EPA's Mercury Rules Bite the Dust

The U.S. Court of Appeals for the District of Columbia on Feb. 8 said the U.S. Environmental Protection Agency' violated the Clean Air Act through changes it made in regulating hazardous air pollutants (HAPs), specifically under the Clean Air Mercury Rule.

According to the court decision: "In December 2000, EPA concluded that it was
'appropriate and necessary' to regulate mercury emissions from coal- and oil-fired power plants under section 112 and listed these EGUs [electric generating units] as sources of HAPs regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these EGUs from the section 112 list."

EPA never made a specific finding to remove these plants from the list as it is required to do, the court said.

The panel also vacated a second rule, which set performance standards for new coal-fired EGUs and established total mercury emissions limits for states and certain tribal areas, along with a voluntary cap-and-trade program for new and existing coal-fired EGUs.

Fourteen states and dozens of Native American tribes, public health and environmental groups, and organizations representing registered nurses and physicians challenged these rules in 2005. Today's ruling rebuked the agency for attempting to create a loophole for the power-generating industry rather than applying the toughest emission standards of the Clean Air Act.

The Clean Air Mercury Rule, according to Scott Segal, director of the Electric Reliability Coordinating Council, was the first ever national rule to address mercury air emissions. "Ironically, with their aggressive litigation posture, the environmental community and their state allies have again caused uncertainty and delay in regulating mercury. The Environmental Protection Agency essentially must return to the drawing board in developing a new mercury rule."

Importantly, Segal said, the court did not find that the rule would have been an ineffective basis upon which to regulate mercury. "It did not criticize the use of cap-and-trade programs for mercury in any way."

Segal said the court "held that, because Administrator [Carol] Browner listed mercury in the 11th hour of the last Administration, she effectively tied the hands of the next Administrator in attempting to fashion more innovative and effective regulatory approaches."

He added that electric utilities have installed technology to significantly reduce mercury emissions and are working with the Department of Energy (DOE) to test the effectiveness of new mercury control technologies.

A copy of the decision is available at http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/05-1097a.pdf.

"The court has now told EPA in no uncertain terms to follow the law as it is written. We are looking forward to working on rules that reflect the most stringent controls achievable for this industry, as the Clean Air Act requires," said Ann Weeks, attorney for Clean Air Task Force who represented U.S. PIRG, Ohio Environmental Council, Natural Resources Council of Maine, and Conservation Law Foundation in the case.

According to a release from Environmental Defense, approximately 1,100 coal-fired units at more than 450 existing power plants emit 48 tons of mercury into the air each year. Yet only 1/70th of a teaspoon of mercury is needed to contaminate a 25-acre lake to the point where fish are unsafe to eat. More than 40 states have warned their citizens to avoid consuming various fish species due to mercury contamination, with over half of those mercury advisories applying to all waterbodies in the state, the release said.

"EPA will now have to get back to the business of protecting people's health rather than higher profits for electric utilities," said John Suttles, attorney with the Southern Environmental Law Center who represented Physicians for Social Responsibility, American Nurses Association, American Public Health Association and the American Academy of Pediatrics in the lawsuit.

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