Catherine O'Neill on CPRBlog {Bio}
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In Coming Utility MACT, EPA Has Clean Air Act Authority to Make Big Strides in Protecting Americans from Mercury Pollution

By Wednesday of next week, EPA is due to publish its long-anticipated rule controlling mercury emissions from coal-fired utilities.  This is how we ought to judge the rule: does it follow the mandate of the Clean Air Act (CAA)? For too long, utilities have managed by various means to fend off regulation required by the CAA. Assuming EPA’s rule at long last complies with Congress’s directives, Americans may look forward to a day when they can again eat fish without serving their families a side of methylmercury. 

The mercury that coal-fired utilities emit is highly toxic to humans. Exposure to even small amounts of methylmercury can lead to irreversible neurological damage. Methylmercury's neurodevelopmental effects place the developing fetus, children, and adults up to age 20 at particular risk. The most recent data also suggest adverse effects on the cardiovascular systems of adults. Mercury emitted to the air from coal plants and other sources gets deposited to surrounding land and waters; it makes its way into fish tissue in the form of methylmercury. The primary route of human exposure to methylmercury is through consumption of fish. 

The saga of federal regulation of mercury emissions from coal-fired utilities is long and lamentable. Although the CAA Amendments of 1990 seemed to portend more determined efforts to reduce emissions of this potent neurodevelopmental toxin, utilities have successfully forestalled any federal requirements that they reduce their mercury pollution. The Bush Administration even attempted to remove utilities from the list of sources whose toxics emissions are to be regulated under section 112 of the CAA – an attempt the D.C. Circuit threw out in 2008. Utilities remain the single largest unregulated source of mercury emissions in the United States today; they contribute some 40% of U.S. mercury emissions.

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EPA's New Boiler Rule Will Deliver Reduced -- But Still Huge -- Health Benefits

This post was written by CPR Member Scholar Catherine O'Neill and Communications Specialist Ben Somberg.

The announcement from EPA Wednesday creating final standards for pollution from industrial boilers is being described by the press as “scale[d] back,” and “half the cost of an earlier proposal.” Those things are true, but the new regulation is no small matter. It will have a significant and positive effect on the health of people across the country and beyond.

Says the Sierra Club: "Though the announcement today is modest by comparison to the proposals put forth by the EPA last June, we urge Administrator Lisa Jackson to forge ahead to protect our children and families’ health." NRDC says: "EPA could have done more, but these standards accomplish long overdue, needed cuts in mercury, benzene, heavy metal and acid gas pollution from industrial plants. While the final biomass standards are notably relaxed in response to industry complaints, overall the safeguards still will save up to 6,500 lives, avoid 4,000 heart attacks, and prevent more than 46,000 cases of aggravated asthma and bronchitis every year. Americans deserve these tremendous health benefits without political interference by Congress."

"It appears that EPA has addressed many of the industry complaints while still putting out standards that would bring significant public health benefits," Frank O'Donnell of Clean Air Watch told Greenwire. "Let's hope that EPA stands its ground when industries argue for further changes."

The rule is long overdue. There are several air pollutants at play here, but let me focus on mercury for a moment. Industrial boilers as a category are the second largest domestic source of mercury, after coal-fired power plants. Mercury emitted to the air from boilers and other sources gets deposited to surrounding land and waters; ultimately, it makes its way into fish tissue in the form of methylmercury – a potent neurotoxin to humans. In fact, exposure to even small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage, placing the developing fetus and children at particular risk. Fish, in many areas a low-cost source of food, is being poisoned by mercury, and advisories suggest reducing or removing it from families' dinner plates as a consequence.

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Environmental Regulation, Jobs, and Human Health: Industry Estimates on Boiler Rule Flunk Economics 101

Economics professors at two major universities just issued their reviews of industry-funded assessments of the costs of EPA’s proposed boiler rule (via NRDC). The professors’ conclusions: “the methodology is fundamentally flawed;” “the resulting estimates of job losses are completely invalid;” “the results reported are useless;” “if I were grading this, I would give it an F.” These strongly-worded indictments should make us sit up and take note. 

