Mercury Emissions to the Air: Regulatory and Legislative Proposals

Congressional research reportMay 26, 2004

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Mercury Emissions to the Air:

Regulatory and Legislative Proposals

Updated May 26, 2004

James E. McCarthy

Specialist in Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Mercury Emissions to the Air:

Regulatory and Legislative Proposals

Summary

On December 15, 2003, the Environmental Protection Agency (EPA) proposed

standards for emissions of mercury from coal-fired electric power plants, under the

authority of Sections 111 and 112 of the Clean Air Act. (The proposal appeared in

the Federal Register January 30, 2004.) In their first phase, the standards could

require a 29% reduction in emissions by 2008 or 2010, depending on the regulatory

option chosen. A nearly 70% reduction would take effect in 2018, although EPA

indicates that flexibility built into the proposed standards could delay the full 70%

reduction to as late as 2030.

EPA’s analysis of the proposed rule indicates that its benefits would outweigh

the compliance costs by a factor of at least 16 to 1, leading many critics of the

proposal to ask why the regulations should not be more stringent, or implemented

more quickly. The Agency’s official position is that technology will not be available

to achieve reductions greater than 30% until after 2010. EPA’s own Office of

Research and Development (ORD) appears to disagree, however. A recent ORD

white paper found that reductions of 72% - 98%, depending on coal type, are already

being achieved at some plants using current technology. Other issues likely to be

raised in the public comment period, which extends until June 29, include the

impacts on eastern coal production and the effect of the proposals on mercury “hot

spots.”

In addition to EPA’s regulatory effort, in the current Congress nine bills have

been introduced to regulate these emissions. An Administration bill, the “Clear Skies

Act,” has many points in common with the EPA regulatory proposal. The other bills

before Congress are generally more stringent than the Administration’s approach.

These regulatory and legislative proposals reflect increasing concern over the

potential health effects of mercury emissions. Mercury is a potent neurotoxin that

can affect human health at very low concentrations. EPA considers children born to

women with umbilical cord blood-mercury concentrations above 5.8 parts per billion

to be at increased risk for adverse health effects, such as delayed development,

neurological defects, and mental retardation. Recent EPA studies conclude that at

least 7.8% (and possibly as many as 15.7%) of American women of child-bearing age

have blood mercury levels above this threshold.

U.S. air emissions of mercury come from eight principal sources. Of these, the

largest source, and the last major source for which emission standards have been

proposed, is coal-fired electric power plants. Coal-fired power plants account for

between one-third and one-half of total U.S. mercury emissions.

This report provides background on mercury and reviews regulatory and

legislative proposals to reduce emissions of mercury to the air. CRS Report

RL32203 and CRS Report RL31908 discuss legal issues raised by EPA’s proposed

rules and mercury in products and waste, respectively. This report will be updated

as warranted.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sources of Emissions / Status of Regulations . . . . . . . . . . . . . . . . . . . . . . . . 2

Regulation of Non-Utility Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Electric Utilities and Mercury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

EPA’s December 15 Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

What the Standards Would Achieve . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Residual Risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Costs and Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Should the Standards Be More Stringent? . . . . . . . . . . . . . . . . . . . . . . . 9

Hot Spots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Effects on Eastern and Western Coal . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

List of Tables

Table 1. Mercury (Hg) Emissions Estimates and Current Regulatory Status . . . . 3

Table 2. Mercury Emission Standards Under the Proposed Utility

MACT Rule (in 10-6 lb/MWh) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Table 3. Estimated Emission Reductions and Cost of Proposed Utility

MACT Rule, by Coal Type . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Table 4. Estimated Changes in Coal Use from Imposition of the Proposed

Utility MACT Rule, 2000-2010, by Region . . . . . . . . . . . . . . . . . . . . . . . . 14

Table 5. Comparison of Mercury Emission Legislation . . . . . . . . . . . . . . . . . . . 20

Mercury Emissions to the Air: Regulatory

and Legislative Proposals

Background

Mercury is a potent neurotoxin that can cause adverse health effects at very low

concentrations. Concerns about public exposure to mercury have grown in recent

years as research has indicated its presence at significant levels in numerous species

of fish, and as analyses of dietary intake and resulting blood levels have pointed to

potential health risks from mercury ingestion, particularly for women of child-bearing

age and developing fetuses.

