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For Immediate Release:  
For Further Information:
June 19, 2006

Office of The Attorney General
- Zulima V. Farber, Attorney General
Division of Law
- Nancy Kaplen, Acting Director


Peter Aseltine


New Jersey Files Petition Challenging Final EPA Rules
That Will Perpetuate Dangerous Mercury Hot Spots

TRENTON – Attorney General Zulima V. Farber announced that New Jersey filed a new petition today in federal court challenging final rules published June 9 by the Environmental Protection Agency which establish a cap-and-trade system for regulating harmful mercury emissions from power plants.

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 meaningful emission reductions for many years, perpetuating hot spots of mercury deposits and posing a serious threat to the health of children.

New Jersey filed suit for a 16-state coalition last year in the U.S. Court of Appeals for the D.C. 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. The 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, weakening already weak mercury emissions standards for every major category of coal plant except for bituminous coal-burning plants. The new petition filed by New Jersey for the coalition of states will allow the suit to move forward.

“New Jersey has demonstrated in the past its willingness to vigorously pursue litigation to protect our citizens’ health and meet clean air quality standards,” said Governor Jon S. Corzine. “New Jersey will continue to take action to ensure that the Clean Air Act’s protections are enforced even when the federal government abdicates its own responsibility to do so.”

“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 Attorney General Farber. “We are moving forward in court to fight these rules, which do not meet the mandate of the Clean Air Act.”

“Despite everything that is known about the dangers of mercury, the federal government continues to respond with a blind eye and a deaf ear,” said Department of Environmental Protection Commissioner Lisa P. Jackson. “Indeed, the lack of action at the federal level threatens to undermine the tough regulatory action New Jersey has taken to reduce in-state mercury emissions and protect the health of our residents.”

Coal-fired power plants are the largest source of uncontrolled mercury emissions, generating 48 tons of mercury emissions per 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 deposits of mercury to continue unabated near plants that choose not to reduce emissions, perpetuating hot spots and hot regions that can significantly impact the health of individual communities.

Through mercury 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, and impaired visual and motor functions.

EPA finalized its cap-and-trade rule despite recent reports that further call into question the conclusions underlying the rule. EPA-funded research conducted in Steubenville, Ohio found that mercury deposition rates from local coal-fired plants are many times higher than EPA projections, underscoring the potential for uncontrolled plants to perpetuate mercury hot-spots. EPA’s own Inspector General released a report on May 15 which questioned EPA’s conclusion that its new rules will not result in mercury hotspots.

The case is being handled for New Jersey by Deputy Attorneys General Christopher Ball and Jung Kim. The coalition challenging the EPA rule also includes California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin.

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 little 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. If EPA had complied with the Clean Air Act and required MACT controls, it could have reduced emissions at every coal-fired power plant by about 90 percent, to about 5 tons per year, with a compliance deadline of 2008.

In contrast to the EPA rule, New Jersey has adopted tough new restrictions on mercury emissions from coal-fired power plants, iron and steel melters, and hospital and medical waste 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.

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 the womb.

In New Jersey, there are mercury consumption advisories for at least one species of fish in almost every body of water in the state.

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