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For Immediate Release:  
For Further Information Contact:
March 29, 2005

Office of The Attorney General
- Peter C. Harvey, Attorney General
Division of Law
- Nancy Kaplen, Acting Director


Peter Aseltine


Attorney General Harvey Files Suit for Nine-State Coalition Against EPA Rule that Fails To Protect Children From Dangerous Mercury Emissions

TRENTON – Attorney General Peter C. Harvey filed suit today for a coalition of nine Attorneys General who are challenging a new federal Environmental Protection Agency (EPA) rule that fails to protect the public adequately from harmful mercury emissions from coal-fired power plants, which pose a grave threat to the health of children.

The suit challenges an EPA rule published today that removes power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. EPA announced the rule on March 15, along with a second rule establishing a cap-and-trade system for regulating mercury emissions. The trading scheme will allow some plants to actually increase mercury emissions, creating hot spots of local and regional mercury deposition.

Through mercury deposition, mercury enters the food chain and ultimately is consumed by humans, resulting in severe harm, particularly when ingested by pregnant or nursing mothers or young children. EPA’s rule has devastating implications for young children, who 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, and impaired visual and motor functions.

“We’ll take whatever legal action is necessary to protect New Jersey’s families,” said Acting Governor Richard J. Codey. “We’ve adopted tough rules to reduce in-state mercury emissions, but with more than one-third of the mercury deposited in New Jersey coming from out-of-state sources, we can't let the federal EPA shirk its duty to appropriately curb mercury emissions on the national level.”

“We are dedicating our legal resources to fight EPA’s new rule, which fails to protect our children from toxic mercury emissions,” said Attorney General Harvey. “It is an established medical fact that mercury causes neurological damage in young children, impairing their ability to learn and even to play. EPA’s emissions trading plan will allow some power plants to actually increase mercury emissions, creating hot spots of mercury deposition and threatening communities.”

“These rules will place thousands of children at risk annually, even though the technology to achieve more dramatic mercury reductions has been in use for years,” said Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell. “The standards in the EPA rule are far too weak to protect public health and the environment and fail to uphold the mandate of the Clean Air Act.”

New Jersey is leading the coalition that filed suit today in the U.S. Court of Appeals for the District of Columbia Circuit. The coalition also includes the Attorneys General of California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York and Vermont. New Jersey will challenge EPA’s cap-and-trade rule on behalf of members of the coalition once it is published in the Federal Register.

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per year nationwide. Exposure to the most toxic form of mercury comes primarily from eating contaminated fish and shellfish. However, fish advisories, which have been adopted by EPA, are not an adequate substitute for appropriate regulation of mercury emissions under the Clean Air Act.

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 utero. Fish from waters in 45 of our 50 states have been declared unsafe to eat as a result of poisoning from mercury. In New Jersey, there are mercury consumption advisories for at least one species of fish in almost every body of water in the state.

New Jersey’s efforts are being led by Deputy Attorneys General Kevin Auerbacher, Section Chief for Environmental Enforcement, Jean Reilly and Christopher Ball.

EPA studied the health hazards posed by toxic emissions from power plants, including mercury, and determined in 2000 that power plants must be regulated under Section 112 of the Clean Air Act, which requires that “maximum achievable control technology” (MACT) be used to control those emissions. The rule that EPA published today improperly exempts power plants from regulation under Section 112, reversing EPA’s prior determination that the strictest controls are necessary to protect public health.

Under EPA’s cap-and-trade rule, power plants can elect, rather than reducing their own mercury emissions, to purchase emissions credits from other plants that reduce emissions below targeted levels. Cap-and-trade emission controls, while sometimes appropriate for general air pollutants like sulfur dioxide and nitrogen oxides, are inappropriate for mercury because they can allow localized deposition of mercury to continue unabated, perpetuating hot spots and hot regions that can significantly impact the health of individual communities.

A strict MACT standard, as required by the Clean Air Act, would reduce mercury emissions to levels approximately three times lower than the cap established in the new EPA rule. EPA’s trading rule will reduce mercury emissions from power plants from the current level of about 48 tons per year to 15 tons per year. MACT controls, on the other hand, would reduce emissions at each facility by about 90 percent, reducing total mercury emissions from power plants to about 5 tons per year. Moreover, the new EPA rule extends for 10 years the deadline for compliance from 2008 to 2018, with full reductions not expected until 2026 under the new rule.

In contrast, New Jersey last year adopted tough new restrictions on mercury emissions from coal-fired power plants, iron and steel melters, and municipal solid waste incinerators. The rules will reduce in-state mercury emissions by over 1,500 pounds annually and reduce emissions from New Jersey’s coal-fired power plants by about 90 percent. Despite New Jersey’s aggressive efforts to protect the public from mercury exposure, stronger federal action than the new EPA rule is needed since more than one-third of mercury deposition in New Jersey is from sources in upwind states.


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