New Pressure on U.S. EPA to Delay Final Mercury Rule

A proposed rule to limit mercury from coal-fired power plants took center stage at a divisive Congressional hearing this week

Lisa Jackson
EPA Administrator Lisa Jackson during Wednesday's Senate hearing/Credit: Senate Environment and Public Works Committee

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WASHINGTON—These days, it would be understandable if EPA Administrator Lisa Jackson began channeling the spirit of former Minnesota Democratic Sen. Ed Muskie.

Frustrated with the automobile industry’s vehement pushback on compliance with emissions standards in 1977, the chief author of the Clean Air Act told colleagues on the Senate floor: “Give them an inch and they’ll take 100,000 miles.”

Thirty-four years later, the debate features power companies’ emissions, but the sentiments of the continuing federal government vs. private sector tug-of-war remain the same. In a nutshell, utilities resent the Environmental Protection Agency’s recent efforts to fashion a host of Clean Air Act updates that dictate when and how to curb a lengthy list of pollutants.

A proposed rule to limit mercury and other air toxics from coal-burning electricity generators took center stage at a divisive Senate Environment and Public Works Committee hearing Wednesday.

Though chairwoman Barbara Boxer of California and her fellow Democrats did their darndest to sing Jackson’s praises, those hosannas were matched by a dirge of gloom and doom from Republicans worried that adapting to these new circumstances would have sweeping and massive repercussions with lost jobs and soaring electricity rates.

The fact is, however, that EPA is under a court order to set new and comprehensive mercury standards. That legal agreement requires final standards on power plants by November. EPA issued the long-awaited new rule in mid-March. It is now in the midst of a 60-day comment period after being published in the Federal Register in early May.

In her opening remarks Wednesday, Jackson explained why limiting mercury — a toxin that causes neurological damage — and other metals such as arsenic, chromium, nickel, as well as acid gases and fine particle pollution will save lives by clearing the air citizens breathe.

“These are simple facts that should not be up for debate,” Jackson continued. “While Americans across the country suffer from this pollution, special interests who are trying to gut long-standing public health protections are now going so far as to claim that these pollutants aren’t even harmful. These myths are being perpetrated by some of the same lobbyists who have in the past testified before Congress about the importance of reducing mercury and particulate matter. Now on behalf of their clients, they’re saying the exact opposite.”

New Pressure From Dingell Democrats

Michigan Rep. John Dingell convinced 26 other House Democrats to sign a five-paragraph letter asking EPA to extend the comment period on the air toxics rule for power plants from 60 days to 120 days.

“Like you, we believe constructive efforts must be made to reduce harmful emissions from our nation’s electric utilities for the betterment of human health and the environment,” Dingell, an author of the Clean Air Act wrote in his June 10 letter. “At the same time, we also must be mindful of the economic impact new regulations could have, especially with the complexity and breadth of applicability for this proposed rule being so significant.”

The letter points out that EPA’s analysis set the cost of the rule at $11 billion annually with retail electricity rates rising roughly 3.7 percent per year.

Sen. John Barrasso (R-Wyo.), who was hostile toward the EPA administrator throughout Wednesday’s hearing, queried Jackson as to how she would handle Dingell’s request.

“We will be responding shortly,” Jackson answered, acknowledging that her agency received the letter. “We have made no determination.”

Dingell was the longtime leader of the House Energy and Commerce Committee until California Rep. Henry Waxman beat him out for that position after President Obama was elected.

His letter emphasizes that extending the comment period won’t violate the consent decree because the court allows EPA to go beyond the November deadline “by providing notice and reasons for a modification.”

NRDC: ‘Desperate Denial’

Conservation organizations such as the Natural Resources Defense Council are opposed to the idea of extending the comment period until September. NRDC is also a litigant in the court case involving the mercury rule.

In an online article titled “Desperate Denial,” John Walke, the advocacy organization’s clean air director, asked readers to consider the sources of data as opponents and proponents of EPA’s air toxics rule for power plants.

“Do you believe doctors at the American Lung Association and American Academy of Pediatrics, EPA scientists, and dozens of peer-reviewed studies that power plants’ air pollution is very harmful and cleaning it up will deliver significant health benefits to all Americans, especially children?” Walke asked.

