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Sixteen States Sue U.S. EPA Over Mercury Cap-and Trade Rule

WASHINGTON, DC - Sixteen states filed a new lawsuit today in federal court challenging the final rules published June 9, by the U.S. Environmental Protection Agency (EPA) which establish a cap-and-trade system for regulating harmful mercury emissions from coal-burning power plants.

The EPA announced on May 31 that it would move forward with its cap-and-trade program for mercury emissions despite petitions from the states and environmental groups that outlined how the program will delay emissions reduction for many years, perpetuate hot spots of local mercury deposition and pose a serious threat to the health of children.

Scientists estimate up to 600,000 children may be born annually in the United States with neurological problems leading to poor school performance because of mercury exposure while in the womb.

The coalition of states filed suit last year in the U.S. Court of Appeals for the DC Circuit, challenging the cap-and-trade rule and a separate rule that removed power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act.

That lawsuit, which asserts that both rules violate the Clean Air Act, was put on hold by the court in October when the EPA agreed to a formal reconsideration of the rules.

After more than six months, EPA chose to adopt final rules that failed to address any of the concerns raised by the states. EPA actually made the rules worse than those originally adopted, easing already weak mercury emissions standards for every major category of coal plant except for bituminous coal-burning plants. The new lawsuit filed by the states today will allow the claims brought in the original suit to move forward.

"Mercury is a potent neuro-toxin and we should do everything possible to reduce the public's exposure to it," said New York Attorney General Eliot Spitzer. "I am disappointed that the EPA continues to take a regulatory approach that conflicts with the Clean Air Act. Our lawsuit seeks to make sure this issue is handled as the law requires, leading to improved public health and environmental protection."

The coalition challenging the EPA rule includes New Jersey, California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.

The lawsuit is being handled by New York Assistant Attorney General Jacob Hollinger.

Five environmental groups and four Indian Tribes also challenged the mercury cap-and-trade rule - the Natural Resources Defense Council, the Clean Air Task Force, the Ohio Environmental Council, the U.S. Public Interest Research Group, the Natural Resources Council of Maine; the Aroostook Band of Micmacs, the Houlton Band of Maliseet Indians, the Penobscot Indian Nation, and the Passamaquoddy Tribe of Maine.

The EPA agreed to reconsider certain aspects of the rule, including legal issues underlying the decision; and the methodology used to assess the amount of utility-attributable mercury levels in fish tissue and the public health implications of those levels.

The EPA said, "After carefully considering the petitions and the information that was submitted during the public comment period, EPA has determined that its original determination as presented in the final Section 112(n) Revision Rule was correct. EPA is reaffirming its action."

"After six months of stalling, EPA not only failed to address the grave dangers posed to communities and children by its cap-and-trade program for mercury emissions, it made the program worse by further weakening standards," said New Jersey Attorney General Zulima Farber. "We are moving forward in court to fight these rules, which do not meet the mandate of the Clean Air Act."

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions each year nationwide. The trading scheme established by EPA's cap-and-trade rule will allow power plants to purchase emissions reduction credits from other plants that reduce emissions below targeted levels, rather than install stringent controls to reduce mercury emissions at their own plants.

That will allow localized deposition of mercury to continue unabated near plants that choose not to reduce emissions, perpetuating hot spots and hot regions that can harm the health of individual communities.

Through deposition, mercury enters the aquatic food chain and ultimately is consumed by humans ingesting certain types of fish. Children can suffer permanent brain and nervous system damage as a result of exposure to even low levels of mercury, which frequently occurs in utero. Mercury exposure can result in attention and language deficits, impaired memory, impaired visual and motor functions, and reduced IQ.

Also, mercury has been linked, more recently, to increased heart attacks in adult males.

A strict standard involving maximum achievable control technology (MACT), as required by the Clean Air Act, would reduce mercury emissions to levels approximately three times lower than the cap established in the cap-and-trade rule EPA adopted, and would do so far more quickly.

EPA's cap-and-trade rule will yield insignificant immediate reductions in mercury emissions from power plants from the current level of 48 tons per year, and will delay even modest reductions by more than a decade.

In contrast to the EPA rule, more than 20 states have adopted or are moving to adopt significantly more stringent rules to reduce mercury emissions. New York recently announced new regulations that will require mercury reductions of 50 percent by 2010 and 90 percent by 2015 from coal-fired power plants. The New York regulations do not rely on a cap and trade approach.

Exposure to the most toxic form of mercury comes primarily from eating contaminated fish and shellfish. Fish advisories, which have been adopted by EPA, are not an adequate substitute for appropriate regulation of mercury emissions under the Clean Air Act.



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