The Politics of Mercury Pollution

Once again the administration of Indiana Governor Mitch Daniels has opted to protect the financial interests of polluters at the expense of public health. The most recent evidence was the Indiana Air Pollution Control Board’s (APCB) 11-1 vote at its Oct. 3 meeting to adopt the minimum federal Clean Air Mercury Rule (CAMR).

Under terms of the rule, Indiana-based coal-fired power plants might cut mercury emissions by 66 percent by 2018. The key word is “might” because a provision known as “cap-and-trade” allows plant operators to bank and/or sell emission credits, which would stretch out actual compliance to 2025 or even beyond.

That wasn’t good enough for the board’s lone holdout, Philip S. Stevens. “It’s not that I’m against controlling mercury emissions,” Stevens said by phone from his Bloomington office, where he serves on the faculty of Indiana University’s School of Public and Environmental Affairs. “I didn’t want the public record to show unanimous support of the Environmental Protection Agency’s (EPA) rule because I felt it was not strong enough to protect human health.

“Given the known toxicity of mercury and the known health effects – especially on children and pregnant women – and increasing scientific evidence that mercury gets into the environment and spreads in ecosystems quickly, I felt the stronger rule was appropriate,” he said.

Stevens’ vote might have been a symbolic gesture but his efforts during the board’s deliberations over the past two and a half years have been substantial, including participation in an Indiana Department of Environmental Management Office of Air Quality work group of various stakeholders who looked deeply into the issue. He also made presentations to educate his fellow board members about mercury’s health hazards.

At the Oct. 3 meeting Stevens tried to broker a two-point compromise proposed by the nonprofit organization Improving Kids’ Environment (IKE) at the board’s May meeting. The proposal would have accelerated the date for compliance and required a 76 percent reduction from the utilities and established a fund for energy efficiency projects to receive allowances from the cap-and-trade program.

Board members rejected both proposals.

Medical representative James Minor (APCB chair) and environmental representative Tom Anderson of Save the Dunes joined Stevens in voting in favor of the IKE compromise.

Stevens said that while he favored a proposal put forth in 2004 by the Hoosier Environmental Council that would have mandated a 90 percent reduction by the end of the decade and put regional limits on the cap-and-trade provision to ensure compliance, he would have been happy with the IKE compromise.

He doesn’t care for the cap-and-trade provision, which allows plants that operate below a predetermined emissions limit (the “cap”) to bank or sell credits (the “trade”) to plants that exceed their cap. “I don’t think you should be trading something like mercury that deposits close to the source and is a potent neurotoxin.”

In an Orwellian bit of irony, Stevens could be accused of not supporting regulation of mercury because of his vote against the EPA rule. Meanwhile, board members who supported CAMR, which permits greater amounts of mercury to be emitted for a longer period of time than what HEC proposed, could claim they are strengthening regulations. That’s only because mercury emissions from power plants are currently unregulated.
Cost-effective public health

No one who attended the meeting disputed that mercury poses a health threat. There was no denial of Indiana’s rank as one of the country’s top emitters of mercury (attributable in no small part to coal-fired power plants.). When EPA finally published its mercury rule in May 2005, there was general agreement nationwide that something had to be done.

Agreeing on the specifics of the amount of mercury emissions reductions, establishing timetables for compliance and estimating the associated costs was an extended process. Early on, Indiana Department of Environmental Management Commissioner Thomas Easterly made it clear that he favored CAMR, and the members of the APCB took note – especially representatives of state agencies who essentially rubber-stamp approval of administration policies (always the case regardless of which party occupies the governor’s office).

Presentations to the board came from two basic constituencies: the “Suits” and the “Green Team.” (See Mercury regs still up in the air, BA 10/10/04.)

Gov. Daniels exemplifies the corporate culture that is the natural habitat of the “Suits” and has established a style of governance that enshrines corporate management objectives and processes at the expense of democratic ideals. That gives the regulated community and its constituents an unfair advantage over advocates for citizen shareholders in the public interest.

