Mercury Regulation: Fact and Fiction

• Author: William Brownell
• Position: Partner at Hunton & Williams in Washington, D.C.
• Pages: 46-46

Page 46 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2011

Th e fo r u m

of Section 112 regulation are only

$450,000-$5.9 million? Indeed, as

EPA explains, virtually all of the

benef‌its from its proposed program

are associated not with regulating

electricity mercury emissions, but

with f‌ine particle emissions; i.e., the

same emissions addressed through

air quality standards for f‌ine par-

ticles, regional haze rules, the Clean

Air Transport Rule, and other CAA

programs.

is, of course, is precisely why

Congress treated EGUs dif‌ferently

in the CAA. In 1990, Congress

recognized that generators emit a

variety of naturally occurring sub-

stances in trace quantities. While

many of those substances are on the

CAA Hazardous Air Pollutant list,

they are also controlled by tech-

nologies installed under other CAA

programs. Ref‌lecting this, Congress

said in the CAA to regulate EGU

emissions under Section 112 only

if “appropriate and necessary” after

considering the “imposition of other

requirements of the act.”

How then to justify an “appropri-

ate and necessary” f‌inding made in

2000 that Administrator Johnson

found in 2005 lacked basis? e an-

swer is simple: reinterpret the legal

standards.

According to EPA, it is now

“appropriate” to regulate EGU

emissions under CAA Section 112

if “HAP emissions from EGUs in

conjunction with HAP emissions

from other sources” present a risk.

Furthermore, it is “appropriate” to

regulate all EGU HAPs under Sec-

tion 112, no matter the absence of

risk, if “any single HAP emitted by

utilities [in conjunction with other

sources] poses a hazard.”

is is so because “the statute

does not . . . expressly authorize the

agency to regulate only those HAPs

for which a hazard f‌inding has been

made.” Regarding whether regula-

tion is “necessary” after “imposition

of the requirements of the CAA,”

EPA now says it must turn the clock

back to the year 2000 and ignore

subsequent utility regulations other

than the CAA Acid Rain Program.

Applying these new legal stan-

dards, EPA says the December 2000

f‌inding for mercury was reasonable

“based on the facts that existed at

the time.” And regulation of non-

mercury HAPs is also appropriate

and necessary under CAA Section

112 because the “agency could not

conclude [in December 2000] that

the potential concern for public

health was eliminated.” Ultimately,

regulation of EGU emissions under

Section 112 will make “the market

for electricity in the U.S. … more

level,” which is a euphemism for

more expensive.

In short, EPA says, its hands are

tied. If any EGU HAP emission, in

conjunction with emissions from

other source categories, presents a

risk, regulation of all EGU HAP

emissions is required under Section

112 regardless of cost and regardless

of the impact of other CAA pro-

grams adopted since 2000. Given

the impact of this rule on costs, elec-

tric reliability, and jobs, EPA should

seek interpretations that focus on

whether specif‌ic HAPs emitted by

EGUs pose a risk today justifying

Section 112 regulation. is would

both satisfy the CAA and expand

rather than contract its regulatory

options.

William Brownell is a Partner at Hunton &

Williams in Washington, D.C.

Mercury

Regulation: Fact

and Fiction

W B

In December 2000, EPA an-

nounced without rulemaking

that it was “appropriate and

necessary” to regulate coal-f‌ired

electric generating units for

one pollutant — mercury — under

Clean Air Act Section 112, the air

toxics provision. In March 2005,

Administrator Stephen Johnson

found after extensive additional

study and rulemaking that the De-

cember 2000 f‌inding “lacked basis.”

He instead promulgated CAA Sec-

tion 111 performance standards for

mercury emissions. Now, EPA pro-

poses to re-af‌f‌irm the 2000 f‌inding

for mercury and to regulate all elec-

tric generating unit (EGU) air toxic

emissions under Section 112. Ac-

cording to EPA, this will make “the

market for electricity in the United

States . . . more level, and no longer

skewed in favor of higher polluting

[i.e., coal-f‌ired] units.”

Mercury emissions circulate

globally. Based on a 2005 emissions

inventory, EPA says, “total global

Hg emissions . . . range from 7,300

to 8,300 [tons per year].” By com-

parison, U.S. electricity mercury

emissions were 43 tpy in 1999. In

2000, EPA projected an increase

to 53 tpy by 2005. In reality, EPA

now says, EGU mercury emissions

declined to about 29 tpy by 2005,

and will fall further due to state-only

and new CAA programs. Of these

EGU emissions, only 20-45 percent

is ionic mercury, the form likely

related to human health exposure in

the United States.

ese facts raise a politically

sensitive question: Why regulate

mercury emissions under CAA Sec-

tion 112, as opposed to other pro-

visions, particularly given that (as

EPA says) the projected “benef‌its”