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Mercury Policy (12-2-04)

Concern over the possible health effects of mercury contamination is getting increased attention nationwide. Humans are exposed to mercury primarily through consumption of fish that contain high levels of mercury from deposition of atmospheric mercury released by power plants. In 2001, 49 states issued 2,618 fish advisories due to high mercury concentrations. There are currently no regulations to control mercury emissions specifically from power plants, but efforts are underway. The Environmental Protection Agency (EPA) is expected to propose rules it has been developing since 2000. Also, the president's Clear Skies Initiative and congressional efforts to amend the Clean Air Act might reduce mercury emissions from power plants before the EPA's rules are implemented.

The EPA released a report on December 1st summarizing the 680,000 public comments on proposed mercury regulations for coal fired power plants, according to an article in Greenwire. The 73-page Notice of Data Availability (NODA) reviews four modeling scenarios performed by environmentalists from the Center for Clean Air Policy and the Clean Air Task Force and industry's Edison Electric Institute and Cinergy Corp. The environmentalist and industry models came to substantially different conclusions over the economic effect of stringent mercury regulation. According to Greenwire, "the environmentalists' models show it is possible to reach substantially stronger mercury cuts between 2010 and 2020 with relatively modest cost implications for the power sector. But industry countered with studies that find some coal units would need to be shut down because mercury control technologies would not be available under such stringent regulatory conditions, thereby driving up short-term power prices."

The EPA must issue a final rule by March 15, 2005. The agency is calling for additional comments on the different forms of mercury emitted from a power plant's flue gas, as well as the percentage of each mercury type and also how the percentages affect analysis of how power industry would respond to different emission control levels. The comment period on the NODA is effective from now until December 31st. (12/2/04)

On February 28, 2003, the Environmental and Energy Study Institute, the Northeast Midwest Congressional Coalition, and the Water Environmental Federation, in cooperation with the U.S. Geological Survey, held a congressional briefing on mercury focusing on recent research into the mercury cycle. The briefing examined mercury sources, variables involved in methylation (the microbial transformation of mercury into methylmercury, the most dangerous form of mercury due to its easy absorption in the intestines), how mercury is transported through the ecosystem, and how the residence time of mercury in aquatic systems affect biological contamination. On March 7th, 2003, a second briefing was held to focus on regulatory and legislative policy options for controlling mercury emissions, including the Maximum Achievable Control Technology (MACT) program being developed by the EPA, the Clear Skies Initiative, and S.366 introduced by Jim Jeffords. (3/12/03)

In February 2003, mercury contamination recently re-emerged as an issue on Capitol Hill after the release of two reports indicating mercury levels are higher -- and the resulting health effects more severe -- than previously thought. The first report, America's Children and the Environment released by the EPA, found that 1 in 12 women in the U.S. had mercury levels at the upper limit of what is considered safe, placing 300,000 children at risk for brain damage. Another report by the United Nations Environmental Program calls for significant and rapid cuts to global mercury emissions after finding that 1,500 tons of mercury are emitted annually from coal-fired power plants (almost 70% of all atmospheric mercury). The majority of these emissions originate in Asia and Africa, but mercury deposition from the atmosphere occurs globally. (3/12/03)

On November 5th, the House Science Subcommittee on Environment Technology and Standards held a hearing about the state of science and technology surrounding the mercury debate. The panel heard from academic, government, industry and environmental experts about the ongoing regulatory and legislative efforts to control mercury emissions from the utility industry. The testimony led members to conclude that there is "compelling evidence" of the health effects of mercury contamination. To learn more about this hearing, click here.

The Senate Environment and Public Works Committee heard testimony on July 29th about the human health effects of mercury emissions. In addition to a toxicologist and a professional from the electricity industry, Dr. Gary Myers, a pediatric neurologist, professor at the University of Rochester, and member of the University of Rochester team that has been studying the human health effects of mercury for nearly 30 years appeared before the Committee. For more information about the hearing, click here.

The Food and Drug Administration (FDA) has partnered with the Environmental Protection Agency (EPA) to propose new guidelines about consuming fish and shellfish with elevated levels of harmful mercury, a potent neurotoxin that, like lead, can damage the brains and nervous systems of fetuses and young children. The advisory, currently in draft form, cautions pregnant women, nursing mothers, those thinking of getting pregnant and young children to limit their consumption of tuna. The government is also advising consumers to mix the types of fish they eat and not to eat any one kind of fish or shellfish more than once a week. This dovetails with a previous FDA warning that pregnant women should not eat shark, swordfish, king mackerel and tilefish because they contain unusually high levels of mercury.