Professors Charles Kolstad and Jason Shogren were asked to review industry-funded estimates of the costs of EPA’s proposed boiler MACT rule. These estimates have been cited in support of recent industry claims that it would be too costly and result in a large loss of jobs. The professors’ reviews usefully reveal the serious flaws in the “evidence” around which industry has been spinning its anti-regulatory story. In an earlier post, I examined another aspect of the industry story, showing how it neglected to mention that the estimated benefits of regulating particulates, heavy metals, and dioxins would dwarf the estimated costs (and that's without even counting benefits for mercury reductions). With the assistance of Kolstad and Shogren, we can see how, in addition to belittling the benefits, the industry story has attempted to exaggerate the costs.

Here is some background reading for this assignment:

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Boiler MACT Rule Would Have Enormous Health Benefits from Air Pollutant Reductions -- And That's Not Even Accounting for the Reduced Mercury Emissions

EPA’s proposal to curb emissions from the second largest source of mercury in the United States – industrial boilers and process heaters – has come under fire in recent weeks.  Those industries that would be subject to the “boiler rule” have objected to its costs, and some senators have embraced their claims (see also Lisa Jackson's response). The industry story, however, leaves out important facts.

The industry story does not mention that, on balance, the estimated costs of the rule are dwarfed by the benefits it would deliver in terms of human health. According to the Regulatory Impact Analysis (RIA) for the rule, regulating boilers would result in societal benefits ranging from $18 billion to $45 billion, at a cost of $3.4 billion. Thus, the rule is estimated to deliver net benefits in the neighborhood of $15 billion to $41 billion. To put it another way, these estimates mean that Americans would receive five to twelve dollars in health benefits for every dollar spent to meet the proposed standards.

The benefits accounted for by these numbers reflect real impacts for real people – including some 2,000 to 5,100 fewer premature deaths among us each year; 1,400 fewer people suffering from cases of chronic bronchitis; and 35,000 cases of aggravated asthma prevented.

These figures, moreover, do not even attempt to account for a whole host of the boiler rule’s benefits.  Importantly, while the proposed rule would cut mercury emissions from these sources in half – eliminating 8.3 tons of mercury emissions annually – the resulting benefits aren’t included at all in the RIA’s cost-benefit calculus. In fact, the RIA does not attempt to include the benefits from reducing any of the numerous toxic air pollutants that would be reduced by the rule – it excludes not only mercury, but also other heavy metals and dioxins from its accounting. Were the figures to reflect the considerable benefits of reducing these notoriously toxic pollutants, the cost-benefit tally would even more strongly favor regulating boiler emissions.

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Egg Industry's Effort to Push Salmonella Problem as Consumers' Fault A Worrying Example of "Risk Avoidance" Policy Approaches to Health and Safety Regulation

According to the egg industry, the thousands of people sickened by eggs contaminated with Salmonella enteritidis have only themselves to blame. As USA Today reported:

"Consumers that were sickened reportedly all ate eggs that were not properly or thoroughly cooked. Eggs need to be cooked so that the whites and yolks are firm (not runny) which should kill any bacteria," says Mitch Head, spokesperson for the United Egg Producers.

"Some people may not think of an egg as you would ground beef, but they need to start," says Krista Eberle of the United Egg Producers' Egg Safety Center. "It may sound harsh and I don't mean it to sound that way. But all the responsibility cannot be placed on the farmer. Somewhere along the line consumers have to be responsible for what they put in their bodies."

With more than 500 million eggs to date subject to recall for contamination, this effort to shift the focus to consumers’ behavior deserves scrutiny. Implicit in this shift is an attempt to absolve producers – and the government agencies charged with overseeing these producers and ensuring the health of our food supply – of responsibility. But there are many good reasons for our government to ensure the safety and security of the food we eat. Indeed, Congress has assigned this task to protector agencies such as the Food and Drug Administration precisely because most Americans want to go to their local grocery stores and know that the food sold there will be fit for human consumption.

 

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EPA's New Guidance on Considering Environmental Justice in Rulemaking a Welcome First Step

The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental justice concerns. Specifically, the Guidance directs agency staff involved in rulemaking to “meaningfully engage with and consider the impacts on” communities of color, low-income communities, indigenous populations, and tribes.

EPA’s Guidance responds to an issue raised by CPR Member Scholars at the dawn of the Obama Administration. In our 2008 report, Protecting Public Health and the Environment by the Stroke of a Presidential Pen, we observed that efforts to address environmental injustice had languished in the 15 years since President Clinton issued the Environmental Justice Executive Order (Executive Order 12898). We urged the new president to use his authority to, among other things, alter a status quo in which agencies too often simply failed to see that their actions had environmental justice implications: 

Agencies issue scores of regulations each year that have environmental justice implications.  But these agencies often fail to ask who will bear the burdens and who will reap the benefits of a regulation, or to consider whether the regulation ameliorates or exacerbates current inequities. As a result, environmental justice often fails to make it onto agencies' radar screens.

