service, I have witnessed firsthand the
dedication and professionalism of EPA’s workforce. Thousands of
committed, hard-working and talented employees for whom protecting the
environment is a calling, not just a job, have made EPA a driving force
in environmental protection since 1970.

EPA can meet the nation’s environmental challenges only if our employees
are fully engaged partners in our shared mission. That’s why I will make
respect for the EPA workforce a bedrock principle of my tenure. I will
look to you every day for ideas, advice and expertise. EPA should once
again be the workplace of choice for veteran public servants and also
talented young people beginning careers in environmental protection –
just as it was for me when I first joined EPA shortly after graduate
school.

In outlining his agenda for the environment, President Obama has
articulated three values that he expects EPA to uphold. These values
will shape everything I do.

Science must be the backbone for EPA programs. The public health and
environmental laws that Congress has enacted depend on rigorous
adherence to the best available science. The President believes that
when EPA addresses scientific issues, it should rely on the expert
judgment of the Agency’s career scientists and independent advisors.
When scientific judgments are suppressed, misrepresented or distorted by
political agendas, Americans can lose faith in their government to
provide strong public health and environmental protection.

The laws that Congress has written and directed EPA to implement leave
room for policy judgments. However, policy decisions should not be
disguised as scientific findings. I pledge that I will not compromise
the integrity of EPA’s experts in order to advance a preference for a
particular regulatory outcome.

EPA must follow the rule of law. The President recognizes that respect
for Congressional mandates and judicial decisions is the hallmark of a
principled regulatory agency. Under our environmental laws, EPA has room
to exercise discretion, and Congress has often looked to EPA to fill in
the details of general policies. However, EPA needs to exercise policy
discretion in good faith and in keeping with the directives of Congress
and the courts. When Congress has been explicit, EPA cannot misinterpret
or ignore the language Congress has used. When a court has determined
EPA’s responsibilities under our governing statutes, EPA cannot turn a
blind eye to the court’s decision or procrastinate in complying.

EPA’s actions must be transparent. In 1983, EPA Administrator
Ruckelshaus promised that EPA would operate "in a fishbowl" and “will
attempt to communicate with everyone from the environmentalists to those
we regulate, and we will do so as openly as possible."

I embrace this philosophy. Public trust in the Agency demands that we
reach out to all stakeholders fairly and impartially, that we consider
the views and data presented carefully and objectively, and that we
fully disclose the information that forms the bases for our decisions. I
pledge that we will carry out the work of the Agency in public view so
that the door is open to all interested parties and that there is no
doubt why we are acting and how we arrived at our decisions.

We must take special pains to connect with those who have been
historically underrepresented in EPA decision making, including the
disenfranchised in our cities and rural areas, communities of color,
native Americans, people disproportionately impacted by pollution, and
small businesses, cities and towns working to meet their environmental
responsibilities. Like all Americans, they deserve an EPA with an open
mind, a big heart and a willingness to listen.

As your Administrator, I will uphold the values of scientific integrity,
rule of law and transparency every day. If ever you feel I am not
meeting this commitment, I expect you to let me know.

Many vital tasks lie before us in every aspect of EPA’s programs. As I
develop my agenda, I will be seeking your guidance on the tasks that are
most urgent in protecting public health and the environment and on the
strategies that EPA can adopt to maximize our effectiveness and the
expertise of our talented employees. At the outset, I would like to
highlight five priorities that will receive my personal attention:

Reducing greenhouse gas emissions. The President has pledged to make
responding to the threat of climate change a high priority of his
administration. He is confident that we can transition to a
low-carbon economy while creating jobs and making the investment we
need to emerge from the current recession and create a strong
foundation for future growth. I share this vision. EPA will stand
ready to help Congress craft strong, science-based climate
legislation that fulfills the vision of the President. As Congress
does its work, we will move ahead to comply with the Supreme Court’s
decision recognizing EPA’s obligation to address climate change under
the Clean Air Act.

