Archives
Mercury Poisoning and New-Source Review
I tried to write this entry yesterday, but it got lost in the ether. When I tried to save it, the "AOL Journals is unavailable at this time" page appeared. AAAAAH! I guess it's my fault for not saving it before it tried to save it, or something.
Why ABBA? Why anybody but Bush again? Besides the obvious things like the Iraq fiasco and the jobless recovery and the budget deficit and the class warfare, there are some serious problems that have been going on for quite a while that have been taken to a whole new level by this administration. One problem is the money corruption. The keys to the kingdom are now in the hands of the biggest campaign contributors. Another problem is the revolving door between government and industry wherein the industry movers and shakers are put in charge of regulating those industries. The best place to see the results of this is in environmental policy.
From Thursday's USA Today:
Of the 4 million babies born in the USA in 2000, more than 300,000 of them and as many as 600,000 may have been exposed to "unacceptable" levels of methyl mercury because their mothers ate a diet rich in fish, a study finds.
The new study, by researchers at the Office of Prevention, Pesticides and Toxic Substances at the Environmental Protection Agency, repeats a warning by numerous studies that the neurotoxin is particularly dangerous for growing fetuses.
Exposure to even low levels of mercury in utero can cause developmental problems and difficulties with visual and motor integration...
Fish become high in mercury by eating microbes that consume it or by eating other fish that have eaten the microbes. Much of the mercury in rivers, lakes and oceans comes from industrial pollution and coal-fired power plants.
So what's going on here? Paul Krugman has the short version in his April 6 column, "The Mercury Scandal." This column deals with the political corruption and the problems with putting mercury under the "cap-and-trade" system, but it barely scratches the surface of the situation. A much more comprehensive view can be found in Bruce Barcott's April 4 NY Times Magazine cover story, "Changing All the Rules." It all revolves around an arcane set of regulations called new-source review...
Of the many environmental changes brought about by the Bush White House, none illustrate the administration's modus operandi better than the overhaul of new-source review. The president has had little success in the past three years at getting his environmental agenda through Congress. His energy bill remains unpassed. His Clear Skies package of clean-air laws is collecting dust on a committee shelf. The Arctic National Wildlife Refuge remains closed to oil and gas exploration.
But while its legislative initiatives have languished on Capitol Hill, the administration has managed to effect a radical transformation of the nation's environmental laws, quietly and subtly, by means of regulatory changes and bureaucratic directives. Overturning new-source review -- the phrase itself embodies the kind of dull, eye-glazing bureaucrat-speak that distracts attention -- represents the most sweeping change, and among the least noticed.
(NY Times articles are only available online for a short time, so the following is a summary of "Changing All the Rules.")
Back in 1970, Congress passed the Clean Air Act and President Nixon signed it. It required industrial polluters to minimize their emissions of harmful pollutants and established national air-quality standards to be met by 1975. In a concession to industry, the tough new standards would only apply to new facilities.
By 1977, Congress realized it had a problem on its hands. The national air-quality standards weren't met. Many companies were upgrading their old plants instead of building new ones that would have to meet the standards. So Congress updated the Clean Air Act and introduced new-source review regulations to bring older plants into compliance. Eventually, a company would have to update its equipment. When modifications were made, new-source rules required the company to install the best available pollution-control technology. Companies could phase in the switch to cleaner factories over several years instead of all at once.
Throughout the 80's and 90's, there was a lot of haggling over the N.S.R., specifically over the line between "routine maintenance" and a significant "physical change," which would require pollution upgrades. The Clinton administration tried to streamline the rules, but was unable to come to any kind of agreement with the companies.
But while the government and industry argued over rule changes, no one was making sure that power plants were complying with the rules we already had. It wasn't until 1996 that coal-fired power plants finally moved to the top of the EPA's to-do list. Suddenly, the EPA realized that many of the nation's biggest energy companies had updated their plants without putting in the new pollution-control equipment and were releasing millions of tons of pollutants. After two years of investigation, the EPA had compiled a mountain of evidence of wrongdoing by the coal-burning power industry. The agency now had the legal leverage to force the industry to install up-to-date pollution controls and make monumental cuts in emissions. The potential penalties were enormous: up to $27,500 per plant for each day it was in violation -- dating back to the 70's in some cases. But the Clinton EPA was more interested in reducing the amount of pollution than they were in hammering the companies with fines.
