Why EPA Pressured States Over Mercury Emissions

Environmental Defense recently obtained internal EPA documents showing a pattern of pressure and arm twisting the EPA used to get individual States to play along with the Fed's plan for mercury emissions control. The Federal CAMR was based on a cap-and-trade scheme much like the ones used for SO2 and NOx emissions. An excerpt from an AP article over the weekend follows;

"There was an extraordinary degree of aggressiveness by EPA in pressing states to abandon a more protective mercury program. EPA devoted enormous effort to preventing states from doing more," said Vickie Patton, a lawyer for Environmental Defense. The group obtained the documents through a Freedom of Information Act filing.

The push to rein in uncooperative states continued until the eve of the Feb. 8 appeals court decision that struck down the EPA's program. The U.S. Court of Appeals for the District of Columbia Circuit said the agency did not adequately address the health impact of its plan.

The administration was poised to take even tougher measures against maverick states. A day before the ruling, the White House Office of Management and Budget approved a draft regulation to impose a "federal implementation plan" for mercury reduction in states whose mercury control measures did not meet EPA approval.

It would have required power plants to comply with the national cap-and-trade provisions, even it that meant ignoring state restrictions.

Both the emissions trading approach and any further requirement on states have been put on hold after the court ruling, EPA spokesman Jonathan Shradar. He denied that the agency was pressuring states.

"Our goal is to have a federal rule. ... Our job is not to pressure states," he said.

It is my opinion that the reason the EPA became so determined to push States into the trading program was simply because if enough States opted out of the trading program there would not be enough credits to run a successful cap-and-trade program. The market would not be big enough to sustain the plan. So, as many States began to opt out and create plans stricter than CAMR, EPA got concerned and tried to "steer" States into the program.

Of course it all became moot with the Feb 8 ruling.

CAMR Gone - Activated Carbon Sales Projections Increase

In the coming days we will all be watching to see what effect the Appeals Court ruling against the EPA's CAMR will have on industry. Will power plants recently permitted to go forward have to resubmit their applications? Will Mercury Monitoring sales be slowed or halted? What other impacts will there be?

One industry that thinks ultimately the impact will be positive is the activated carbon market. Both Calgon Carbon and ADA have expressed upbeat reactions to the ruling. In an article from the West Virginia State Journal, Gail Gerono, a Calgon spokesperson says, "We think that long-term it is going to be quite positive for us." And investors must believe it will be so as Calgon Carbon stock went up immediately after the ruling and has continued to climb since. Excerpt follows;

"We were estimating before this ruling based on our conversations with various utilities that the market for 2010 would be about 300 million pounds (of powdered activated carbon and), by 2018, the market would be about 750 million pounds," Gerono said.

The company expects the court's decision to increase those numbers at the 2018 end of that projection, she said.

Another activated carbon company ADA-ES from Littleton, CO also sees the recent ruling not affecting their growth plans at all. An excerpt from Environmental Protection follows;

According to (ADA-ES) President and Chief Executive Officer Michael Durham, Ph.D., "We have been pursuing an aggressive strategy to ensure that we will be able to supply the activated carbon needs of our coal-fired power customers. Despite regulatory uncertainty, we have taken steps and invested capital prior to the adoption of final, binding federal regulations, in order to be in position to respond to the market that we believe will result from more stringent limits on mercury emissions."

ADA has plans to build the largest activated carbon production line yet, and does not appear to be altering those plans.

Dems Move Fast To Replace Vacated CAMR With New Federal Legislation

Senator Tom Carper (D) Delaware plans to introduce a bill that would force the EPA to act quickly to adopt a Rule that would reduce mercury emissions from all EGUs by a factor of 90% by 2010. The bill called the "Electric Utility Steam Generating Unit Emission Control Act", or EUSGUECA for short, sort of, claims it could save the US $5.2 billion per year in health care costs related to the toxin. The bill also claims to accomplish this using existing technology at a cost of only $3.00/kilowatt hour. An excerpt from Environment & Energy Daily (Subscription req'd) follows;

Carper's legislation would require U.S. EPA to write a rule aimed at a 90 percent reduction in mercury emissions from coal-fired power plants by 2010, using available technology like activated carbon injection and fabric filters. By contrast, EPA said the rule struck down by the court would have achieved a 70 percent reduction in mercury emissions by 2018.

Ramped up reductions with a ramped up time-line is exactly why environmentalists applauded the DC Appellate Court's decision the other day. While EPA claimed the court ruling left the country with no mercury rule, the swift call to action to replace the CAMR with legislation consistent with the Clean Air Act should quell any concerns.

