Mercury and Bush’s Not-So-Clear Skies: The Bush Administration Plan for More Coal Plant Mercury Emissions Over a Longer Period

by Zach Corrigan

"I have sent you Clear Skies legislation that mandates a 70 percent cut in air pollution from power plants over the next 15 years," President George Bush said to applause from the assembled Members of Congress during his January State of the Union speech.

Senators James Inhofe, R-Oklahoma, and George Voinovich, R-Ohio, and Representatives Billy Tauzin, R-Louisiana, and Joe Barton, R-Texas, followed up in February by formally re-introducing Bush's air pollution plan in Congress.

Environmental Protection Agency (EPA) Administrator Christie Whitman greeted the bill's introduction with grand and sweeping praise, and predictions of a brighter future. "Clear Skies would deliver far-reaching benefits while maintaining energy diversity, and continuing the trend of lower electricity prices," she said. "Almost immediately following its passage into law, Clear Skies would generate health and environmental benefits from reduced air pollution."

"When fully implemented," she said, "Clear Skies would prevent thousands of premature deaths each year, providing billions of dollars in benefits, save millions of dollar in health care costs, and increase by millions the number of people living in areas that meet the national requirements for healthy air. It would also virtually eliminate chronic acidity in the northeastern lakes and help restore visibility at our national parks."

Yet the promises of massive mandatory reductions in air pollution notwithstanding, the bill has been praised by industry and condemned by environmental advocates.

"The Clean Air Act has produced substantial improvements in air quality over the last three decades," says Thomas Kuhn, president of the Edison Electric Institute, the electric utility trade association, of the legislation long opposed by the industry. "The question is whether there's a better way to reduce power plant emissions even further ó an approach that guarantees continued air quality improvements while maintaining a reliable and affordable supply of electricity. We think the Clear Skies Initiative is headed in the right direction."

Environmental critics counter that the bill's mercury provisions are illustrative of how the Bush administration's proposals will weaken public health protections in ways that will allow older, coal-burning power plants to emit more pollution over a much longer period of time than would be permitted under current law.

"The President's air pollution plan could actually allow more power-plant pollution, including mercury, than faithful enforcement of existing law," says Angela Ledford, director of Clear the Air. "The administration's plan cannot meet its rhetorical aims. It claims to clean up the air but actually weakens existing safeguards."

Mercury Hazards

The electric power industry is the largest industrial source in the United States of the pollutants that form smog, particulate matter and acid rain, reduce visibility in national parks, contribute to global warming and cause mercury contamination of the food supply. While many other industrial sectors have been subject to aggressive emission limits over the last 30 years, the electric industry has frequently used litigation and lobbying to avoid having to upgrade its facilities. As a result, there are hundreds of older, coal-burning power plants using pollution control technologies that date back to the 1950s and 1960s, or no pollution controls at all. Nowhere is this more true than in the case of mercury.

Mercury is a toxic metal that, when ingested, can lead to neurological damage, especially in young children and fetuses whose nervous systems are still developing. Health effects linked to prenatal mercury exposure include mental retardation, impaired motor and visual function, and autism. The Centers for Disease Control and Prevention (CDC) estimated in a January 2003 study that 8 percent of U.S. women of child-bearing age have elevated levels of mercury from eating contaminated fish, and approximately 322,000 newborns are at risk of neurological problems due to exposure in utero.

Mercury emitted by power plants and other sources finds its way into the food chain by bioaccumulating in fish tissues. The problem worsens as it moves up the food chain; small fish eat tiny fish, absorbing their mercury load, larger fish eat those small fish, adding to their own mercury loads, and on up the food chain until humans. To date, 44 states are posting mercury advisories warning people to limit consumption of fish from more than 10 million acres of lakes and more than 410,000 miles of rivers.

Roughly one third of the mercury emitted into the air in the United States comes from coal-burning electric power plants.

Pending Reductions

After years of delay, the Clean Air Act is on the cusp of delivering major reductions in mercury pollution from power plants, with rules scheduled to be proposed this year that could require as much as 90 percent cuts from each plant. The Bush Administration's power plants bill would scrap these rules in favor of a mercury cap that would give the industry an additional 10 years of delay, and would offer far less protection than would implementation of current law.

When Congress amended the Clean Air Act in 1990 and required the agency to regulate a number of hazardous air pollutants from various sources, it first required EPA to conduct additional studies on mercury from power plants before regulating. Consequently, the threat of mercury emissions from power plants has been the subject of a large number of extremely thorough studies, but no regulations to date.

EPA has submitted two major reports to Congress. The first report, released in 1997, found that between 1 and 3 percent of women of child-bearing age eat sufficient amounts of fish to be at risk from mercury exposure. This number has been revised upward in subsequent studies. In 1998, the second report established a link between power-plant mercury emissions and the mercury found in soil, water, air and fish.

In countering the growing pressure to regulate the industry, utilities argued that there were still uncertainties about the toxicological effects of mercury. In 1999, a provision was inserted into the EPA appropriations bill directing the agency to postpone regulation until another study was conducted on the health impacts of the mercury exposures.

