Comments and Testimonies

February 25, 2004 (Philadelphia)

BEFORE THE U.S. ENVIRONMENTAL PROTECTION AGENCY PUBLIC HEARING ON PROPOSED REGULATIONS FOR MERCURY
AND INTERSTATE AIR QUALITY

TESTIMONY OF CLEAN AIR COUNCIL

My name is Joseph Otis Minott. I am the Executive Director of Clean Air Council, an environmental non-profit, dedicated to protecting the right of everyone to breathe clean air. The Council has pursued this mission since 1967. In my own long history with the organization I have seen slow, sometimes halting, but usually steady progress in implementation of the Clean Air Act and its Amendments. In recent years, however, the EPA has seemed to turn its back on its core mission to protect public health, and has instead sought to restrain the long overdue steps of Clean Air Act progress in order to protect big industry and especially the power sector. Today's regulatory proposals are prime examples of this trend. In my comments, I intend to address both the Mercury rule and the Transport rule. The Council reserves the right to submit more detailed, supplemental comments prior to the March 30 deadline.

As further context, I am also father to a 13-year-old, active son. He loves to play soccer and basketball. He is also an asthmatic. Some of you in this room may relate to the experience of having to rush your child to the hospital because he or she cannot breathe-or even to the frustration and disappointment of a child who must skip a game because the air pollution is making him or her wheeze. If you have an asthmatic member of your family, you will keenly understand the passion of my testimony.

Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Interstate Air Quality Rule):

Fine particles are some of the most dangerous pollutants emitted today. Their exceedingly small diameter of less than 2.5 micrometers allows them to penetrate deep into the lung. As EPA acknowledges in its proposed rule, there is a long list of cardio-pulmonary health effects, the most serious of which is premature death. In fact, power plant emissions of fine particulate and its precursor pollutants are responsible for 30,000 premature deaths a year. Ozone is an even better known pollutant, causing respiratory irritation, coughing, wheezing, shortness of breath, and permanent lung damage. Children, the elderly, and those with lung conditions are most seriously impacted by acute exposures.

EPA established the new National Ambient Air Quality Standards (NAAQS) for pm2.5 and a revised 8-hour Ozone standard in 1997. It is only now, after legal challenges by industry have been exhausted, and additional delays by EPA, that Americans are finally seeing an effort to reduce these harmful pollutants.

In Pennsylvania, there is strong reason for dissatisfaction with EPA's rulemaking on transport. The Commonwealth receives major transport of these pollutants from upwind power plants in neighboring states, even those hundreds of miles from her borders. Currently, approximately 38 counties in Pennsylvania are likely to be designated as non-attainment for 8 hour ozone, the vast majority of Pennsylvania residents breathe unhealthful air. For pm 2.5, 22 counties have been recommended by the state for non-attainment of this dangerous pollutant. Much of the problem also comes from within the state. Many large power plant sources of sulfur dioxide, a pm 2.5 precursor pollutant are here, including #1 plant in the entire nation, which emits an astounding 171,000 tons per year.

The Council cannot accept the reductions contemplated in this regulation as adequate. EPA's own modeling analysis showed that after full implementation of planned reductions of NOx in 2018, the Philadelphia region will remain in non-attainment for the 8-hour ozone standard. After full implementation of the pm 2.5 reduction measures in 2018, the Pittsburgh area will remain in non-attainment of that health standard.

The Council urges EPA to return to prior analyses and reduce the SOX cap to 2 million tons and the NOx cap to 1.25 million tons by 2009. Not only will this save thousands of lives and improve life for millions, but it provides greater regulatory certainty and construction efficiencies to the power sector.

The Proposed National Emissions Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units (The Mercury Rule):

As EPA acknowledges in its proposal, "Mercury is toxic to humans from both the inhalation and oral exposure routes." The most common form of exposure for humans is through fish consumption after airborne mercury has been deposited onto land and waterway, and is then converted to methylmercury as the element works up into the food chain. EPA also acknowledges that "methylmercury is a well-established human neurotoxin." The risks of developmental disabilities in children from exposure through a mother's diet are real and significant. EPA itself, in February, doubled to 15% the estimated percentage of expectant mothers carrying levels of mercury in their bloodstream that is dangerous to their unborn. This fact is shocking.

The response from EPA to these health concerns is apparently to delay by nearly a decade significant reductions of mercury from power plants, the only remaining unregulated major source of the neurotoxin, while still leaving three times as much mercury in the air as the Clean Air Act requires. This action shocks the conscience.