CAMR Vacated by DC Appeals Court, What's Next?

It seemed inevitable, the shaky ground upon which EPA's Clean Air Mercury Rule stood finally crumbled. In the long awaited decision the Circuit Court of Appeals for the District of Columbia sided with the petitioners and vacated the Clean Air Mercury Rule (CAMR). The following excerpt, directly from the ruling, with citations omitted follows;

Accordingly, in view of the plain text and structure of section 112, we grant the petitions and vacate the Delisting Rule. […] This requires vacation of CAMR’s regulations for both new and existing EGUs. EPA promulgated the CAMR regulations for existing EGUs under section 111(d), but under EPA’s own interpretation of the section, it cannot be used to regulate sources listed under section 112; EPA thus concedes that if EGUs remain listed under section 112, as we hold, then the CAMR regulations for existing sources must fall. […] EPA promulgated the CAMR regulations for new sources under section 111(b) on the basis that there would be no section 112 regulation of EGU emissions and that the new source performance standards would be accompanied by a national emissions cap and a voluntary cap- and-trade program […] Given that these vital assumptions were incorrect, the court must vacate CAMR’s new source performance standards and remand them to EPA for reconsideration, for “[s]everance and affirmance of a portion of an administrative regulation is improper if there is ‘substantial doubt’ that the agency would have adopted the severed portion on its own […] In view of our disposition, the court does not reach other contentions of petitioners or intervenors.

So that leaves us with the question, What's next? One option is the EPA could ask the full Appeals Court to rule, this decision was a three judge panel, but that seems unlikely because all three judges signed on. Another option is to appeal to the Supreme Court, the likelihood of that seems dim for the same reason. It was resolved fairly quickly, which may indicate there was little dissent, but we will have to wait and see. Several States have their own laws which were stricter than the CAMR and did not allow trading of mercury credits and those should not be affected. Any State law that did allow for any credit trading is in trouble. And it may be that all State rules that were compelled by the now vacated CAMR need to be revisited.

What happens now? If the ruling stands and is not appealed the ultimate course of action for EPA will probably be a Most Achievable Control Technology (MACT) rule for mercury, and now since mercury capture technology has progressed quite a bit, the resulting MACT may be stricter than the one that would have been put in place back in 2005. This will be very interesting to watch and follow now. Earth News has more here. And YubaNet has more here.

How Minamata May Save Flipper

For centuries fishermen from a small fishing village in Japan have annually corralled thousands of dolphins in a tiny cove and then slaughtered them for meat and fertilizer. For decades environmental and animal activists have protested the slaughters and have attempted to bring public awareness to this unnecessary ritual in an effort to have it stopped, thus far unsuccessfully. But now a threat to the Japanese even stronger than global public opinion may put an end to the senseless killing.

Back in the 1950s and 60s there was a terrible environmental disaster in Japan. A disaster so horrendous that thousands of Japanese people were killed or crippled and many families are still fighting over restitution. The disaster was the mercury poisoning of Minamata Bay caused by dumping vast amounts of industrial waste into the waters near that southern fishing village.

Well recent tests on the meat from the dolphin slaughters has shown very high levels of mercury and may ultimately put an end to the ritual. No one in Japan wants another Minamata, apparently they can live with the senseless killing of dolphins as long as it doesn't jeopardize their food supply with a known toxin. So, their fear of poisoning themselves may end the killing of the dolphins. If only they were smart enough to do something about poisoning the dolphins so our marvelous mammalian brothers and sisters of the sea could live toxin-free too. Oh, and try to find a better source of food and fertilizer.

Nevada Rebuffed, Oklahoma Dawdles & Michigan Boldly Moves Forward

As the country awaits the decision of the Federal Appeals Court in D.C. on the legality and thus the future of the CAMR, different States are taking different tacks. Nevada sent its plan to comply with CAMR to the EPA back in November of 2006. The plan was recently rejected and sent back for rework. The EPAs decision to reject the plan is open for comment now and has been extended until March 13, 2008.

Oklahoma officials used the pending federal court case as an excuse to delay action altogether. From a recent NewsOK article;

Members of the Department of Environmental Quality's Air Quality Advisory Council voted to delay adopting proposed rules seeking to implement limits within the Sooner State until at least April.

They opted to wait because of an ongoing lawsuit seeking to void the federal rules.
[...]
The advisory council's decision Thursday didn't appear to surprise environmentalists who attended the meeting.

Still, they told council members Thursday stricter standards need to be adopted now.

