DOJ: Attorney General Peg Lautenschlager Announces Wisconsin and Ten Other States Sue EPA to Block Second Mercury Rule

For Immediate Release

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Scot Ross

Cap and Trade Rule Will Perpetuate “Hot Spots” of Mercury Deposition From Power Plants

MADISON – Attorney General Peg Lautenschlager announced that Wisconsin has joined ten other states in filing a lawsuit today challenging a new federal Environmental Protection Agency (EPA) rule that establishes a cap-and-trade system for regulating harmful mercury emissions from power plants, a plan that will delay meaningful reductions in emissions for decades and perpetuate hot spots of local mercury deposition, posing a grave threat to the health of children.

Wisconsin Attorney General Peg Lautenschlager said: Years ago, EPA listed mercury as a hazardous air pollutant because of its serious health and environmental effects. Efforts underway now by EPA to exempt mercury from the achievable controls required by law are wrong-headed and dangerous.

The rule was published today in the Federal Register. The states previously filed suit against a separate EPA rule published March 29, 2005, that removed power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. EPA announced both the de-listing rule and the cap-and-trade rule on March 15, 2005. The trading scheme established by the rules will allow power plants to elect, rather than reducing their own mercury emissions, to purchase emissions credits from plants that reduce emissions below targeted levels.

The New Jersey Attorney General’s Office filed the suit today in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of the coalition, which also includes the Pennsylvania Environmental Secretary and the Attorneys General of California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York, Vermont and Wisconsin.

Cap-and-trade emission controls, while sometimes appropriate for general air pollutants like sulfur dioxide and nitrogen oxides, are inappropriate for mercury because they can allow localized deposition of mercury to continue unabated near plants that choose not to reduce emissions, perpetuating hot spots and hot regions that can significantly impact the health of individual communities.

Through mercury deposition, mercury enters the food chain and ultimately is consumed by humans, resulting in severe harm, particularly when ingested by pregnant or nursing mothers or young children. Children can suffer permanent brain and nervous system damage from exposure to even low levels of mercury — exposure that frequently occurs while mothers are pregnant. Mercury exposure can cause attention and language deficits, impaired memory, and impaired visual and motor functions.

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per year nationwide.

EPA studied the health hazards posed by toxic emissions from power plants, including mercury, and determined in 2000 that power plants must be regulated under Section 112 of the Clean Air Act, which requires that “maximum achievable control technology” (MACT) be used to control those emissions. The de-listing rule that EPA published on March 29 exempts power plants from regulation under Section 112, reversing EPA’s prior determination that the strictest controls are necessary to protect public health.

A strict MACT standard, as required by the Clean Air Act, would reduce mercury emissions to levels approximately three times lower than the cap established in the cap-and-trade rule EPA published today. EPA’s cap-and-trade rule will reduce mercury emissions from power plants from the current level of 48 tons per year to 15 tons per year. MACT controls, on the other hand, would reduce emissions at each facility by about 90 percent, reducing total mercury emissions from power plants to about 5 tons per year. Moreover, the new EPA rule extends the deadline for compliance from 2008 to 2018, with full reductions not expected until at least 2026.

Exposure to the most toxic form of mercury comes primarily from eating contaminated fish and shellfish. However, fish advisories, which have been adopted by EPA, are not an adequate substitute for appropriate regulation of mercury emissions under the Clean Air Act.

Scientists estimate up to 600,000 children may be born annually in the United States with neurological problems because of mercury exposure while in the womb. Fish from waters in 45 of our 50 states have been declared unsafe to eat as a result of poisoning from mercury.

Wisconsin has issued a statewide fish consumption advisory for all inland waters due to mercury contamination, which includes nearly 15,000 lakes and 32,000 miles of rivers located within the state, as well as Lakes Michigan and Superior and the Mississippi River on its borders.