The Food Advisory Committee met on Thursday, December 11th. They reviewed the guidelines and recommended the advisory contain more explicit advice on tuna, lists of fish species that are low-risk and high-risk for mercury content, examples of how much fish children should eat and refinement of portion sizes for adults. The final directive should be issued in spring 2004. Following that, the FDA will initiate an outreach and educational program for at-risk populations. The FDA's announcement and draft advisory can be accessed by clicking here. (12/11/03)

On December 30th, the Washington Post reported that the U.S. Environmental Protection Agency's (EPA) newly proposed rule on mercury was a radical shift away from work that a government task force had been doing. For 21 months this EPA-sponsored working group with a well-regarded mix of utility industry representatives, state air quality officials and environmentalists, steadily moved toward recommending rules that within three years would force every coal-fired power plant in the country to reduce emissions of mercury. Without settling on specific emission reductions, the panel agreed that all 1,100 of the nation's coal- and oil-fired power plants must use the "maximum achievable control technology" (MACT) to reduce mercury and other hazardous pollutants. But in April 2003, the EPA dismantled the panel. John A. Paul, the working group's co-chairman, told the Post that "members were given no clue why their work was halted."

Things have become clearer since the Bush Administration announced it was taking an entirely different approach. This proposed route mirrors President Bush's "Clear Skies" legislation, which is stalled in Congress. It uses a more flexible portion of the Clean Air Act and technically downgrades the danger of mercury pollution. Under this plan, utility companies would be granted 10 more years to develop and install new anti-pollution equipment. Additionally, a cap-and-trade system would be launched that would allow utilities to buy emissions "credits" from lesser-polluting companies to meet an overall industry target (the cap) without having to install new scrubbers or anti-pollution equipment on every plant. This new approach will still cost the industry billions of dollars to meet long-term goals but it is far less expensive and less onerous than the MACT approach that the task force had been pursuing. Utilities would have until 2018 to cut emissions by 70 percent.

If this proposed rule does become final, it may not stand up in court due to the shift between sections of the Clean Air Act and the treatment of mercury as a lesser pollutant. As a legal hedge, the administration has also proposed a second mercury regulation that would provide a 29 percent reduction in emissions and require all plants to install pollution controls. According to the Post, "the EPA had to offer that proposal to comply with a legal requirement, and [EPA Administrator Michael] Leavitt and other officials made it clear it was not their first choice." (1/8/04)

In late January, ten House Republicans sent a letter to President Bush asking for revision to the EPA's proposed mercury cap-and-trade program. The representatives agree that the trade program will cut pollution and be simpler to administer and enforce. They are worried; however, that a national trade system could lead to elevated mercury deposition levels across the country. Instead, these ten Congressmen are advocating for a regional trading plan that would allow credit trading among a certain number of bordering states. As the plan stands now, a power plant in Illinois could trade with a plant in Wyoming leaving the mid-west with elevated mercury levels. A regional plan would eliminate mercury hot spots. Hearings on the mercury rule could take place as early as the end of February. (2/1/04)

At a Senate Environment and Public Works Clean Air Subcommittee hearing on April 1st, EPA administrator Mike Leavitt rejected a petition by 45 senators seeking to have the Bush Administration withdraw its regulatory proposal for mercury emissions from power plants and submit a new one. The letter from the bipartisan group of senators said that the Administration's proposal permits "far more mercury pollution, and for years longer, than the Clean Air Act allows." Environmentalists say that the Bush Administration should set the standards as high as possible when it comes to mercury regulation, and argue that more stringent thresholds will spur better mercury-reducing technologies. However, the utility industry is already spending hundreds of millions of dollars on research and is asking the EPA to take a practical approach and not ask too much in a tight timeframe.

The Bush Administration's preferred plan would establish emission caps for mercury at 34 tons annually by 2010 and 15 tons by 2018. It would also allow power plants to bank credits for emissions reductions that exceed facility goals and sell those credits to other plants that fail to meet the regulations. However, the EPA is also considering a Maximum Achievable Control Technology (MACT) standard, which would require state-of-the-art pollution controls and would drop emissions to 34 tons annually by early 2008. At the hearing Senate Democrats questioned why an EPA Office of Research and Development analysis that shows existing pollution control technologies under the MACT approach could reduce mercury emissions between 70 and 90 percent by 2010 was not given more weight in the Administrations plan. (4/12/04)

Six Democratic Senators and one Independent called for an investigation by the Environmental Protection Agency (EPA) inspector general of the agency's procedures in writing the latest rule to control mercury pollution. The Senators charge that the new rule is so lax that it threatens to undermine enforcement of the Clean Air Act. They accuse the new rule of containing language written by industry lawyers and false information inserted by the White House. The EPA was under a court order to issue the rule, which requires owners of power plants to install the "maximum available control technology" for removing mercury gases from their smokestacks. Plant owners are arguing against strict mercury controls, saying that reliable technology is not available to remove mercury from smoke.

