Posted by: Lawyer Sanders | June 27, 2008

U.S. Court of Appeals for D.C. Circuit vacates EPA’s mercury emission regulations for coal-fired electric plants.

On March 15, 2005, U.S. EPA issued a first-ever federal rule to cap and reduce mercury emissions from coal-fired utility plants.  In bizarre fashion, however, EPA committed two patent errors in promulgating its new rule for mercury emissions.  First, EPA attempted to exempt coal- and oil-fired utility plants from § 112 of the Clean Air Act, which regulates Hazardous Air Pollutants.  Second, under the rule, EPA regulated mercury emissions from coal-fired utility plants under §111 of the Clean Air Act, not under §112, as Congress specifically mandated in 1990. 

 

Once the regulations were promulgated, EPA was almost immediately sued by a number of states located downwind from coal-fired utility plants.  Faced with a challenge to EPA’s obvious gerrymandering of the mercury emissions rule, the U.S. Court of Appeals for the D.C. Circuit vacated the mercury air emissions rule. The February 2008 appellate court’s easy to read opinion is at: http://pacer.cadc.uscourts.gov/docs/common/opinions/200802/05-1097a.pdf

 

U.S. EPA has not yet promulgated a new administrative rule on mercury emissions from coal-fired electric generating plants.  EPA’s obfuscation in promulgating proper regulations to reduce mercury emissions from coal-fired utility plants is both perplexing and puzzling.  Reducing exposure to mercury deposition is a national priority according to EPA Headquarters because of mercury’s long-term toxic effects on human health and the environment. 

 

According to EPA,’s website, exposure to wildlife and humans is primarily through the aquatic food chain where mercury bio-accumulates by up to factors of a million. The primary source of mercury to sensitive aquatic ecosystems is via atmospheric transport and deposition. The EPA Mercury Report states that “of the estimated 144 Megagrams of mercury emitted annually in to the atmosphere by anthropogenic sources in the United States, approximately 87% is from combustion point sources and 10% from manufacturing point sources. Four specific source categories account for approximately 80% of the total anthropogenic emissions: coal-fired utility boilers, municipal waste combustion, commercial/industrial boilers, and medical waste incinerators.

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