But the industry refused to address the EPA complaints so, in November 1999, the agency took the polluters to court. The Justice Department, on behalf of the EPA, filed suit against seven electric utility companies in the Midwest and South: FirstEnergy, American Electric Power and Cinergy of Ohio; Southern Indiana Gas and Electric; Illinois Power; Tampa Electric, in Florida; and Alabama Power and Georgia Power, subsidiaries of Southern Company. The EPA also issued a compliance order to the TVA for similar violations at seven plants and put several other utilities on notice -- clean up your act or you're next.
After failing to get a rider attached to an appropriations bill that would have allowed "routine maintenance" while the lawsuits were pending, Tampa Electric settled with the government. They agreed to pay a $3.5 million civil penalty and spend more than $1 billion on new pollution controls. The agreement reduced pollution by 123,000 tons annually. The civil penalty was less than 2% of Tampa Electric's 1999 profits.
Other utilities followed Tampa Electric to the bargaining table, but some began writing checks to Bush's presidential campaign fund. FirstEnergy President Anthony Alexander, Reliant Resources CEO Steve Letbetter, and Reliant Chairman Don Jordan became Bush Pioneers; they had raised at least $100,000. MidAmerican Energy CEO David Sokol joined them for the 2004 campaign. Southern Company Executive Vice President Dwight Evans is a Ranger -- he's raised over $200,000. Each of these companies was either in litigation or was soon to be under investigation for new-source review violations. Six other Pioneers were lawyers or lobbyists for NSR violators.
The Reagan administration ran into trouble with environmentalists by appointing extremely pro-industry officials to high-level positions: James Watt became the secretary of the interior and Anne Gorsuch became the head of the EPA. Bush officials learned from those mistakes and appointed the very moderate Christie Todd Whitman head of the EPA. They appointed the pro-industry people to the under-the-radar positions. Jeffrey Holmstead, a lawyer and lobbyist for an electric utility trade group that sought to weaken the Clean Air Act, became an assistant EPA administrator for air and radiation. His job would be to change new-source review regulations.
When President Bush took office, a bizarre energy crisis was developing in California. Bush went on CNN and blamed the environmentalists: "If there's any environmental regulation that's preventing California from having 100 percent max output at their plants -- as I understand there may be -- then we need to relax those regulations." A few days earlier, he had created the National Energy Policy Development Group, a task force headed by Vice President Dick Cheney charged with developing a national energy policy...
Cheney's energy task force solicited suggestions from various quarters, but few outside a tight circle of industry insiders were able to make themselves heard. Although the vice president continues to fight a lawsuit -- now before the Supreme Court -- that would require him to divulge the names of industry executives consulted by his task force, documents released in the course of the legal battle reveal the tenor of the exchanges.
On March 18, 2001, Joseph Kelliher, a top assistant to Energy Secretary Spencer Abraham, e-mailed Dana Contratto, an energy-industry lobbyist. ''If you were King, or Il Duce,'' Kelliher wrote, ''what would you include in a national energy policy . . . ?'' Apparently that was one of many e-mail messages to industry lobbyists, for Kelliher's electronic mailbox was soonpinging with activity. A March 20, 2001, message from Jim Ford, lobbyist for the American Petroleum Institute, a powerful oil-and-gas-industry trade group, included a ready-made decree. ''The last document,'' Ford wrote, referring to one of 10 attachments, ''is a suggested executive order to ensure that energy implications are considered and acted on in rulemakings and other executive actions.'' President Bush would issue a very similar executive order two months later, the day after the energy task force report was released.
Another Kelliher correspondent, Stephen Sayle, a Republican Congressional aide, who is now an energy lobbyist, added a somewhat abashed note to the end of his March 23, 2001, wish list, which included a plea to stop enforcement of new-source review. ''Obviously, this is a dream list,'' he wrote. ''Not all will be done. But perhaps some of these ideas could be floated and adopted.'' In fact, Sayle was being needlessly pessimistic; most of the items on his list, many of which dealt with new-source review, were eventually adopted.
Many more wish lists arrived at the Energy Department, and many of them led with the same idea: gutting new-source review. In case the administration didn't get the message, a consortium of energy companies hired Haley Barbour, former chairman of the Republican National Committee, to press their cause in a face-to-face meeting with Vice President Cheney. According to a recent article by Christopher Drew and Richard A. Oppel Jr. in The New York Times, Barbour was accompanied in that meeting by Bush's friend Marc Racicot, who is now chairman of the president's re-election campaign.