The EPA convened an expert advisory committee under the Clinton Administration to start drafting the mercury rule. The committee had 14 meetings and had submitted four different recommendations, ranging from stringent controls advocated by environmentalists to far less stringent controls proposed by industry representatives. The EPA was supposed to review the recommendations and announce the results in an April 2003 meeting, which was cancelled. The new proposed rule would result in the removal of even less mercury than the industry representatives had recommended. (4/16/04)

In a briefing sponsored by the Water Environment Federation, USGS, and Rep. Ralph Regula (R-OH), national and regional coordinators of the National Water Quality Assessment Program presented findings of several regional water quality assessments carried out between 1991 and 2001. The NAWQA study found that mercury in forested streams is more likely to pose a threat to humans than mercury in urban streams. In the conditions of forests and wetlands, mercury in the air is converted to methylmercury, which bioaccumulates in fish. This process is not as prevalent in the urban environment. Although urban streams have higher levels of mercury, it is bound up in sediments and is not as likely to be consumed by humans. The NAWQA study emphasizes the variability of the effects of substances such as mercury under different chemical conditions. Timothy Miller, USGS Water Quality Chief, cites both human and natural factors as causes of variability of watershed response to pollution. (5/18/04)

United States EPA Inspector General Nikki Tinsley told the press on May 13th that she will investigate the Bush administration's proposed mercury rule. Independent Vermont Senator Jim Jeffords led the call for the investigation, arguing that the rule may violate the Clean Air Act. Jeffords and six Democratic Senators have also voiced suspicions that industry interests are prioritized in Bush's policies. (5/19/04)

The White House Interagency Working Group on Methylmercury has made recommendations that the federal government test mercury levels of fish and humans near the Gulf of Mexico. The panel, created in 2002, is comprised of representatives from the Environmental Protection Agency, the Energy Department, and the Interior Department. Senator Jeff Sessions (R-AL), who requested the formation of the panel, said that he thinks the public needs to know the risks of eating certain fish from the Gulf of Mexico. (6/18/04)

Eleven states filed complaints June 28th against the Bush administration's mercury emissions cap and trade proposal, arguing the plan would not sufficiently lower atmospheric mercury levels. The states who submitted comments were California, Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, New Mexico, Vermont and Wisconsin. The program sets a limit, or "cap", on mercury emissions and then allows power plants to emit higher levels of mercury by purchasing credits ("trade") from power plants that emit less. It has been scrutinized for its questionable technological feasibility and uneven geographic and demographic impacts. The current plan calls for an emissions cap of 34 tons in 2010 and 15 tons in 2018, but officials have recognized that the 15-ton benchmark cannot be realistically achieved until 2030. A proposed alternate idea endorsed by many environmentalists is the Maximum Achievable Control Technology, which would set strict limits on the mercury emissions of 1,200 power plants across the country. (6/29/04)

The environmental coalition Clear the Air is calling for action on an Environmental Protection Agency study that found high mercury levels in freshwater fish. In a report released August 2nd, Clear the Air said that 55 percent of freshwater fish samples had methylmercury levels above EPA safety standards and also violated some Food and Drug Administration standards, particularly in predatory fish. Clear the Air used EPA data to make its case, although the groups differ on data evaluation. An EPA spokeswoman said that only 43 percent of the fish tested exceed EPA National Water Quality Criterian of 0.3 ppm, which is safe for those who eat about two servings of fish per month. Clear the Air argues in its report that sensitive groups such as pregnant women and highly consumptive groups such as recreational and sports fishers may have higher risk of harmful exposure. The group notes that 80 percent of predatory fish exceed safety limits for women. Clear the Air is calling for a 90 percent reduction in mercury emissions by 2008, while the Bush administration advocates a cap-and-trade program to reduce mercury emissions 70 percent by 2018. (8/5/04)

The Environmental Protection Agency will publish new rules on power plant mercury emissions by March 15, 2005. EPA administrator Mike Leavitt said in a presentation (Greenwire subscription req.) in upstate New York that the agency will finalize its plan for a cap-and-trade system limiting annual emissions to 34 tons by 2010 and 15 tons by 2018. He also said that the agency will finalize new rules on sulfur dioxide and nitrogen dioxide emissions by the end of the year. Environmentalists have criticized the mercury plan, claiming that it was largely written by industry, and noting a current EPA inspector general investigation of the rule. Mercury rules will have the largest impact on coal-fired power plants, which account for 41 percent of mercury emissions. (8/12/04)

