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Conservation Groups Challenge Weak EPA Mercury Rule for Power Plants

Victory: Lawsuits filed challenging EPA approach at curbing power plant toxic air emissions
May 17, 2005
Washington, D.C. —

Clean air and public health advocates today filed legal challenges in federal court, challenging the Environmental Protection Agency's (EPA's) approach for reducing toxic air emissions from power plants. Rather than adopt a rule that limits this pollution, the groups contend, EPA unlawfully removed power plants from the list of industrial pollution sources for which the Clean Air Act requires strong air toxic standards.

"Mercury does not affect everyone equally," said Sierra Club Executive Director Carl Pope. "The EPA's job is to 'protect human health and the environment' but what it's really doing is putting more women and children at risk of mercury poisoning."

The Clean Air Act, as amended in 1990, requires that EPA set the strongest limits on toxic air emissions like mercury from listed industries as much as is technologically feasible. In the United States, coal-burning power plants are the largest unregulated man-made source of mercury to our air. Collectively, they spew about 45 tons of mercury and more than 350,000 tons of other air toxics into the air each year.

"We are compelled to take legal action because EPA's rule reflects flawed science, a flawed reading of the law and a failure to protect the nation's most vulnerable populations from the health hazards of mercury pollution," said Environmental Defense attorney Janea Scott.

The EPA's plan delays significant reductions in mercury emissions for decades longer than is possible. According to its own estimates, EPA found there are affordable technologies available right now that can reduce mercury by as much as 90 percent and, coupled with emerging technologies, we could eliminate most of the mercury from utilities with a cost to utility industry revenues of less than one percent. Without EPA's rule, these maximum controls on power plant pollution would go into effect in three years, but the agency instead has created a program that it acknowledges will not be fully implemented until sometime after 2020.

"We have a responsibility to future generations to ensure that toxins like mercury are not in our food chain," said National Wildlife Federation President and CEO Larry Schweiger. "That's the intent of this action today – to get EPA to live up to that responsibility."

Mercury is a developmental neurotoxin that can affect fetuses developing in the womb, young children, and at higher doses, can lead to serious health effects in adults. EPA scientists estimate that one in six women of childbearing age has mercury levels in her blood that are high enough to put a baby at risk. Nationwide, as many as 630,000 infants are born every year with unsafe mercury levels, putting them at risk of cognitive and developmental damage.

EPA decided that rather than setting new limits for power plant pollution as required under the Clean Air Act, the agency would simply remove power plants from the list of facilities subject to the strict air toxic provisions in the Act.

"EPA is refusing point blank to set the protective emission standards for power plants that the Clean Air Act requires," said Staff Attorney James Pew of Earthjustice, which filed suit on behalf of Sierra Club, Environmental Defense and the National Wildlife Federation. "Instead of protecting the public from pollution, this agency is doing its best to protect polluters from the law."

Mercury emitted by power plants settles on the nation's waters and bioaccumulates up the food chain. Every year the number of lakes, rivers and streams under mercury fish consumption advisories increases. Human exposure is primarily through the consumption of contaminated fish. Currently, 44 states have issued fish consumption advisories due to mercury contamination in some or all of the state's waters.

The agency's mercury rule sets the stage for a cap-and-trade system for mercury emissions from power plants that is completely unsuitable for reducing mercury levels. A system in which some plants must control but others may escape control creates mercury hotspots – or areas of even greater mercury contamination – near power plants across the country.

The suit joins separate legal challenges being brought by Clean Air Task Force on behalf of Ohio Environmental Council, Natural Resources Council of Maine and U.S. Public Interest Research Group and the Natural Resources Defense Council (NRDC). Conservation Law Foundation, Waterkeeper Alliance and Chesapeake Bay Foundation have also filed legal challenges against EPA's rule. At least 13 states are also actively litigating EPA's mercury rule.

A copy of the petition for review can be found here.

Contacts

James Pew, Earthjustice 202-667-4500

Lisa Swann, National Wildlife Federation 703-438-6083

Christina Kreitzer, Sierra Club 415-977-5619

Janea Scott, Environmental Defense 212-616-1267

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