Improving air quality. The nation continues to face serious air
pollution challenges, with large areas of the country out of
attainment with air-quality standards and many communities facing the
threat of toxic air pollution. Science shows that people’s health is
at stake. We will plug the gaps in our regulatory system as science
and the law demand.

Managing chemical risks. More than 30 years after Congress enacted
the Toxic Substances Control Act, it is clear that we are not doing
an adequate job of assessing and managing the risks of chemicals in
consumer products, the workplace and the environment. It is now time
to revise and strengthen EPA’s chemicals management and risk
assessment programs.

Cleaning up hazardous-waste sites. EPA will strive to accelerate the
pace of cleanup at the hundreds of contaminated sites across the
country. Turning these blighted properties into productive parcels
and reducing threats to human health and the environment means jobs
and an investment in our land, our communities and our people.

Protecting America’s water. EPA will intensify our work to restore
and protect the quality of the nation’s streams, rivers, lakes, bays,
oceans and aquifers. The Agency will make robust use of our authority
to restore threatened treasures such as the Great Lakes and the
Chesapeake Bay, to address our neglected urban rivers, to strengthen
drinking-water safety programs, and to reduce pollution from
non-point and industrial dischargers.

As we meet these challenges, we must be sensitive to the burdens
pollution has placed on vulnerable subpopulations, including children,
the elderly, the poor and all others who are at particular risk to
threats to health and the environment. We must seek their full
partnership in the greater aim of identifying and eliminating the
sources of pollution in their neighborhoods, schools and homes.

EPA’s strength has always been our ability to adapt to the constantly
changing face of environmental protection as our economy and society
evolve and science teaches us more about how humans interact with and
affect the natural world. Now, more than ever, EPA must be innovative
and forward looking because the environmental challenges faced by
Americans all across our country are unprecedented.

These challenges are indeed immense in scale and urgency. But, as
President Obama said Tuesday, they will be met. I look forward to
joining you at work on Monday to begin tackling these challenges
together.

Sweden Moves To Ban Mercury

Sweden takes a leadership role in the outright banning of all mercury containing products. In my opinion this will be the wave of the future regarding mercury use. Other countries in the EU will follow first, several states in the US will attempt to follow suit and a US national ban will take quite some time. There are alternatives for almost every commercial use of mercury and although there will always be mercury in our environment it will not be spread through commercial use.

An excerpt from an article in EHS Today sheds some light on this decision.

The Swedish government recently introduced a blanket ban on mercury that will eliminate the use of dental amalgam fillings and prohibit products containing mercury in the Swedish market.

“Sweden is now leading the way in removing and protecting the environment from mercury, which is non-degradable. The ban is a strong signal to other countries and a Swedish contribution to EU and UN aims to reduce mercury use and emissions,” said Minister for the Environment Andreas Carlgren.

The government's decision means that products containing mercury may not be placed on the Swedish market. In practice, this means that alternative techniques will have to be used in dental care, chemical analysis and the chloralkali industry. The Swedish Chemicals Agency will be authorized to issue regulations on exceptions or grant exemptions in individual cases.
[...]
The new regulations go into effect June 1, 2009.

After Nearly 10 Year Fight EPA To Regulate Mercury Emissions From Cement Plants

Earthjustice announced today a settlement in their long running dispute with EPA over regulating mercury emissions from cement plants. environmental groups along with nine states, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, New Jersey, New York and Pennsylvania were parties to the suit.

An excerpt from an AP release on mlive.com follows;

Under the agreement, the agency promises to propose new emission standards by March.

We'll be hearing more on this subject in the coming months.

Agency Memo Asks Power Project Permitting Authorities to Perform MACT Review

As I stated earlier in this blog, if you want to build new coal (or oil) fired power plants in this country you better plan on MACT standards for mercury and other toxics. A new EPA memo, dated January 7, 2009, has asked for just that consideration when reviewing new plant permits. This will affect all new plants and those that started construction, or re-construction, between March 29, 2005 and March 14, 2008.

Even though most affected construction probably meets the requirements anyway, the EPA is beginning to understand what many states already knew to be so.