When agencies do identify environmental justice as a potential concern during the rulemaking process, their responses often indicate a misunderstanding of the relevant issues.  For example, when EPA purported to assess the environmental justice impacts of its final “Clean Air Mercury Rule,” which would have postponed and weakened reductions in mercury emissions, EPA observed that Native Americans, Southeast Asian Americans, and others would be better off with the rule's meager reductions than with nothing.  Indeed, in a particularly callous twist, EPA asked “whether high fish-consuming (subsistence) populations would be disproportionately benefited by the final rule,” despite EPA's own data showing that many in these groups would be left exposed to unsafe levels of mercury in fish.

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EPA Chides Polluters for Downplaying Risk From Portland Harbor Superfund Site; Still, Must Honor Fishing Tribes' Rights

In a welcome move, EPA recently took polluters to task for their attempt to downplay the risks to human health and the environment from the Portland Harbor superfund site along the Willamette River in Portland, Oregon (h/t Oregonian for noting the EPA action). As part of the cleanup effort for the site, the polluters, known as the Lower Willamette Group (LWG), had agreed to conduct an assessment of the risks posed by the contaminants there. This risk assessment will serve as the basis for determining vital questions about cleanup at the site, including the degree to which the contaminants will be remediated and the extent to which health risks will actually be reduced. Because the members of the LWG will likely have to foot much of the cleanup bill, it's unsurprising that they sought to lowball the risks to humans and the environment: the lower the risks at a site, the less expansive – and less expensive – a cleanup is likely to be. Any such tendencies are meant to be kept in check by the EPA however, which oversees LWG’s risk assessment and, in the end, sets the standards for the Portland Harbor site. To its credit, EPA’s preliminary comments raise several pointed objections to the LWG risk assessment, ultimately concluding that it improperly “minimize[s] the risk to human health and the environment.”

Consider one example of LWG’s efforts to belittle the risks from the site. Portland Harbor is contaminated with polychlorinated biphenyls (PCBs), dioxins, mercury, polycyclic aromatic hydrocarbons (PAHs), and other toxic pollutants known to cause cancer and harm human health. Many of these contaminants bioaccumulate in fish tissue; humans are exposed when we eat these fish. In fact, for many of these pollutants, fish consumption is the primary route of human exposure. As a consequence, a crucial variable for assessing the risks posed by the site is the answer to the question: how much fish do people consume?

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Reducing Mercury Emissions From Coal-Fired Power Plants: Yes We Can (And Could Have, Years Ago)

Three recent developments in the saga of efforts to regulate mercury emissions from coal-fired utilities are significant. Early last week, Michigan became the twenty-third state to require coal-fired utilities within its jurisdiction to reduce their mercury emissions. Michigan’s regulation requires these sources to cut mercury emissions by 90% by 2015. Then, on Thursday, the EPA reached a settlement with environmental groups who had sued the agency for failing to act to regulate mercury emissions. In the agreement (see NYTimes also), the EPA pledged to set standards for mercury and a number of other toxics by late 2011.

The EPA and Michigan announcements come on the heels of a Government Accountability Office (GAO) report released early this month indicating that coal-fired power plants across the nation have achieved substantial reductions in emissions of this toxic air pollutant. The GAO report, Clean Air Act: Mercury Control Technologies at Coal-Fired Power Plants Have Achieved Substantial Emissions Reductions, found that these sources were able to reduce mercury emissions by as much as 99% using currently available technologies. It found, moreover, that these reductions “have been achieved at a relatively low cost.”

But wait – didn’t we hear from the Bush Administration and the utilities that control technologies capable of reducing mercury emissions on this order were still years away from commercial viability? And that this reality warranted a federal regulation that sought only modest emissions reductions (70%) and delayed for years the date by which these reductions would be achieved? (The Bush Administration's regulation, never implemented, would have set the deadline for 2018 – although structural features of the program meant that actual reductions wouldn’t approach 70% until some time in the 2020s or even the 2030s).

