Violations of the Clean Air Mercury Rule by the EPA

On February 8, 2008 the U.S. Court of Appeals ruled that the U.S. Environmental Protection Agency violated the Clean Air Mercury Rule portion of the Clean Air Act through changes it made in 2005 regarding hazardous air pollutants (HAPs).

The EPA removed coal- and oil-fired power plants from a list of sources of HAPs. These Electric Generating Units were removed from the list without the making a specific finding, which is required for removal.

The court stated: "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 Electric Generating Units as sources of HAPs regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these Electrical Generating Units from the section 112 list."

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.

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

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.

Source: Environmental Protection, www.eponline.com

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