Throughout public hearings and in public comment periods during the lengthy rule-making process, the “Suits” had distinct leverage. After all, Indiana is known for its reluctance to pass regulations that exceed federal minimums (much less to enforce them). APCB members tilt heavily in favor of industry and the current administration, so the burden of proving the need for a stronger rule was practically insurmountable.

Nevertheless, the “Green Team” made an impressive effort to present the case for a strong rule, stressing not only the health effects but the economic benefits as well. One long-time observer of the regulatory process termed the outpouring of public comments in support of HEC’s initiative “unprecedented.” Public health officials, other environmental organizations, and hundreds of individual citizens commented in favor of greater protection of public health. The following IDEM response typifies the agency’s approach: “Due to uncertainties over the achievability of 90 percent control, reductions in actual mercury exposure levels, cardiovascular health effects, and the low benefit/cost ratio, IDEM is proceeding with a rulemaking based on CAMR.”

You read correctly: the benefits of safeguarding public health aren’t worth the costs.

Throughout the process, industry has claimed that the cost of achieving a greater reduction was either technologically unfeasible or too costly or both. Yet IDEM’s mandatory fiscal impact study estimated that achieving a 90 percent reduction in mercury emissions at a coal-fired power plant would increase electricity rates only 2.8 to 5 percent. Given Indiana’s low utility rates (an estimated 21 percent below the national average), even a 5 percent increase would keep rates below the national average while providing significant reductions of mercury.

At the Oct. 3 OPCB meeting, Chad Whiteman, deputy director of the Washington, D.C.-based Institute of Clean Air Companies, said the members of his trade association have responded to the demand for mercury control technologies from Europe as well as the more than 20 states that have passed more stringent regulations than EPA’s CAMR. Citing one U.S. example, he noted, “The expected cost for one unit was $30,000 to $60,000 per pound to control mercury, and some of the demonstration projects had achieved results in the $2,000 to $4,000 per pound range.” Whiteman opined that the costs of pollution control would continue to decline as demand for such technologies increases.

Naturally, power industry reps dispute the many successes of public/private partnerships and the competitive commercial marketplace in lowering costs. Instead, they prefer projections by their trade association, the Indiana Energy Association, that would allow them to maintain the status quo and enable them to continue poisoning the public for profit.
Clout Cancels Compliance

Utilities wield tremendous political clout. When the Clean Air Act was established in 1970, they were able to get power plants “grandfathered” in and exempted from those regulations. The thinking at the time was that cleaner plants would gradually replace the aging plants.

But it didn’t happen. The old plants kept on belching pollutants and utilities resisted costly upgrades. Passage of amendments in1990 to the Clean Air Act called for the utility industry to install “maximum achievable control technology” (MACT) in the nation’s non-nuclear power plants by 2008. When EPA dawdled in enforcing compliance, the Natural Resources Defense Council sued in 1992 to force the agency to regulate hazardous power plant emissions. By 2000, the EPA acknowledged that mercury’s toxic properties required it to be regulated as a hazardous substance.

When the Bush administration took office, EPA head Christine Todd Whitman established a task force of diverse stakeholders who met for 21 months and agreed that power plants should be subject to the MACT standard. As reported in the Washington Post, the task force suddenly was dissolved and a different policy was implemented: one that rejected MACT and replaced it with a more industry-friendly cap-and-trade plan.

The administration crafted its mercury rule in January 2004 and the Washington Post reported that it was taken nearly verbatim from drafts submitted by energy industry lobbyists. When EPA issued CAMR in May 2005, the cap-and-trade provision was enshrined as public policy.

Opposition to the cap-and-trade system is widespread. Sixteen state agencies have joined environmental groups to file suit against the cap-and-trade provision of CAMR, arguing for a return to the MACT standard.

