NRCM news release
WASHINGTON D.C. — On April 28, state and national conservation groups sued the federal government to force the Environmental Protection Agency to require maximum achievable reductions in mercury and other toxic air pollutants emitted by coal and oil-fired power plants, as required by the Clean Air Act. The lawsuit against EPA was filed in U.S. District Court in Washington, D.C.
These emission standards for power plant toxics are long overdue. Under the Clean Air Act, EPA’s deadline for issuing the standards was December 20, 2002. The plaintiffs are asking the court to order EPA to issue the standards expeditiously. The Izaak Walton League of America, National Wildlife Federation and the Natural Resources Council of Maine are plaintiffs in the lawsuit. The groups are represented by Ann B. Weeks of the Clean Air Task Force, and by local counsel James B. Dougherty.
Coal-fired power plants emit more than 40 percent of the nation’s mercury emissions and these emissions are largely unregulated. Two years ago, scientists at EPA concluded that 90 percent mercury reductions are possible using existing technologies.
“For our health and the health of our environment, we need to control toxic emissions, especially from very significant sources like coal-fired power plants,” said Sarah Welch of the Izaak Walton League’s Midwest Office.
“Mercury controls are more than a year late and there is no reason to further delay protections for families in Maine and across the nation,” said Jon Hinck toxics project director for the Natural Resources Council of Maine. “Our lawsuit simply asks the court to require the Bush administration to obey the law.”
“Pregnant women who eat tainted fish could be passing mercury along to their unborn children, putting them at risk of brain damage,” said National Wildlife senior attorney Neil Kagan. “While people have a choice to limit their fish intake, loons, otters and other wildlife living in or around contaminated waters have no choice. People and wildlife deserve better.”
The Clean Air Act required the federal government to protect children’s health by issuing final standards for power plant emissions of mercury and other hazardous pollutants by December 2002. Those rules would have been effective at new facilities immediately, and by December 2005 at existing facilities.
This lawsuit is in response to the EPA’s failure to meet the requirements of the Clean Air Act. It should not be confused with a separate lawsuit brought by the Natural Resources Defense Council, filed over 10 years ago, to compel EPA to finalize its studies of toxic air pollution emitted by power plants. In addition to reaching agreement about the deadline for the studies, the parties to that challenge subsequently agreed that EPA would propose a maximum achievable control technology standard by December 15, 2003 and issue final rules by December 15, 2004. NRDC yesterday withdrew that deadline.
This lawsuit seeks a court order that EPA must finalize maximum achievable reductions as expeditiously as possible. It is being filed as EPA is accepting comments on its proposal to reduce emissions of mercury and nickel from power plants using a cap and trade plan. EPA’s proposal would allow mercury emissions to continue for a much longer period of time and would allow greater amounts of mercury than what EPA experts have said is achievable and cost-effective. EPA’s proposal is also less stringent than what was recommended by the majority of EPA’s own panel of experts who spent more than two years working on this problem.
Background on Mercury and the Coal- and Oil-fired Electric Utility Industry:
Coal-fired power plants emit about 48 tons of mercury every year, or about 41% of the total U.S. emissions of mercury (according to 1999 data, the most recent year for which data are available). Coal- and oil-fired power plants also emit significant amounts of the other hazardous air pollutants listed in the Clean Air Act.
Mercury is a dangerous neurotoxin that interferes with the development and function of the central nervous system.
Exposure, for example through eating contaminated fish, can cause subtle but permanent harm to the brain in humans and reproductive harm in wildlife. The most sensitive populations are young children whose brains are still developing, and women of childbearing age.
In January 2004, Environmental Protection Agency scientists released new research indicating that 630,000 U.S. newborns had unsafe levels of mercury in their blood in 1999-2000, doubling previous estimates. This new estimate equates to at least one in eight American women of childbearing age with mercury levels in her blood above what is considered safe for a developing fetus.
Forty-four U.S. states and one territory have issued fish consumption advisories, warning women of childbearing age and young children against eating most freshwater and some saltwater fish due to the risks of neurological damage that may result from even low levels of such exposure.
Background on the Lawsuit
This lawsuit seeks a court-ordered judgment that a Maximum Achievable Control Technology (MACT) standard is required under the Clean Air Act, and seeks to establishm an expeditious and enforceable schedule for the issuance of a final MACT standard.
The Clean Air Act requires that MACT standards for new sources shall not be less stringent than the emissions control achieved in practice by the best controlled similar source. For existing sources the Act requires that emissions standards shall not be less stringent than the average emission limitation achieved by the top 12 percent of existing sources, or the average of the best performing five sources in an industrial category or subcategory where there are fewer than 30 sources.
In 2000, EPA found that 90 percent reductions in mercury emissions were achievable from the coal-fired utility industry.
Mercury was listed as a hazardous air pollutant by Congress in the 1990 Clean Air Act Amendments, as were 187 other air toxics. (CAA 112(b)).
The Clean Air Act requires that listed industries that emit these air pollutants, the U.S. Environmental Protection Agency must develop regulations that require the “maximum degree of emissions reductions” achievable at each new and existing source in the industrial category. (CAA 112(d)). These are known as MACT standards.
U.S. EPA listed the coal- and oil-fired power plant industry on December 20, 2000, after finding that regulation of the industry is “appropriate and necessary”. (65 Fed. Reg. 79825).
The Clean Air Act requires that once an industry that emits hazardous air pollutants is listed, MACT standards must be promulgated within two years after the date the industry is listed. (CAA 112(c)(5)). EPA therefore was required to promulgate final MACT standards for the coal- and oil-fired power plant industry by December 20, 2002.
In December 2003 the Agency proposed an alternative that would allow much less stringent reductions of new sources of mercury and other hazardous air pollutants (HAPs) in the coal-and oil-fired utility industry. The proposal would allow the trading of mercury emissions with no geographic limitation. Under the alternative approach, existing coal- and oil-fired power plant sources would not be directly regulated, but would be subject to guidelines only.