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EPA Touts Remedy That Leaves Fish Off LA Coast Contaminated with DDT and PCBs for Years

With some fanfare, the EPA announced last week that it has selected a cleanup strategy for the Palos Verdes Shelf (PVS) Superfund Site off the coast of southern California – an area that has been termed “ the world’s largest DDT dump.” The EPA touts its plan as “a major milestone” that puts the site “on the road to remediation.” Nowhere, however, does EPA mention that this road is longer and more tortuous than it could or should have been. As I elaborated in an earlier entry, EPA’s selected remedy (its “preferred alternative”) provides for capping a much smaller area of contaminated sediment than another alternative EPA considered but rejected. Its selected remedy also delays the dates by which cleanup levels for DDTs and PCBs will be attained relative to the alternative – putting off until further in the future the time by which fish from the waters off the Palos Verdes peninsula will be safe to eat.

EPA’s press release continues in this self-congratulatory vein: “The EPA will spend more than $50 million to cap the most contaminated sediment on the shelf, as well as continue the highly effective public outreach program to protect at-risk populations from consuming contaminated fish.” The public outreach program to which EPA refers relies on fish consumption advisories that warn people to avoid or reduce their consumption of certain fish caught in the waters off the Palos Verdes peninsula. That is, it enlists a strategy, which I have termed “risk avoidance,” that asks people to alter their practices in order to protect themselves from contamination that persists in the environment. In this case, EPA and its partners have delivered this message by means of signs, brochures, and other forms of community outreach. The latest advisory recommends that everyone avoid eating white croaker, topsmelt, or barred sand bass caught in an area extending more than 30 miles from the Santa Monica pier south to the Seal Beach pier, and that, additionally, women and children should avoid barracuda or black croaker from this area. The advisory also includes less strict recommendations for a broader area of coastline, stretching more than 100 miles in total, including the entire coastlines of Los Angeles and Orange counties, and part of Ventura County.

It is unclear how the EPA can fairly describe its public outreach program as “highly effective.” Study after study has shown that fish consumption advisories frequently fail to reach or to be understood by their intended audiences. Even when these hurdles are overcome, people may decline to follow advisories’ recommendations: whether for economic, cultural, or other reasons, people may not be able to alter the way they prepare their fish or may not have the option to travel “elsewhere” to fish in less contaminated waters. The EPA is surely aware of the relevant figures. Among other things, the National Environmental Justice Advisory Council (NEJAC), a multi-stakeholder federal advisory body formed to advise EPA, made precisely these observations in its 2002 report Fish Consumption and Environmental Justice.

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USGS's Study on Mercury in Fish: Trouble in the Water

The United States Geological Survey (USGS) issued a report today finding widespread mercury contamination in U.S. streams. The USGS found methylmercury in every fish that it sampled – an extraordinary indictment of the health of our nation’s waters. The USGS reported that the fish at 27% of the sites contain mercury at levels exceeding the criterion for the protection of humans who consume an average amount of fish, as established by the U.S. Environmental Protection Agency. But EPA’s criterion grossly understates the risk to those people whose fish consumption practices differ from those of the “average American,” particularly members of the various fishing tribes, Asian-Americans, and those hailing from the Pacific or Caribbean Islands. Whereas EPA’s criterion is based on the assumption that people eat 17.5 grams per day of fish – about one fish meal every two weeks, on average – people in these groups consume fish at several times this rate. Many Native peoples in the Pacific Northwest, for example, currently eat hundreds of grams per day. The USGS findings are thus all the more troubling when one considers these higher-consuming populations – the USGS numbers mean that few of the fish sampled are fit for consumption by these people.

The concern raised by widespread mercury contamination in fish is even more pressing in these tough economic times. This summer, more and more people throughout the United States looked to fish for food (Update: for more on this, see Reuters, La Crosse Tribune, Detroit Free Press, and New York Daily News). This makes perfect sense: if they aren’t contaminated, fish are good for you. Nutritionists continue to extol the health benefits of eating fish. Fish are an excellent source of protein, omega-3 fatty acids, and a host of other nutrients essential to human health. And, if one can drop a line or dip a net into nearby waters, fish can be a relatively inexpensive way to put dinner on the table for one’s family.

But those fishing for food are placed in a bind. The USGS findings add weight to other studies that have led federal, state, and tribal governments to issue fish consumption advisories warning people to reduce or eliminate fish entirely from their diet due to mercury contamination. In fact, 48 states have issued advisories placing some or all of their lakes, rivers, or coastal waters under advisory for mercury (see the EPA's site on this).

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