On August 18th Greenwire reported that a coalition of over 50 Midwest environmental groups released a series of reports on the impact of mercury contamination in the region on the sportsfishing industry. The coalition said that the total cost to the industry in four states--Minnesota, Wisconsin, Michigan, and Ohio--exceeds $1.8 billion annually, threatening thousands of jobs. The greatest cost will be incurred by Minnesota, with a projected $706 million annual loss due to a 25 percent decrease in the sport. The American Sportsfishing Association estimates that 34 million people spend $41.5 billion annually fishing.

The environmental groups that released the reports suggest that mercury pollution from coal-fired power plants be reduced by 90 percent. Fish accumulate methylmercury when the contaminant enters waterways from polluted air. Environmentalists have expressed disagreement with the Bush administration's preferred cap-and-trade approach to limiting mercury emissions, which will be specified next March. Coal industry representatives maintain that the proposals of the environmental groups who released the reports are unrealistic and single out the coal industry while there may be other sources of mercury contamination. They also note that global mercury emissions not under U.S. control contribute significantly to contamination. (8/20/04)

U.S. Environmental Protection Agency (EPA) officials announced on August 24th that mercury contamination in the nation's waters have reached an all-time high. This conclusion was based on the fact that the number of fish advisories issued between 2002 and 2003 has increased by roughly 6 percent in lakes and 35 percent in rivers. EPA Administrator Mike Leavitt attributed these statistics to the rise in assessment of the nation's waters through monitoring and fish sampling. He also stated that manmade mercury emissions are decreasing, with power plant emissions dropping 45 percent between 1990 and 1999. Rising levels, he explained, are partly due to pollution from other countries, specifically Asia, which accounted for 53 percent of global mercury emissions in 1995. Leavitt also acknowledged the wide variety of testing and warning programs administered throughout the states. Washington and Montana, for example, are the first states to issue statewide advisories of mercury contamination rather than posting warnings for specific sites.

The upward flux of advisory warnings has spurred significant economic consequences. The seafood industry is concerned that mercury warnings will deter consumers from taking advantage of the health benefits offered by consuming fish. Several states, including Minnesota, Wisconsin, Ohio, and Michigan, have significant stake in the recreational fishing industry and have been worried that increased mercury pollution will continue to threaten jobs and cost the state millions in lost revenue. In response to the increase in mercury contamination, the Bush administration has focused on two options. The first, an across-the-board cap on mercury emissions favored by environmentalists, would set limits for each pollution source, as dictated by the "maximum achievable control technology" (MACT) standards. The Administration prefers another choice, which is a cap-and-trade program that would enable industries to trade pollution credits under a national emissions standard. (8/25/04)

Energy Policy, Natural Resources, and Regulatory Affairs Subcommitee Chairman Doug Ose (R-CA) hosted a hearing entitled "What is the Bush Administration's Record in Regulatory Reform?" on November 17th. Congressmen Kucinich (D-OH), Tierney (D-MA) and Van Hollen (D-MD) were present and heard from a plethora of witness testifying on a myriad of regulatory issues. Some witnesses attested to the effectiveness of the public comment process on rulemaking while others defended or berated the Environmental Protection Agency's (EPA) record of regulation. A particularly contentious issue was the EPA's handling of mercury regulation and the controversy over the cap-and trade approach, favored by the Bush administration, and a Maximum Achievable Control Technology (MACT) approach, favored by environmentalists.

Congress requires by law that the Office of Management and Budget (OMB) submit an annual report that estimates the total costs, benefits and impacts of Federal rules. This report must be informed by public comment. The vast majority of public comments are directed at the EPA and the Department of Labor. Stephen Johnson, Deputy Administrator at the EPA, lauded EPA's progress in responding to public comments, saying, "We have strengthened our regulatory process, invested in sound science and analysis, and been supportive of and responsive to public involvement."

The congressmen in attendance strongly disagreed. Congressmen Kucinich and Tierney fulminated against the EPAs reticence in regulating mercury, a known neurotoxin. According to Kucinich, the EPA was told not to undertake any scientific analysis on the mercury issue and that some of the provisions in the current proposed mercury rule were taken directly from industry language. Johnson acknowledged this but said in his 24 years of experience at the EPA, "it is not unusual for proposals to come from a wide variety of information sources." He also defended the Bush administration by reminding Representative Kucinich that the EPA is going to regulate mercury for the first time.