“Or do you believe the nation’s most heavily polluting utility company, Washington utility lobbyists and the ‘hypothesis’ of a conservative congressman that this pollution does not pose significant health risks and controlling the pollution will not deliver real benefits?”

Utilities Claim Compliance a Burden

Standards for emissions of mercury and other pollutants from utilities will be exceedingly tough because the Clean Air Act requires EPA authorities to gather real-world evidence and match the highest standards.

During testimony at Boxer’s hearing, senior vice president Cathy Woollums explained how the mercury rule would affect MidAmerican Energy Holdings Company. More than half of the 7,048 megawatts of MidAmerican’s nationwide generating capacity is fueled by coal.

Under the rule, her company estimates it would spend more than $1.7 billion outfitting coal-burners at its two regulated utilities — MidAmerican Energy Co. and PacifiCorp — with scrubbers and other clean air technologies. She added that some units might have to be shut down or be converted to natural gas.

“MidAmerican, like many utilities, is concerned about the costs and timetables for the implementation of these EPA rules,” Woollums said. “Especially in this economic climate, it is critical to minimize the cost impact of these rules, which ultimately will be borne by our customers.”

She also pointed to two numbers bandied about that estimate the potential impact of the mercury rule and other EPA Clean Air Act regulations. The Department of Energy figures new rules would shave off 35 to 70 gigawatts of generating capacity. Similarly, the National Economic Research Associates predicts that 47.8 gigawatts of coal-fired generating capacity would be idled by 2015.

That came on the heels of an announcement by American Electric Power that complying with a list of EPA regulations would come at the expense of 600 power plant jobs with annual wages totaling $40 million. AEP, one of the country’s largest coal-burning utilities, did say that installing emissions reduction equipment would create “some” jobs.

Columbus, Ohio-based AEP owns nearly 38,000 megawatts of generating capacity and delivers electricity to more than 5 million customers, mostly in the Midwest.

Some Utilities on Board

Not all power companies and their affiliates are opposed to EPA’s efforts to regulate mercury and other pollutants. Some want the new standards to be initiated sooner rather than later.

“Companies have begun to prepare for a 2015 compliance deadline, and the electric power markets are factoring in the capital expenditures that will be required to comply with the rule,” an organization called the Clean Energy Group wrote in a June 15 letter to Jackson. “Any delay would threaten to undermine those decisions.”

Members of the group include Austin Energy, Constellation Energy, Exelon Corp., National Grid, New York Power Authority, NextEra Energy, PG&E Corp. and Seattle City Light.

“If EPA were to delay the implementation of the Utility Toxic Rule … it would undermine participants’ business decisions and confidence in future market responses based on EPA’s regulations,” continued the letter, signed by Michael Bradley, executive director of the group’s clean air policy initiative.

“Needed regulatory certainty will result from EPA’s timely implementation of regulations consistent with the Clean Air Act, which is in the best interests of the electric industry, the market, and customers.”

Mercury Rule 20 Years Overdue

While in the hot seat for an hour and 45 minutes Wednesday, Jackson patiently emphasized that many power plants have already met the standards laid out in the mercury rule because some states are ahead of the curve. And she added that the pollution control technologies are proven and widely available.

EPA estimates this rule will provide at least $120 billion in health benefits annually by avoiding: 14,000 to 36,000 premature deaths; 240,000 cases of aggravated asthma; 440,000 cases of upper and lower respiratory symptoms; 26,000 hospital and emergency room visits and 1.9 million days of work or school missed due to illness.

“When it becomes final, the cleanup rule that the EPA is putting forward today will save lives, protect the health of millions of Americans and finally bring about an action that is 20 years overdue,” American Lung Association president and chief executive officer Charles Connor said back when the rule was rolled out. “This must happen.”

Boxer has absolutely no beef with that declaration. However, recognizing that the friction in her hearing room was too mighty for even her impassioned pleas to overcome, she appealed to Jackson to fill the peacemaker role.

Early on, Boxer smiled as she told Jackson she looked forward to hearing testimony that could “bring us all together.”

“That’s a big order,” Jackson deadpanned before launching into her prepared remarks.