"When it comes to that decision on the federal lawsuit, whichever way it goes, what is the risk of going ahead with something stricter?” asked Montelle Clark, a member of the Oklahoma Sustainability Network's board of directors.

"You are still allowed to do that” regardless of the lawsuit's outcome, Clark said. "If you went ahead and did it now, you would be ahead of the game.”

Meanwhile, Michigan has all but declared war on mercury in all its forms and releases. A bold 67 point plan, if completely enacted and seen through, would position Michigan as a model for the rest of the country. Some of it requires future legislation but a lot of it is a "call for partnerships with local governments and private groups."

An excerpt from All American Patriots follows;

January 30, 2008 -- The Michigan Department of Environmental Quality has released a comprehensive strategy to eliminate the use and release of mercury to Michigan's environment. The DEQ's Mercury Strategy Staff Report contains specific recommendations to ensure the protection of Michigan's wildlife and citizens from this persistent toxic pollutant by proposing a comprehensive approach to controlling mercury, including environmental monitoring, inventory development, collaborations and partnerships, information and outreach, and regulatory controls.

Different strokes...

Cross Border Pollution Disputes & Suits

It was just a couple weeks ago that the US Supreme Court refused to hear an appeal by Canadian mining firm Teck Cominco of a lower court decision in 2006 that "an American environmental law applied to a foreign company when some of its pollution reaches U.S. territory." Indian tribes and environmentalists in the northwest claimed Teck Comincos effluents were polluting the Columbia River.

Now in what appears to be turnabout is fair play, DTE Energy is in the crosshairs of Canadian environmental groups over cross border mercury emissions. An excerpt from CommonDreams.org follows:

On Wednesday, the Superior Court of Justice in Sarnia, Ontario issued an order directing a lower court to summon DTE Energy to face charges for poisoning the St. Clair River with dangerous amounts of mercury. Michigan's DTE Energy Company is being charged for its role in polluting the St. Clair River with mercury.

And this tidbit from Toronto's The Star:

The case will probably be "a really uphill battle," for the Alliance, said Barry Spiegel, at Toronto's Willms & Shier Environmental Lawyers.

It's not likely DTE would be legally required to obey a summons from Ontario or be penalized if it didn't appear in court and was convicted anyway, particularly since it has no assets or workers in Ontario.

"It's hard to say how far (the Alliance prosecution) will go," he said.

If the lawyers are right, who wins and who loses? If a company is operating within its permit limits in the country and state it is in, how can it be held accountable in a foreign country? Let's all sue China for its mercury emissions and see how far we get. International understanding and cooperation are required, not cross border lawsuits.

What do Umatilla, Steamboat Springs, TiO2, PG&Es Boardman and Sperm Have In Common? Read On

The effects of mercury emissions on our planet have brought together this disparate group in this installment of Hg-ATME.

Incineration of chemical weapons at Umatilla has been going on for about three years. Recently it has come under renewed attack by a "DC Watchdog" group stating there are better, safer ways to decontaminate mustard gas and other hazardous waste without mercury and other chemical emissions. KUOW, an NPR affiliate covered this story earlier this week.

Scientists studying in the clouds at DRI"s Storm Peak Laboratory above Steamboat Springs, CO have been witnessing an alarming increase in the amount of airborne mercury. Using some fairly new technology they are capable of detecting the "low" ambient concentrations, but do not be fooled by the word "low". Remember everything is relative. These ambient readings have gone up dramatically in very short order and because of the accumulative nature of mercury in the environment pose real concerns. Both KWGN2 and CBS4 in Denver covered this story.

In some hopeful news this week, Washington University in St. Louis, my sisters alma mater, along with Chrysler and Ameren are experimenting with some promising technology, reusing paint solids from automobile spray booths as supplemental fuel and also removing mercury from the flue gas. The paint solids were landfilled before Dr. Pratim Biswas, Stifel & Quinette Jens recognized the opportunity they possessed in removing mercury from the coal combustion process. See the paint residue is high in titanium dioxide (TiO2) which through a process known as chemisorption bonds with the mercury and is removed with the plants existing air pollution control devices. Sounds like a win-win-win, less waste, less coal, less mercury. A footnote from the Eurekalert release follows;

The project has been recognized with a pollution prevention award from the St, Louis chapter of the National Association of Environmental Managers and with an Environmental Leadership Award from Chrysler.

The Washington University, Chrysler and Ameren team also received the 2007 Chrysler Environmental Leadership Award.

