Earthjustice, which is representing the two groups, filed the suit today in the Court of Appeals for the D.C. Circuit (D.C. Cir. No. 04-1048). In a separate legal action, NRDC petitioned EPA to reconsider the rule and set standards guaranteeing reductions in the plants' toxic mercury emissions.
Only nine chlorine plants in the United States still use an outdated mercury process. These plants buy tons of mercury each year to replace mercury that evaporates from the giant vats they use to make chlorine. Each plant has more than 50 of these mercury vats (called "cells" in the industry) measuring approximately 50 feet long by more than five feet wide, each holding some 8,000 pounds of mercury. In 2002, the nine plants purchased 130 tons of mercury destined for the cells. In 2000, the facilities added far more mercury to their cells than they reported released, resulting in 65 tons of unaccounted for mercury in that year alone. By contrast, coal-fired power plants emit about 48 tons of mercury into the air every year.
"The amount of mercury that these plants are 'losing' dwarfs the estimated 48 tons of mercury emitted by coal-fired power plants, and it's all disappearing from nine outdated factories," said Jim Pew, the Earthjustice attorney representing the groups in the case.
The EPA publicly acknowledges that it cannot account for the mercury each plant must replace every year. The agency concluded in its December rule that "the fate of all the mercury consumed at mercury cell chlor-alkali plants remains somewhat of an enigma."
"It's outrageous that the EPA has no apparent interest in discovering what happens to 65 tons of mercury, much of which these plants likely emit into the air, and plans to do nothing about it," said Jon Devine, an NRDC attorney. "The agency apparently has forgotten what its name stands for."
The new EPA rule fails to set emission standards for the evaporated mercury. Instead, it establishes certain "housekeeping" requirements that the agency claims will reduce emissions, without specifying a goal for these reductions. Further, EPA made those housekeeping requirements optional. The plants can opt out of them if they choose to measure their mercury emissions.
"It's clear the Bush administration is not serious about reducing the public's exposure to this toxin," said Pew.
EPA argues that measuring mercury emissions is not feasible for chlorine plants because the evaporating mercury escapes through open doors and vents in the ceiling, not through a smokestack. But an EPA regulation established in 1975 specified that chlorine plants could measure their emissions by routing evaporated mercury to smokestacks, and required them to keep their mercury emissions below 2,300 grams per day. The new EPA rule eliminates this requirement, allowing the plants to emit unlimited amounts of mercury. Given that the average chlorine plant loses more than 17,000 grams of mercury every day, the groups believe that EPA's decision to revoke the pollution cap is irresponsible.
The groups also maintain there is no reason for these plants to continue consuming mercury to produce chlorine. Nearly 90 percent of the chlorine produced today is made with mercury-free technology.
"Here is yet another example of the Bush administration putting our children and communities at risk from toxic mercury pollution," said Navis Bermudez, Washington representative at the Sierra Club.
Mercury is a potent neurotoxin that, like lead, especially threatens the brains and nervous systems of fetuses and young children. A number of neurological diseases and problems are linked to mercury exposure, including learning and attention disabilities, and mental retardation. Mercury also might be linked to the recent increase in autism, Parkinson's disease and Alzheimer's disease.