Concerns over the cap-and-trade plan center around the ability of utilities to continue operating outdated, dirtier facilities. Environmentalists, public health officials and social justice advocates fear that such a program will create “hot spots” – high concentrations of mercury around older plants – and delay much needed cleanup, remediation and/or decommissioning.

Dan Weiss, of Duke Energy Indiana, told the APCB that the firm operates facilities in the state where it would be uneconomic to add pollution controls. “The generic answer is, the smaller and older the power plant, the less options it has,” Weiss said. He cited the firm’s Knox County facility in Edwardsport (built between 1944 and 1951) as an example and noted that the company is looking to replace it with a proposed integrated coal gasification combined cycle power plant (a plant Gov. Daniels asserts will be built despite growing concerns in the industry over cost and technical feasibility). Weiss added that the company is seeking a 16 percent rate increase to be phased in over five years.

Duke Energy Indiana’s operating revenues for the six months ending June 30, 2007, totaled $1.043 billion, an $85 million increase in net revenue as compared to 2006.

It’s no surprise that a Duke Energy representative was on the list of energy industry leaders who met in secret with Vice President Dick Cheney’s Energy Task Force in 2001. In its August 2003 report to Congress on the Energy Task Force, the U.S. General Accounting Office found that the national energy policy was the product of a centralized, top-down process. “Officials and staff met with, solicited input from, or received information and advice from nonfederal energy stakeholders, principally petroleum, coal, nuclear, natural gas, and electricity industry representatives and lobbyists,” the report stated.

Because the GAO was unable to obtain many of the documents it requested from the office of the Vice President, citizens may never know the full extent of the energy industry’s influence on CAMR.
What you don’t know can still hurt you

One thing clearly known is that environmental justice is not an active policy in George Bush’s EPA. A report by the Office of Inspector General found that “in 2001, the Agency restated its commitment to environmental justice in a manner that does not emphasize minority and low-income populations.”

Since these communities were found to be more likely to live around older, dirtier power plants, in 1994 President Bill Clinton issued Executive Order 12898, “Federal Action to Address Environmental Justice in Minority Populations and Low-Income Populations,” designed, the report stated, “to ensure such populations are not subjected to a disproportionately high level of environmental risk.”

In a 2004 Center for Progressive Regulation white paper, “Mercury, Risk and Justice,” author Catherine A. O’Neill writes that the adoption of CAMR’s cap-and-trade provisions will likely exacerbate mercury levels in some areas of the country, especially the Great Lakes region. She writes that exposure will be borne “disproportionately by Native Americans, Asian-Americans, other communities of color and low-income communities in this and other regions of the country who eat large amounts of mercury-contaminated fish. Because humans are exposed to methyl mercury primarily through fish consumption, groups that eat the most fish are disproportionately at risk.”

Indiana’s Department of Health has issued a fish consumption dvisory for nearly all the waters in the State but the Department of Natural Resources has not been required to post signs and relies instead on Web notices, which are unlikely to reach those who need the information the most.

Mercury exposure poses a risk of developmental problems and learning disabilities in children. Nevertheless, despite pleas from groups like the March of Dimes, the Indiana Chapter of the American Academy of Pediatrics, the American Public Health Association, and Improving Kids’ Environment to safeguard the health of children, the APCB rep from the Department of Health consistently voted against stronger protections.

Local deposit, local return

Rather than tackle public health issues head-on, the industry and its lobbyists have developed considerable skill at framing regulatory considerations in terms of how they affect the industry.

They point to their own projections of the high cost of compliance or they question the technological feasibility of achieving stricter regulations. They threaten rate hikes to nudge regulators into backing off of stricter regulations. They dispute that more than 5 to 10 percent of mercury emitted from their power plants is deposited in Indiana.

So where does the mercury in Indiana come from?

Gail Charnley, of the Center for Energy and Economic Development in Washington, D.C., flew to Indianapolis to testify at the Oct. 3 APCB meeting. “A lot of mercury deposition [in Indiana] comes from other places like China and India,” she told the board. “Only a small amount of the methyl mercury in Indiana fish is likely to be attributable to Indiana power plants in the first place, so regulating Indiana power plants can have only a small impact on potential mercury reduction in Indiana,” she said.