Excerpts from a Power Engineering Int'l article follow;

The U.S. Environmental Protection Agency's Office of Air and Radiation said in a January 7 memo that power plants under construction may now need to meet new-source maximum available control technology (MACT) standards.

The EPA memo, from Robert J. Meyers, principal deputy assistant administrator, states that although electric steam generators may have relied on rules that EPA issued and that were vacated by a federal court in February 2008, EPA now believes those generators are "legally obligated to come into compliance" with the requirements of Section 112(g). Section 112(g) refers to a portion of the Clean Air Act Amendments.
[...]
Units affected by the January 7 EPA memo include coal- and oil-fired facilities that began "actual construction or reconstruction" between March 29, 2005 and March 14, 2008.

EPA said it reviewed permit information for potentially affected facilities and believes that controls in place "may be sufficient" to comply with MACT standards. The agency said, however, it is asking state and local air permitting authorities to make new-source MACT determinations for each affected project.

EPA advised permitting authorities not to consider any MACT options closed simply because permits have been issued, administrative processes have begun or contracts have been let. Instead, "permitting authorities should limit such consideration to actual construction only."

Mercury Threat Could Worsen Along With Global Warming - Happy New Year To You Too

Just as we are all trying to get back into the swing of our daily lives, along comes some more good news (facetious) on the mercury front. A recent research paper by Sue Natali, a postdoctoral associate in botany at the University of Florida (Go Gators!), suggests soil's ability to glom onto and hold mercury has increased along with the levels of CO2 in the atmosphere and should continue to increase if CO2 levels do too.

An excerpt from a e! Science News article follows;

(She) compared mercury levels in soils under trees growing in air enriched with carbon dioxide to soil beneath trees in ambient air. Carbon dioxide, the main greenhouse gas, has increased nearly 40 percent since the industrial revolution and is expected to continue climbing unless power plant and other emissions are restricted or curtailed.

Natali's main finding: Soil samples from the carbon dioxide-enriched soil contained almost 30 percent more mercury — apparently because the soil had greater capacity than soil in today's atmosphere to trap and hold on to mercury.

On the one hand, Natali said, that increased capacity could slow the mercury's release into water — its main conduit to aquatic wildlife and the fish that pose a hazard to people. On the other, it means that even if policy makers manage to ban or severely restrict mercury emissions, the metal will remain a source of pollution for a long time.

"From the time you cut off mercury emission to the time it positively affects fish, you might have this lag, because the soils hold on to the mercury better," Natali said.
[...]
Natali said scientists have long recognized mercury levels in soil spike under trees, averaging four times the concentration in open areas.

That's because trees effectively scavenge the poison from the atmosphere. Leaves and stems collect rainwater, and with it mercury; trees drop mercury-laden leaves on the ground, and trees take in the metal through their stomata, or breathing pores on leaves.

Scientists also have shown repeatedly that increased atmospheric carbon dioxide leads to increased plant and tree growth. Natali said she launched her research to find out whether that process would in turn have any effect on pollution from mercury and other metals.

Fortunately, two experimental sites were already in place: the free-air carbon dioxide enrichment experiments at forests in North Carolina and Tennessee, operated by Duke University and Oak Ridge National Laboratory, respectively. These sites consist of plots in naturally growing forests surrounded by vertical pipes that constantly pump out carbon dioxide — and have done so since 1996, for the North Carolina site, and 1998, for the Tennessee site. The systems surround deciduous and coniferous trees in the plots with 200 parts per million more carbon dioxide than ambient air, or between 549 and 582 parts per million. That is the anticipated concentration in the air in 2050 without new emissions restrictions, Natali said.

Natali assessed mercury levels in rain that struck the canopy and then flowed down stems and trunks; in rain that fell directly from the canopy to the forest floor, and in leaves that fell below the trees, or "leaf litter."

To her surprise, none contained particularly elevated levels of the poison. In fact, although the trees in the enriched plots produced more leaf litter, mercury concentrations in the leaves actually decreased. The uptick in mercury in the soil apparently happened instead because of "changes in soil properties" that occur in the enriched environments, according to the paper. These changes increase the soils' mercury storage capacity.