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Phase Two
NEIWPCC Leads Bold New Move to Reduce Mercury in Waters
By Beth Card, NEIWPCC
Almost three years ago, NEIWPCC’s Executive Committee, which is made up of the water program directors from each of our seven member states, considered how NEIWPCC should approach the issue of mercury pollution in the region’s waters. They gave the Commission’s staff a simple directive—think big. And think big, we have.
For the second time in two years, NEIWPCC has joined with our member states in a high-profile action aimed at reducing the mercury in our waterways so the fish within them can once again be safely consumed. In an unprecedented approach, NEIWPCC, on behalf of our member states, filed a petition under the Clean Water Act asking the U.S. Environmental Protection Agency to convene a conference that will have one overarching goal—to forge an agreement to reduce the amount of mercury that enters our states’ waters from sources outside the region. The filing of the petition on October 28, 2008, came in the wake of NEIWPCC’s first major action on mercury—the Northeast Regional Mercury Total Maximum Daily Load (TMDL).
The road leading up to these actions was long, and it may be some time before we see tangible results. But by keeping the pressure on our federal partners, and putting the spotlight on this important human health issue, we are working for progress in an area where progress must be made.
Road to Petition
In the Northeast, elevated levels of mercury in certain freshwater fish species have prompted states to issue advisories specifying the safe levels of consumption of the affected species. In doing so, the states hope to minimize the threat to public health posed by mercury, a potent neurotoxin that poses a particular risk to developing fetuses. But advisories only go so far. Not everyone sees them, and those who do may misunderstand or ignore them. The goal must be to get the mercury out.
The problem is that the vast majority of mercury in the waters of NEIWPCC’s member states can be attributed to atmospheric deposition—that is, when mercury emitted into the air by sources such as coal-fired power plants falls into surface waters or is carried by stormwater runoff into them. And since a significant portion of the deposited mercury in our states comes from sources outside the region, there was no simple fix. Hence, the need for big thinking.
Our first task was to determine how much mercury had to be reduced in order for the mercury impairments in our states’ waters to be eliminated. The approach for making this determination was obvious. The Clean Water Act requires that states develop TMDLs for waters listed as impaired under the act’s section 303(d). (A TMDL identifies how much of a pollutant must be reduced in order for water quality standards to be met.) So, as 2005 was coming to a close, NEIWPCC and our member states began collaborating on the Northeast Regional Mercury TMDL, using the previously developed Minnesota statewide mercury TMDL as a template.
After more than a year in development, the TMDL was released for public comment in April 2007. Following minor revisions, the states officially submitted it to EPA in late October 2007. Less than two months later, the agency issued its approval, noting the highlights of the plan: “The predominant nonpoint source of mercury to the waters included in the TMDL is atmospheric deposition.” EPA wrote that the TMDL’s limits on mercury in stormwater were “reasonable given that nearly all of the mercury in stormwater originates from atmospheric sources and will be addressed at its source…” EPA’s supportive language emboldened the states and NEIWPCC as we focused on the next step—implementation.
A Novel Approach
To help with determining the regulatory and legal options for controlling out-of-region sources of mercury, NEIWPCC retained counsel, Ron Shems of the Burlington, Vt.-based firm, Shems, Dunkiel, Kassel, and Saunders. Shems explored the alternatives and from them, he chose one to discuss with NEIWPCC and our Executive Committee: Section 319(g) of the Clean Water Act.
The key sentence of the provision comes in the first paragraph, known formally as CWA Section 319(g)(1) or 33 U.S. Code Section 1329(g)(1). It states: “If any portion of the navigable waters in any State which is implementing a management program approved under this section is not meeting applicable water quality standards or the goals and requirements of this chapter as a result, in whole or in part, of pollution from nonpoint sources in another State, such State may petition the [U.S. EPA] Administrator to convene, and the Administrator shall convene, a management conference of all States which contribute significant pollution resulting from nonpoint sources to such portion.” The conference’s purpose “shall be to develop an agreement among such States to reduce the level of pollution” and improve the water quality in the affected areas.
Our Executive Committee agreed with Shems that it was, without doubt, an approach with great potential. Holding a conference that led to such an agreement would be a direct, efficient approach to reducing atmospheric deposition of mercury. It could produce timely results. And it held the promise of allowing the states to achieve the reduction targets in the Northeast Regional Mercury TMDL, targets that significantly advance the states towards the ultimate goal—the lifting of fish consumption advisories.
