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Current Issue
Legal Lines
Courts to Settle Dispute Over Mercury Strategy
by Beth Card, NEIWPCC
You may have a noticed a theme in this edition of IWR—a lot of talk about mercury, most of which enters the environment through atmospheric deposition. Now, you might be inclined to think this is an air problem, and if it is, to question why it’s a big deal for NEIWPCC. The reality is, mercury poses a threat to both air and water resources, and the Northeast states have been investigating the regulatory tools available to address the problem.
It turns out that both the Clean Air Act (CAA) and Clean Water Act (CWA) may be able to offer remedies. On the CWA side, the obvious tool is a TMDL, and the Northeast Regional Mercury TMDL that was submitted to EPA on October 24 focuses on mercury reaching our waters via atmospheric deposition and notes that these contributions are primarily from out-of-region sources (see article on page 1). With regard to the CAA, a legal challenge is underway, with the states citing a need for EPA to implement more stringent controls. The legal maneuvering is the latest development in a story that began long ago—17 years ago to be exact.
Roots of the Rules
In 1990, the CAA was amended to require among other things that EPA study the health hazards of electric utility steam generating units (EGUs), otherwise known as power plants, and determine whether the agency deemed it appropriate and necessary to regulate the emissions of hazardous air pollutants (HAPs) under Section 112 of the CAA. This section of the act regulates HAPs and provides a list of all of the pollutants regulated under this category.
EPA conducted the study and in 2000 released its report. It stated that “mercury from coal-fired utilities is the HAP of greatest potential concern” and said it was indeed necessaryto regulate those emissions. This determination triggered the requirement to set plant-specific emissions standards based on maximum achievable control technology (MACT). To develop standards using MACT for a particular source category, EPA looks at the best level of emissions reductions achieved on similar sources through clean processes, control devices, work practices, and other methods. These emissions levels set a baseline, often referred to as the “MACT floor,” for the new standard. At a minimum, a MACT standard for mercury and other HAPs emitted from power plants would need to achieve, throughout the industry, a level of emissions control at least equivalent to the MACT floor for those contaminants. Ultimately, EGUs were added to the Section 112 list of source categories and had to be regulated accordingly.
The states were, and still are, of the opinion that this was the way to go. EPA’s decision to change course is in part what is now being litigated. Years after releasing the 2000 utility report, EPA drafted two proposed rules and in March 2005 released them for public comment. The two rules are known as the Clean Air Mercury Rule (CAMR) and the Clean Air Interstate Rule (CAIR). EPA said the two rules build off each other to “significantly reduce emissions from coal-fired power plants” and said that “when fully implemented, these rules will reduce utility emissions of mercury from 48 tons per year to 15 tons, a reduction of nearly 70 percent.” This sounds like the solution the Northeast states are looking for, but according to the calculations presented in the Regional Mercury TMDL, the reductions aren’t enough to make our fish safe to eat again. Also, the deadline for the reductions to be implemented is 2018, and many feel that is too long to wait.
States Make Their Case
Of the two rules, it’s the CAMR that has been the main focus of the legal debate over controlling atmospheric mercury. The original proposal included two options: one maintained the listing of EGUs and sought to regulate them under Section 112 by using MACT standards or a cap-and-trade program; the other proposed to remove EGUs from the Section 112 list and instead regulate them through a cap-and-trade program under Section 111, which is the section that provides standards of performance for new stationary sources.
EPA ultimately chose the latter approach, leading a number of parties to petition for the rules to be reconsidered. While EPA did grant that reconsideration on a number of issues, the agency issued a final rule in June 2006 with only a few changes. CAMR remained a rule that utilized authority under Section 111 and was intent on implementing a cap-and-trade program. Cap-and-trade, whereby there’s a limit on total emissions but individual plants can buy and sell pollution credits, is an approach that NEIWPCC’s member states unanimously oppose because of concerns over the increased potential for localized mercury deposition hotspots. Our member states that have EGUs to regulate have all developed their own rules for coal-fired utilities, and none allow trading of mercury emissions.
Because of their concerns, our states and several others (16 in all) joined together to petition EPA’s final agency action on CAMR. In the states’ opening brief dated January 11, 2007, they presented three main arguments to the U.S. Court of Appeals for the D.C. Circuit. Their arguments are summarized as follows:
• EPA exceeded its statutory authority and violated the CAA by removing EGUs from the CAA Section 112 list without complying with the mandated procedure. CAA Section 112 doesn’t give EPA authority to rescind its determination.
• EPA’s action violates the CAA by exempting EGUs from Section 112 based on an erroneous “new interpretation” of Section 112(n) and CAMR and CAIR. The revised determination under Section 112 of what is appropriate and necessary is contrary to Congressional intent. There is no basis in CAIR or CAMR by which EPA can revise its determination of “appropriate and necessary.”
• CAMR’s regulation of mercury under Section 111 is contrary to the statute. The scope and requirements of cap-and-trade under Section 111 is misused. Section 111(d) limits this section to those pollutants that are not emitted from a source category which is regulated under Section 112. Mercury is a HAP under Section 112.
EPA stated its position in a reply brief on May 4, 2007. One of its main points in response to the states’ argument about delisting EGUs from Section 112 of the CAA was that the original 2000 finding lacked foundation, and thus the determination was wrong. EPA further stated that the agency “reasonably determined that it is not appropriate to regulate power plant mercury emissions under Section 112 because hazards to public health are not reasonably anticipated to occur as a result of power plant mercury emissions following implementation of Act requirements.” With regard to the cap-and-trade strategy, EPA said that “a significant advantage of a cap-and-trade approach to regulation, such as that established in CAMR or CAIR, is that it limits the overall amount of emissions from the industry, regardless of how many new sources are built, whereas a Section 112 approach would just limit emissions from particular sources and would not preclude overall emissions from increasing beyond a cap as new sources went into operation.”
Waiting Game
The list is long of areas where the states, environmental advocacy groups, industry, and EPA disagree on the best way to regulate air emissions and control mercury pollution. And while opening arguments in the appellate courtshould have already begun by the time you are reading this article, we will likely not see a final decision until Spring. So it’s wait-and-see again, not only on the outcome of this legal battle but also the Northeast Regional Mercury TMDL. The two certainly go hand in hand, as the TMDL makes statements consistent with those made by the Attorneys General on behalf of the states in the CAMR litigation—that is, that the necessary reductions are possible if MACT standards under CAA Section 112 are implemented at 90 percent.
How will it all play out? Hard to say. But one thing’s for certain—the outcome will be an important factor in determining how, and when, we see significant reductions in the mercury in our waters.
Beth Card (bcard@neiwpcc.org) is NEIWPCC’s Director of Water Quality Programs and a licensed attorney in Massachusetts.