As environmental groups continue to attack coal fired power plants (the activity du jour), Oregon's Boardman Station, the only coal fired plant in the state, is under fire from the Sierra Club and others claiming the plant is violating the Federal Clean Air Act with emissions of mercury and other dangerous substances. Excuse me, but, I think Boardman in all likelihood is operating in legal compliance with its operating permits. You and I and the Sierra Club and others may want stricter limits on pollution but until the laws change suing individual facilities is wasting our judicial system's time. An excerpt from the Bizjournals story follows;

The complaint alleges the Boardman plant is the largest emitter of the greenhouse gas carbon dioxide in Oregon and that its ongoing emissions of mercury and other substances violates federal law and jeopardizes environmental and public health.

The effort is part of a national campaign by environmental groups to eliminate existing and proposed coal-fired power plants. Such plants provide more than half of the country's power but are also the nation's largest source of carbon dioxide.

I don't know what they think we will do without 50% of our power. Eliminating coal fired plants from our energy mix is an admirable goal but one that is decades away, that is unless you don't like air conditioning, heated homes in winter, night baseball, large screen TVs, and those really cool electric massagers.

And just when I thought I had heard every possible downside to mercury emissions along comes my old friend Wired magazine to zing me with a new one. Sperm in mice, and presumably humans too, have shriveled DNA due to air pollution, including mercury. It seems a team of scientists from Canada of all places (maybe their sperm DNA shriveled because it was too cold, but I digress) set mice in cages out in heavy industrial areas, some cages open to the pollution and others sealed getting only HEPA filtered air. Well, you guessed it, the ones breathing the pollution had sperm with shriveled DNA. And not only that the sperm were also hypermethylated, excessive gene activity. God, I hate when that happens. But seriously they are looking into the possible connection between these sperm mutations and the increase in childhood autism.

Recent CAMR / CAIR Update Slideshow

One of my colleagues sent me this link to a powerpoint Beth Murray of the EPA used in a training class that shows the current status of the Clean Air Interstate Rule (CAIR) and the Clean Air Mercury Rule (CAMR). You may find this interesting and useful.

New Year Brings New Hope and Some Pretty Cool Mercury Pollution Research

Happy New Year to all. After returning from my Christmas vacation there was not much going on within the mercury legislation circles. We all anxiously await the decision by the D.C. Appeals Court on the legality of the Federal CAMR. But that decision appears to be a month or two away.
The Allen S. King coal-fired power plant near Stillwater is the first of three Xcel
Energy plants to go on line with new emissions reduction equipment, as part of a
voluntary cleanup agreement with the state. (Courtesy of Xcel Energy)

Xcel Energy promises to install carbon injection systems on two of its larger units in Minnesota, reducing mercury emissions by as much as 90% or more. The EPA gave its nod to the Northeast States plan to limit mercury in its lakes and streams, but without a National plan to reduce emissions from all coal fired power stations in a timely fashion the approval has little meaning.

Some groups in Virginia are calling on their state to ratchet down mercury emissions by pointing to other more aggressive states and the folks in Grand Island, NE are getting a grasp on what they need to do to bring their cities power plant into compliance by 2010.

While I was skimming through the literature on mercury emissions I came across a notable project being undertaken at Dartmouth University. They are launching an interdisciplinary study on the social and economical impacts of mercury pollution. This promises to be like no other research project in its approach to gaining understanding of what really happens to populations as they are exposed to rising levels of mercury pollution. Not just health effects but a holistic look at all the impacts of a toxin in our environment. An excerpt from VOX of Dartmouth follows;

Even at Dartmouth, where interdisciplinary projects abound, this one stands out, says principal investigator Mark Borsuk, an assistant professor at Thayer School of Engineering. “Not only are we from four different departments, we are overseen by three different deans. The grant proposal needed three times the typical number of signatures.” The team includes Borsuk; Darren Ranco, assistant professor of Native American studies and environmental studies; Richard Howarth, the Pat and John Rosenwald Professor and professor of environmental studies; and Andrew King, associate professor of business administration at the Tuck School of Business. The project is funded by a three-year, $300,000 grant from the U.S. Environmental Protection Agency’s Collaborative Science and Technology Network for Sustainability program. The group will apply a combination of economic and social scientific theory, environmental modeling, behavioral experiments, and interviews with “stakeholders,” or those affected by mercury pollution. The goal is to identify compelling “indicators” of mercury pollution—ways of characterizing the pollutant’s impact that are especially meaningful to the public. For example, a “biological indicator” might be the mercury levels in a popular fish or wildlife species, while a “social indicator” may range from the average number of IQ points a child loses when exposed to high levels of the pollutant, to the number of public meetings attended by members from impacted communities to implement the regulations.

I wish this team the best of luck and look forward to their findings as they are released.