It’s heartening to think that Charnley and the domestic energy industry recognize the pollution coming from the increasing number of coal-fired power plants in China and elsewhere. But an argument that “everybody else is doing it and you’re not making them stop, so why pick on us?” lacks wisdom.

Mounting evidence shows that mercury deposition is not only extremely local but also rapidly spreads in ecosystems, where it accumulates in earth, air, water and wildlife.

Yet another Inspector General’s report, “Monitoring Needed to Assess Impact of EPA’s CAMR on Potential Hotspots,” declares, “Results from the Steubenville Study, a multiyear study in the Ohio River Valley, found that approximately 70 percent of mercury wet deposition at Steubenville, Ohio, in 2003 and 2004 was attributable to local/regional coal combustion sources, predominantly from utility boilers.”

Further, a three-year joint Canadian/US study found that reducing atmospheric pollution results in rapid reductions in mercury levels in fish.

When the world’s top mercury scientists gathered August 6­11, 2006, in Madison, Wisconsin, they issued a Declaration on Mercury Pollution that is a fascinating, albeit disturbing, statement. Part of the nontechnical summary reads: “The true total costs of mercury pollution are probably much greater than currently estimated due to the many uncertainties in these estimates, and because they don’t take into account mercury’s impacts on ecosystems and wildlife.”

While steering clear of direct policy recommendations, the group of scientists stated their hope that policymakers would use the best available science from the Declaration in their decision making on environmental mercury pollution.

If only their Declaration had been issued to the APCB along with a copy of the Precautionary Principle, which asserts that where there are threats of serious or irreversible damage, lack of full scientific certainty about the potential for harm should not be used as a reason for postponing measures to prevent harm.

Or as Carolyn Raffensperger, executive director of the Science and Environmental Health Network puts it, “Do we have to continue to use the toxic chemicals that we’ve created out of our human cleverness that are now poisoning the entire planet? Or can we find ways to do business that foster the conditions that are conducive to life?”

Such insight was nowhere to be heard throughout the entire mercury rule-making process. Instead, during testimony the APCB was offered analogies such as the one presented by John Ross, manager of regulatory programs at NiSource, who spoke on behalf of the Indiana Energy Association. “Mercury is typically found in parts per billion,” he said. To try and put that in perspective he used the following analogy. “Imagine the RCA Dome filled with ping-pong balls. We estimate that dome would hold on the order of 15 billion balls. Of those 15 billion only about 800 of those balls would be mercury. The challenge, then, if you were trying to achieve 90 percent removal, would be to try and find and remove 720 of the 800 balls. This is a difficult proposition.”

Yet IDEM’s Web site states, “Mercury is toxic in small quantities. It only takes 3 grams (approximately 1/25 of a teaspoon) of mercury to contaminate a 60-acre lake.” At such minute levels only 10 ping-pong balls would be sufficient to pollute the entire dome. So wouldn’t it make sense not to generate those 800 balls in the first place?

And shouldn’t we monitor where mercury pollution is actually occurring? As part of a national program, the U.S. Geological Survey has four mercury monitoring stations throughout the state. With the exception of the Clifty Falls monitor in Jefferson County, near Madison’s Clifty Creek coal-fired power plant, monitoring stations are located far away from the highest concentration of mercury emitting plants in the Ohio Valley of southwestern Indiana.

Unless other states prevail in the courts and force EPA back to its original MACT standard, Indiana is stuck with CAMR. However, if they succeed, the rulemaking cycle begins again, and the Green Team will have another opportunity to try to convince the Suits and the rubber-stampers that a degraded environment is no basis for sustainable economic development, human health, social justice or security.

THOMAS P. HEALY is a journalist in Indianapolis. He can be reached at