And so the work began. Since we were asking U.S. EPA to convene a conference of states responsible for nonpoint source pollution (atmospheric deposition) contributing to water quality impairments in our states, we had to identify the contributing states in the petition. To do that, we turned to a 2008 study conducted by a sister interstate agency, the Northeast States for Coordinating Air Use Management. For the study, NESCAUM used data it had compiled from the Regional Modeling System for Aerosols and Deposition (REMSAD), an effort undertaken by ICF International for EPA. REMSAD was used to examine atmospheric deposition of mercury in the continental United States, and can be used to estimate the contribution of mercury deposition from one location to another location—that is, from one state to another state or from one state to an entire region.
According to the NESCAUM study, the REMSAD data show that approximately 70 percent of mercury deposited in NEIWPCC’s member states actually comes from sources outside of the United States. However, when considering the roughly 30 percent that comes from U.S. sources, just under half of it comes from sources outside the region. The out-of-region states with the most significant contributions are Pennsylvania (21.7% of deposition in NEIWPCC states attributable to out-of-region U.S. sources), New Jersey (5.6%), Ohio (5.5%), West Virginia (3.9%), Maryland (3.7%), Michigan (2%), Virginia (1.5%), Indiana (1.3%), Kentucky (1.2%), North Carolina (1.1%), and Illinois (.9%). While both in-region and out-of-region states have made changes to their mercury reduction programs since the REMSAD data were collected, the changes are not substantial enough to alter the main conclusion: a significant portion of the mercury deposited in our region’s waters originates with sources in the states identified in the NESCAUM study. In fact, a key goal of the requested conference will be to ascertain the adequacy of both in-region and out-of-region mercury reduction programs and initiatives in meeting Clean Water Act requirements for mercury impairments in the Northeast.
Time to Act
After a careful process of briefing air and water staff in our member states, as well as staff in the contributing states named in the petition, we were ready to go. On October 28, we sent the first-ever Clean Water Act Section 319(g) petition related to mercury pollution to U.S. EPA Administrator Stephen Johnson. In the petition, which was signed by the heads of the environmental agencies in each of our member states, U.S. EPA is requested to convene a management conference of all relevant states, determine the degree to which the non-petitioning states are contributing significant nonpoint source mercury pollution to the petitioning states’ waters, and develop an agreement among the states that will assure improvement of the petitioning states’ water quality and compliance with Clean Water Act requirements.
The intention is that each petitioning state’s water quality standards will be met as a result of implementing, under Section 112(d) of the Clean Air Act, limits on how much mercury any source can emit, based on the maximum achievable control technology (MACT). Specifically, the goal is an agreement that controls power plant emissions in the contributing states by 90 percent. Basing this goal on MACT limits is consistent with arguments made by our states and others when they successfully sued EPA over how the Clean Air Act was being used to regulate mercury from electrical generating units.
The filing of the petition comes amid uncertainty over the fate of EPA’s Clean Air Mercury Rule, which after full implementation would have resulted in a lower 70 percent reduction in mercury emissions. After the U.S. Court of Appeals for the D.C. Circuit struck down the rule earlier this year, EPA petitioned the U.S. Supreme Court to review the decision. With the rule tied up in the courts, and a new administration coming to Washington, the petitioning states saw this moment as a particularly auspicious time to push for greater progress on mercury.
NEIWPCC’s member states are looking forward to working with other states on this issue, to helping to shape new regulations aimed at controlling mercury, and to finally eliminating mercury-related fish consumption advisories. As Andrew Fisk, director of the Bureau of Land and Water Quality for the Maine Department of Environmental Protection, put it in the press release about the petition, “We look forward to sitting down at the table with EPA to develop an agreement. The goals are clear, and the technology needed to meet them is available. Let’s get to work so that our fish are safe to eat.”
Beth Card (bcard@neiwpcc.org) is NEIWPCC’s director of water quality programs. She and NEIWPCC’s Susy King, an environmental analyst, coordinated the development of the §319(g) petition. To download the complete text of the petition as well as a helpful fact sheet, visit NEIWPCC’s mercury web page at www.neiwpcc.org/mercury.
Editor’s Note: As with the submittal of the Northeast Regional Mercury TMDL, the filing of the §319(g) petition received considerable media coverage. Outlets carrying in-depth feature stories included the Greenwire news service, The Hartford Courant, and WAMC/Northeast Public Radio, which serves listeners in parts of seven northeastern states. To listen to WAMC’s story, which includes an interview with Beth Card, visit www.publicbroadcasting.net/wamc/news.newsmain?action=article&ARTICLE_ID=1403734.
- Summary of CWA §319(g) Process
Step 1 – State or States with approved nonpoint source management plans determine that waters are being impaired in part due to nonpoint source pollution from another state.
Step 2 – State(s) file a petition with the EPA Administrator.
Step 3 – EPA Administrator shall convene a management conference, the purpose of which is to develop an agreement for reductions to be made by those states contributing pollution.