Congressman Van Hollen later admonished the EPA for promoting a Cap-and-Trade approach to mercury not unlike the emissions trading scheme in the Northeast that mitigated acid rain. Van Hollen and Catherine O'Neil from the Center for Progressive Regulation both argued that a cap-and-trade scheme does not work for a hazardous pollutant. When industry can trade pollution credits, it creates mercury "hot spots" or highly toxic localized environments. Mrs. O'Neil advocated for the MACT approach, which mandates an unequivocal across the board reduction in mercury emissions. Johnson replied that the Bush administration is against the MACT approach because, "we believe in market based approaches to environmental regulation."

In closing statements, Chairman Ose called upon the OMB and other agencies to devote more effort to reviewing existing regulations, especially those nominated by the public for review and reform. He specifically directed EPA to quickly complete and publish modeling results for both cap-and-trade and MACT mercury regulations for public examination. (11/23/04)

As the number of states with fish advisories continues to climb, an improved understanding of the biogeochemical cycle of mercury through atmospheric, aquatic, and biological systems becomes ever more critical in crafting policy affecting water and air quality. Mercury is naturally released into the biosphere through volcanoes, geothermal springs, geologic deposits, and oceans. Anthropogenic sources, which include waste incinerators, wastewater discharges, mining, and power plants (most significantly coal-fired power plants), have nearly doubled the natural amount of atmospheric mercury since the beginning of the industrial age.

After being released into the environment, mercury does not usually remain confined around single point sources. Instead the majority of mercury is released into the air (usually in elemental form) and then dispersed on local, regional, and global scales before being deposited. It is estimated that 40% of mercury deposited in the US originated outside of the country. After deposition, sulfur-reducing bacteria transform mercury into the organic methylmercury through a process called methylation. The amount of mercury transformed to methylmercury, and vise versa, depends on several factors including the concentration of dissolved organic carbon and pH.

Methylmercury is the most toxic form of mercury. It both bioaccumulates (absorbed more quickly than eliminated) and biomagnifies (concentration increases up the food chain). Methylmercury can cause brain damage, nervous disorders, tremors, vision, and memory loss. Some evidence also links methylmercury to cardiovascular, thyroid, and digestive problems. Methylmercury is most commonly ingested by humans through fish consumption. Inorganic mercury is less efficiently absorbed by the body than methylmercury, and thus does not tend to cause serious health problems.

Mercury emissions from municipal waste combustors, medical waste incinerators, and hazardous waste combustors are currently regulated, but other large sources are currently not controlled. In adhering to the Clean Air Act's requirement to assess toxic emissions from power plants, the Environmental Protection Agency (EPA) released in 1997 the Mercury Study Report to Congress that identified fossil-fuel power plants as the largest source of mercury emissions in the country. The report was followed with the Utility Air Toxics Report in 1998 that specifically identified mercury as the toxic posing the greatest concern to public health. The report examined individual power plants and determined that coal-fired power plants released the greatest quantities of mercury, oil-fired plants didn't release as much but still required regulations, and mercury emissions from natural gas-fried plants have a negligible effect on public health.

After studying the possibility of implementing regulations, the EPA announced in December 2000 that it would indeed begin to develop rules to reduce mercury emissions from coal-fired power plants. The regulations will be proposed on December 15, 2003, and after a public comment period the rules will be finalized on December 15, 2004, for implementation by December 15, 2007.

Separate from the EPA's efforts to develop mercury emissions standards, several bills were introduced last Congress to reduce mercury (as well as sulfur dioxide, nitrogen oxides, and in some cases carbon dioxide) emissions from power plants. In the event one of the bills passes this Congress, it will likely remove the requirement for the EPA to develop separate standards. Additional information on multi-pollution legislation is available at http://www.agiweb.org/gap/legis108/cleanair.html.

Sources: Atlanta Journal-Constitution, Congressional briefings, EPA, Food and Drug Administration, Greenwire, USGS, Water Environmental Federation, House Science Committee website, Environment and Energy Daily, The Washington Post and hearing testimony.

Contributed by Charna Meth, AGI/AAPG 2003 Spring Semester Intern; Emily M. Lehr, AGI Government Affairs Program Staff ; Gayle Levy, AGI/AAPG 2004 Spring Semester Intern; Bridget Martin, AGI/AIPG 2004 Summer Intern; and Ashlee Dere, AGI/AIPG 2004 Summer Intern and David Millar 2004 AGI/AAPG Fall Intern

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on December 2, 2004

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