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For Immediate Release:  
For Further Information Contact:
May 18, 2005

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


Peter Aseltine


Attorney General Harvey Leads 11-State Coalition in Suit Against EPA Over Emissions Trading Rule That Will Perpetuate Dangerous Mercury Hot Spots

TRENTON – Attorney General Peter C. Harvey is filing suit today for a coalition of eleven states challenging a new federal Environmental Protection Agency (EPA) rule that establishes a cap-and-trade system for regulating harmful mercury emissions from power plants. The rule will delay meaningful emission reductions for many years and perpetuate hot spots of local mercury deposition, posing a grave threat to the health of children.

“New Jersey is taking the lead in this fight to protect children from mercury exposure, which can lead to severe developmental disabilities,” said Acting Governor Richard J. Codey. “We’ve adopted tough rules to reduce in-state mercury emissions, but we need the federal EPA to regulate them adequately at the national level. More than one-third of the mercury deposited in New Jersey comes from outside our borders.”

“These rules are deeply flawed and contrary both to science and the law,” said Attorney General Harvey. “Mercury is a potent neurotoxin that damages the developing brains of fetuses and young children. EPA has failed to meet its obligation under the Clean Air Act to adopt rules that will protect our children from toxic power plant emissions.”

“A cap-and-trade program for mercury further dilutes an already weak rule and creates the risk of perpetuating dangerous mercury hotspots that threaten the health of our communities and children,” said Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell. “This rule betrays the public’s trust and fails to meet the protections mandated by the Clean Air Act.”

The rule was published today in the Federal Register. The states previously filed suit against a separate EPA rule published March 29 that removed power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. EPA announced both the de-listing rule and the cap-and-trade rule on March 15. The trading scheme established by the rules 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.

Through mercury deposition, mercury enters the aquatic food chain and ultimately is consumed by humans ingesting certain types of fish, resulting in severe harm, particularly when ingested by pregnant or nursing mothers or young children.

EPA's rule fails to adequately address the threat posed to young children by mercury. 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.

Attorney General Harvey is filing suit in the U.S. Court of Appeals for the D.C. Circuit on behalf of the coalition, which includes the Pennsylvania Environmental Secretary and the Attorneys General of California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York, Vermont and Wisconsin. The case is being handled by Deputy Attorneys General Kevin Auerbacher, Section Chief for Environmental Enforcement, Jean Reilly and Christopher Ball.

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

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 de-listing rule that EPA published on March 29 exempts power plants from regulation under Section 112, reversing EPA’s prior determination that the strictest controls are necessary to protect public health.

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 cap-and-trade rule EPA published today, 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. MACT controls would reduce emissions at every coal-fired power plant by about 90 percent, to about 5 tons per year, with a compliance deadline of 2008. The new EPA rule is not expected to achieve even a reduction to 15 tons per year until at least 2026

In contrast, New Jersey last year 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. 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.

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