Whitman and other EPA officials freaked out over a draft of the National Energy Policy circulated in April 2001...
Tom Gibson, an associate E.P.A. administrator appointed under President Bush, sent a memo to the task force director arguing that one of the president's, and the policy's, fundamental assumptions -- that environmental regulations had hamstrung American domestic energy production -- was flat wrong. ''Costs of compliance with environmental regulations are overstated, several inaccurate statements and opinions are presented as factual and no citations are provided for many of these statements,'' Gibson wrote. He and other E.P.A. officials, he continued, ''are very concerned that this language is inaccurate and inappropriately implicates environmental programs as a major cause ofsupply constraints. . . . Such a conclusion, in our opinion, is overly simplistic and not supported by the facts.''
On May 16, 2001, Bush's final National Energy Policy was published...
In its 170 well-designed, color-illustrated pages lay the administration's vision of the environmental future of the United States. The policy's defining notion was simple: environmental regulations have constrained America's domestic energy supply. In broad strokes, the N.E.P. laid out the next three years of the Bush administration's energy and environmental agenda: roll back wilderness and wildlife protections to open up more public land to oil and gas development; establish fast-track hydropower permits; expand offshore oil and gas drilling; and replace tough Clean Air Act rules, including new-source review, with an industry-friendly market-based pollution trading system. These weren't items on a wish list. They were marching orders. Among the first to be carried out was the mandate to overhaul new-source review.
The White House directed the Justice Department to review its cases against the Southern Company, American Electric and others to see if any of the suits could be dropped. During the same period, the NSR working group was disbanded and Jeffrey Holmstead began to rewrite the rules. The Energy Department took an active role in drawing up new-source review changes.
In January 2002, a setback: The Justice Department reported that the lawsuits against Southern Company and the others were legal and warranted and would be "vigorously" prosecuted.
On February 14, 2002, (Valentines Day, how appropriate!) President Bush introduced his Clear Skies Initiative, which he said "sets tough new standards to dramatically reduce the three most significant forms of pollution from power plants -- sulfur dioxide, nitrogen oxides and mercury." But the EPA was already on track to require deeper reductions in air pollution than Clear Skies cap-and-trade proposals. (Cap-and-trade sets national pollution levels, a cap, and allows polluters to trade/buy credits from cleaner plants. If you read the Krugman column, you know the problem with mercury: it's heavy and sinks to the ground and water near where it is emitted, creating hot spots around polluting plants.) Clear Skies allowed 50% more sulfur dioxide, almost 40% more nitrogen oxides and three times as much mercury as the Clean Air Act. Clear Skies stalled in Congress.
Eric Schaeffer, the EPA's head of civil enforcement, resigned in early 2002 because he was tired of "fighting a White House that seems determined to weaken the rules we are trying to enforce." Negotiations with the energy companies over new-source review that had been leading to the elimination of an estimated four million tons of air pollution annually collapsed...
Officials at the power companies named in the new-source review lawsuits, who had been negotiating with E.P.A. officials, were well aware that White House appointees were drafting new rules that would all but scuttle N.S.R., and they lost their incentive to cut deals. Beginning in 2001, soon after Bush took office, negotiations began to break down. ''We were 80 percent of the way done with seven or eight companies, and one by one they just walked away,'' said Bruce Buckheit, who conducted many of the negotiations himself. Even done deals fell apart. In late 2000, E.P.A. officials reached an agreement in principle with Cinergy that was designed to cut nearly 500,000 tons of the company's annual emissions. By 2002, Cinergy had backed out.
The key question in the rewritten NSR rules was the line. Where would the line be drawn between "routine maintenance" and significant overhauls that would trigger pollution-control upgrades? Sylvia Lowrance, the EPA's deputy assistant administrator for enforcement, was asked to suggest a financial threshold. Lowrance studied years of data and came up with 0.75%. If the total value of a generating unit was $1 billion, a power company could spend up to $7.5 million a year on repair and maintenance without triggering new pollution controls.
On November 22, 2002, the EPA revealed its overhaul of new-source review. Bush did not issue a statement. Whitman declined to attend the news conference. No cameras were allowed. Jeffery Holmstead ran the show "which seemed timed to hit the weekly news cycle at its Friday night nadir."
