Under intense pressure from states and local and national environmental and public health groups, the U.S. Environmental Protection Agency announced in a recent court document plans to regulate mercury pollution from over 100 cement kilns across the country by September 2009. The announcement marks a dramatic shift in EPA policy which, until now, had been to resist requiring mercury controls for cement kilns.
"After nearly a decade of litigation and multiple court orders directing EPA to regulate mercury from cement kilns, it seems the agency is finally paying attention," said Earthjustice attorney James Pew.
Three times in the last ten years, federal courts have ordered EPA to set emission standards to control cement kilns' mercury emissions. Until now, EPA has ignored these orders or sought to evade them. EPA finally indicated that it would set mercury emission standards in papers filed on February 20, 2008, in a fourth case brought by Earthjustice on behalf of Sierra Club, Downwinders at Risk (TX), Friends of Hudson (NY), Montanans Against Toxic Burning, Desert Citizens Against Pollution (CA), and the Huron Environmental Activist League (MI). The States of New York, Michigan, Connecticut, Illinois, Maryland, Delaware, Massachusetts, New Jersey, and Pennsylvania also filed suit.
"Cement kilns are among the nation's worst polluters, and their free ride on mercury pollution needs to end at long last," said Jane Williams, executive director of Desert Citizens Against Pollution.
Cement kilns pumped nearly 12,000 pounds of mercury into the air in 2006, according to EPA's Toxics Release Inventory (TRI). However, the TRI depends on voluntary emissions estimates that may significantly understate kilns' actual pollution levels. Individual cement kilns in New York, Michigan and Oregon routinely understated their emissions until being required by State officials to conduct emissions tests -- at which point it was evident that their actual emissions were approximately ten times higher than previously reported. The Lafarge kiln in Ravena, New York previously reported mercury emissions of only 40 pounds. It now acknowledges emitting more than 400 pounds per year.
"One of California's biggest mercury polluters is a cement kiln in Davenport, California, just across the street from the Monterey Bay National Marine Sanctuary," said Kristen Raugust, a member of the Executive Committee of the Santa Cruz County Group of the Sierra Club. "Hopefully, the EPA will finally do something about this pollution and protect both our fragile marine environment and local children from the harmful effects of mercury."
According to a 1991 article in Science News, it only takes 1/70th of a teaspoon of mercury to contaminate a 25-acre lake. Over 40 states have warned their citizens to avoid consuming various fish species due to mercury contamination; over half of those mercury advisories apply to all waterbodies in the states.
Mercury is a dangerous neurotoxin that can impair a young child's ability to walk, talk, read, write and learn. While the mercury pollution from these kilns is staggering, they are also major emitters of toxic organic compounds, such as benzene and formaldehyde, known carcinogens. In the court documents, EPA also pledged to set emission standards for these pollutants as well.
"It is a good thing Americans can hold their government accountable for breaking the law," said Marti Sinclair, Sierra Club's National Air Committee Chair. "The cement industry has far too much clout at EPA. If the courts hadn't put a stop to its scofflaw behavior, the agency would never have made this industry clean up."
Ten Years And Four Lawsuits To Bring EPA Into Compliance With Clean Air Act
Sierra Club first filed suit in 1998, after EPA failed to meet a November 15, 1997 deadline to issue air toxics regulations for cement kilns. In that case, the United States District Court for the District of Columbia ordered the agency to do so by May 15, 1999.
When the agency issued the overdue regulations, however, it refused to include standards to control cement kilns' mercury emissions. Sierra Club, represented by Earthjustice, challenged that decision in the United States Court of Appeals for the District of Columbia Circuit, which found in 2000 that the agency's refusal violated the federal Clean Air Act and ordered the agency to set mercury standards.
EPA ignored the D.C. Circuit's order until 2004, when Sierra Club brought a third suit, which resulted in an order requiring EPA to issue the required mercury standards no later than December, 2006.
In 2006, the agency issued another rule refusing to set mercury standards. On this occasion, it was sued not only by local and national environmental groups, but also the States of New York, Michigan, Connecticut, Illinois, Maryland, Delaware, Massachusetts, New Jersey and Pennsylvania. That case was held in abeyance from 2006 until now, when EPA was forced to indicate whether it wished to set mercury standards or litigate the issue a fourth time. The agency indicated in a motion to the court that it expected to propose mercury standards by "mid-September 2008" and issue them by "mid-September 2009."
James Pew, Earthjustice, (202) 667-4500
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.