Power plants still emit a massive 48 tons of mercury per year, accounting for nearly half of all U.S. emissions. This hazardous air pollutant is so toxic that 1/70 of a teaspoon can disperse in a 25-acre lake and require the need for a fish consumption advisory. Here in Pennsylvania, we are third nationally for mercury emissions, as our power plants churn out 7,400 pounds per year. We also suffer the impact of transported mercury compounds from the concentration of power plants in close proximity to the west and south. Most notorious is Ohio, which takes the #1 ranking in annual emissions.

Mercury was one of the first hazardous air pollutants regulated, with standards for a limited number of industries dating back to the 1970s. (NESHAPs) In 1990, the Clean Air Act Amendments established the section 112(b) list of hazardous air pollutants and Congress placed mercury on that list. The Amendments created the Maximum Achievable Control Technology (or, MACT) standards and directed EPA to develop source categories of industries to be subject to MACT regulations. EPA has done so, and scores of industries now have their hazardous air pollutants reduced through a MACT regulation. Since true MACT reflects the average emissions of the top 12% of environmentally controlled industrial facilities, its not surprising that many MACT standards achieve reductions approaching or exceeding 90% from pre-regulation levels. Despite the fact that in 2001, EPA suggested 90% was achievable for a power plant MACT, the Agency now suggests limits far, far weaker.

Under the federal Court settlement that prodded this regulation, EPA agreed to make a determination whether to regulate mercury from power plants in December of 2000 and if answering affirmatively, to then promulgate a proposed regulation in December 2003, and a final one in December 2004. EPA did find it appropriate and necessary to regulate power plants for hazardous air pollutants such as mercury, and simultaneously listed fossil fuel steam electric generating units as source categories under section 112(c). The Act requires final MACT rules to set full implementation in three years from the rule's effective date, with the potential for a one-year extension.

The levels of emissions, the science and health impacts all supported EPA's 2000 decision to proceed to control power plant mercury. With that finding made, EPA committed to setting legitimate MACT standards which truly protect public health. The emissions are still overwhelming. The health impacts are even more clear and broad-based today. And the demonstrations of technology are increasingly supportive of a MACT in the neighborhood of 90% reductions. Some 50 power plants in the country are said to be achieving reductions of mercury of this magnitude. Former big emitters of mercury that were also big resisters to clean-up, are now getting big reductions. Hospital and municipal solid waste incinerators are meeting their 90% MACT standards, many through the use of a new control technology called Activated Carbon Injection. This technology is having very promising results in early applications on coal-fired power plants.

Moreover, the Agency's decision to establish subcategories in the MACT standard by type of coal is unwarranted at best. Different types of boilers can be made to combust more than one type of coal. EPA's proposal merely guarantees the continued use of particularly mercury-heavy fuels.

Two of the three alternatives EPA offers today permit trading of Mercury. Clean Air Council is adamantly opposed to the trading of hazardous air pollutants and maintain that such trading is not contemplated by the Clean Air Act. EPA has not made the showing necessary to reverse its determination and take power plants off the 112(c) list. Without such a demonstration, the Council believes EPA has no authority to re-channel this regulation through the pollution-trading friendly section 111 standards of performance. It is appalling to find that the agency has adopted wholesale the legal analysis of industry in this area, lifting many passages verbatim into the regulation from the Latham & Watkins memo of September 2003. The Council furthermore rejects the Agency's interpretation of Section 112 under which an alternative authority to trade this neurotoxin is claimed. It is crucial that ALL persons be provided significant relief from the mercury emissions which befoul the waterways in their communities. Allowing trading will inevitably lead to "hot spots" wherein areas in a major swath downwind from a plant that chooses to purchase credits rather than install controls will suffer continued mercury contamination.

The Council believes the Act requires and the technology supports the feasible reduction to around 5 tons per year by 2008. The EPA proposed regulation would have people suffer with nearly seven times that amount (34 tons) for an additional nine years. In 2018, after another generation of children is in high school, the second step reduces EPA's disparity to a mere three times what the law truly requires. This is clearly insufficient and far too late.

Bear in mind that EPA's final reductions occur nearly 30 years from the inception of the MACT program. We cannot wait this long to protect our children.

It is nothing short of outrageous that EPA would turn its back on this public health problem so readily resolved and conjure up in its stead legally dubious and patently inadequate standards, which closely mirror in important respects the specific demands of regulated sources themselves. The appearance of a connection between major campaign financial support and such favorable treatment is difficult to ignore, and is, frankly, repulsive to those who would put faith in integrity of independent agencies .