''There will be emissions reductions as a result of the final rules that we are adopting today,'' Holmstead said. The new rules gave utilities much more maneuverability under N.S.R. The E.P.A. adopted Carol Browner's old ''micro-cap'' idea -- but abandoned its critical component, the gradual tightening of the cap. Utilities that installed new pollution-control equipment were given 10-year exemptions from further upgrades. An official with the National Association of Manufacturers called the new rules ''a refreshingly flexible approach to regulation.'' The usually staid American Lung Association, in a report issued with a coalition of environmental groups, called the rule changes ''the most harmful and unlawful air-pollution initiative ever undertaken by the federal government.''
The crucial detail left out of the final report was the line, the contested definition of "routine maintenance." The Bush EPA was still studying the matter.
Before the important percentage was announced, two setbacks: the attorneys general of nine states filed suit to stop the new rules from taking effect. They charged that the changes were so sweeping and damaging that the EPA could not make them without Congressional approval. The Bush administration's administrative approach to undoing the new-source review, the lawsuit argued, was illegal.
Then, on August 27, 2003, Whitman announced her resignation. Marianne Horinko, acting EPA administrator, was left to announce the final routine maintenance rule. The threshold would not be Lowrance's 0.75%. Utilities would be allowed to spend up to 20% of a generating unit's replacement cost per year without tripping the NSR threshold...
To E.P.A. officials who had worked on N.S.R. enforcement, who had pored over documents and knew what it cost to repair a generator, the new threshold was absurd. ''What I don't understand is why they were so greedy,'' said Eric Schaeffer, the former E.P.A. official. ''Five percent would have been too high, but 20? I don't think the industry expected that in its wildest dreams.''
The framework of new-source review would remain, but the new rules set thresholds so high that pollution-control requirements would almost never come into effect. ''It's a moron test for power companies,'' said Frank O'Donnell, executive director of the Clean Air Trust, a nonprofit watchdog group. ''It's such a huge loophole that only a moron would trip over it and become subject to N.S.R. requirements.''
The report from the American Lung Association and various environmental groups estimated that compared with enforcement of the old N.S.R. rules, the new rules would result in emissions increases of 7 million tons of sulfur dioxide and 2.4 million tons of nitrogen oxides per year by 2020. Had the newrules been in effect before 1999, the lawsuits that the Justice Department filed against the power companies would have been impossible: nearly every illegal action the power companies were accused of back then would have been legal under the new rules.
The announcement of the 20 percent limit had a devastating effect on the E.P.A.'s enforcement division. ''Under the new rules,'' Buckheit said, ''almost everything we worked to achieve is wiped out.'' Two months after Horinko's announcement, in November 2003, J.P. Suarez, the Bush-appointed E.P.A. assistant administrator for enforcement, informed staff members that the agency would newly ''evaluate,'' and perhaps choose not to pursue, existing N.S.R. investigations, except those cases that the Justice Department had already taken to federal court. Investigations into 70 companies suspected of violations of the Clean Air Act were abandoned.
On December 24, 2003, a federal appeals court halted implementation of the new-source review rules, ruling that the new regulations could not go into effect until the attorneys general lawsuit was heard.
Mike Leavitt, the new EPA head, has proposed two new regulations. The first would, in the short term, permit the release of as much as seven times as much mercury as current law allows. The second, the interstate air-quality rule, set new national caps on sulfur dioxide and nitrogen oxides -- an administrative enactment of Bush's Clear Skies Initiative.
Much more on the Bush administration's environmental policies, including new-source review, can be found at the Bush Archives of the Sierra Magazine. Marigolds2 has written some very good posts about the dangers of mercury and the efforts of groups like MoveOn.org, the Natural Resources Defense Council and others to do something about it. Check out her three-part "Fish Story" and her two-part "Hotter Tuna."
fdtate313 at 4:38:00 AM EDT Blog about this entry |
Add to del.icio.us | 
digg this
-
The lyrics are Streets of Philadelphia, Springsteen. Good choice.
-
Mr. Bush does not have an environmental policy in the traditional sense. His environmental policy is to diminish or do away with any environmental control that hinders commerce or oil production. No one talks about the deficit, the deteriorating war situation or the immigrant problem. Bush has got to go.
4/17/04 4:00 AM