The result was a 2000 report done by the National Research Council (NRC) that verified previous EPA findings on the toxicological impacts of mercury.

"The population at highest risk is the children of women who consumed large amounts of fish and seafood during pregnancy," the NRC report concluded. "The risk to that population is likely to be sufficient to result in an increase in the number of children who have to struggle to keep up in school and who might require remedial classes or special education."

These reports prompted a 2000 EPA announcement that mercury regulation was warranted.

Since that time, the EPA has met with state officials and regulators, industry representatives and environmentalists to discuss the EPA's regulatory plans.

The industry's line is that there is no scientific basis for regulation.

"Current research and information do not indicate that there is a direct link between electric utility mercury emissions and public health concerns," according to the Edison Electric Institute.

"Still, utilities are taking steps to reduce mercury emissions as a component of their ongoing pollution prevention programs. As EPA moves forward to regulate utility mercury emissions, EEI will work closely with the agency as it determines the extent to which mercury reductions from power plants may be needed and how those reductions should be achieved."

But current law requires the EPA to do more than the industry wants. Under the law, the agency must issue "maximum achievable control technology" standards for each coal-fired power plant, with compliance due by the end of 2007. According to a December 2001 EPA presentation, an overall emission reduction of 90 percent is achievable. This would result in nationwide emission levels of about 5 tons per year, while ensuring that every community with a coal-burning power plant would get significant mercury reductions.

The Clear Skies Alternative

The Bush administration's plan eliminates the current regulatory system and instead caps mercury at 26 tons in 2010 and 15 tons in 2018. This is three times as much power-plant mercury pollution as could be allowed under current law, and is a delay of 10 years from the mandated timeline in current law. In the end, the Bush plan will allow 264 more tons of mercury emissions by 2018 than would the current regulatory approach.

Another important difference between the current law and the Bush proposal is that the administration would allow emissions trading for mercury. Under such a scheme, now in place for certain power plant pollutants, facilities that reduce pollution by more than required levels can sell their excess savings to other facilities, which can exceed the required level by whatever amount they are able to purchase on the open market.

Such a trading program would be unprecedented for a pollutant like mercury that is a persistent bioaccumulative toxin. It could result in the development of toxic hot spots in communities where power plant owners purchase credits rather than reduce emissions.

In defending its Clear Skies legislation, EPA disowns its earlier statements on what is likely to occur under the Clean Air Act. "The emission reductions that would be required" under the existing Clean Air Act mandated federal standard for the end of 2007 "are still highly uncertain," the agency claims in a fact sheet touting the benefits of Clear Skies.

In critics' eyes, EPA is simply justifying weakening the law by arguing that it does not intend to faithfully implement Clean Air Act mandates.

A Concern for Evidence

The administration's wavering course on mercury regulation was further evidenced in its treatment of an EPA report, "America's Children and the Environment: Measures of Contaminants, Body Burdens and Illnesses," ultimately released in February 2003.

The report concluded, among other things, that mercury exposure was a threat to children, and reiterated the CDC finding that 8 percent of child-bearing age women have blood levels potentially endangering fetuses (5.8 parts per billion or higher). The report also noted that "current research indicates there is no safe level of methylmercury in the blood within the range of exposure measured in the human studies of the health effects of mercury, which were as low as one part per billion. About 50 percent of women of child-bearing age in the United States have at least one part per billion of mercury in their blood." And the report discussed the increase in state advisories warning people not to eat the fish as an "emerging issue."

The release of the report was delayed for nine months, and the report faced an unusual level of scrutiny by a half-dozen other federal agencies, including the White House's Office of Science and Technology Policy. Many observers speculated that the administration was concerned about the political ramifications of the report's release. When the report was released, after a Wall Street Journal article documented the delay, the accompanying press release failed to mention the ongoing regulatory process, instead, pointing to the Clear Skies bill as the agency's mercury solution.

The utility industries' response was a familiar one: "Recent exaggerations of the actual risks posed by mercury exposure are without merit and serve only to unduly alarm the public," said the Edison Electric Institute in a statement.

The Pampered Electric Utilities

Clean air advocates say mercury is just one example of how the Bush administration's air pollution plan dismantles current law and replaces it with far weaker protections on a far slower timeline. The same is true to varying degrees for smog and particulate matter. Moreover, the president's plan allows continued emissions of unlimited amounts of carbon dioxide from the power sector.

The president has said passing the Clear Skies legislation is a top priority in this session of Congress. If the bill gains momentum, it is likely to come from support from industry groups such as the Edison Electric Institute.

Public health and environmental groups are opposing the legislation. They are instead supporting the Clean Power Act, a bill introduced by Senators Jim Jeffords, I-Vermont, Susan Collins, R-Maine, and Joseph Lieberman, D-Connecticut. The Clean Power Act would leave the current Clean Air Act programs intact, while integrating a program for reducing power-plant pollution by 75 percent.

Zach Corrigan is a staff attorney and clean air advocate with the U.S. Public Interest Research Group.