According to the Environmental Protection Agency (EPA), as of December

2002, 45 states had issued fish consumption advisories due to mercury. Eighteen

states (primarily in the Midwest and Northeast) have issued statewide advisories for

mercury in all their freshwater lakes and/or rivers. Ten states, primarily in the South,

have statewide advisories for mercury in their coastal waters. In all, the advisories

cover more than 12 million acres of lakes and roughly 473,000 river miles.1

Mercury reaches water bodies from naturally occurring sources, from past uses

(many of which, such as fungicide application to crops, are now banned), from

disposal of mercury-containing products, and from current activities (principally

combustion of fuels containing mercury in trace amounts). Mercury released to the

atmosphere can circulate for up to a year before being deposited on land or in water.

Thus, it is widely dispersed, and often is transported thousands of miles from the

sources of emissions.2 According to EPA, U.S. sources contributed only 3% of the

5,500 tons of mercury emitted to the atmosphere on a global basis in 1995.3 Of the

mercury deposited in the United States, however, about 60% comes from U.S.

sources.4

U.S. EPA, Office of Water, “Update: National Listing of Fish and Wildlife Advisories,”

Fact Sheet, May 2003, pp. 4-5, available at

[http://www.epa.gov/waterscience/fish/advisories/factsheet.pdf].

U.S. EPA, Office of Air Quality Planning and Standards, 1997 Mercury Study Report to

Congress: Overview, December 1997, p. 1, available at

[http://www.epa.gov/ttn/atw/112nmerc/mercover.html].

Ibid.

U.S. EPA, Office of Air and Radiation, Mercury White Paper, p. 1, available at

[http://www.epa.gov/ttn/oarpg/t3/memoranda/whtpaper.pdf].

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Because mercury emissions are concentrated in specific areas, and because of

variations in precipitation patterns, mercury is not deposited evenly across the United

States. The highest deposition rates, according to EPA, “occur in the southern Great

Lakes, the Ohio Valley, the Northeast, and scattered areas in the Southeast.”5

Of particular concern for aquatic organisms and human health is mercury in the

form of methyl mercury. Nearly all of the mercury that accumulates in fish tissue is

methyl mercury, an organic compound formed by a microbial process, often in

wetland environments. Once formed, methyl mercury tends to bio-accumulate in

aquatic organisms, increasing concentrations at each level of the food chain. “As a

result, top predators in a food chain, such as largemouth bass or walleye, may have

concentrations of these chemicals in their tissues that may be a million times higher

than the concentrations in the water.”6

Children born to women with fetal cord blood concentrations of mercury above

5.8 parts per billion (ppb) “are at some increased risk of adverse health effects,”7

according to EPA. These health effects include delayed development, neurological

defects, and mental retardation. Recent EPA analyses conclude that at least 7.8%

(and possibly as many as 15.7%) of women of child-bearing age had blood-mercury

levels high enough that their umbilical cord blood would have been above the 5.8

ppb threshold in 1999-2000.8

Sources of Emissions / Status of Regulations

As shown in Table 1, U.S. air emissions of mercury come from eight principal

sources. Of these, the largest source, and the last source for which emission standards

have been proposed or implemented, is coal-fired utility boilers (i.e., coal-fired

electric power plants). These accounted for an estimated 52 tons of mercury

emissions per year in 1994-1995, about one-third of total U.S. mercury emissions at

the time.9

Regulation of Non-Utility Sources. As of December 2003, EPA had

proposed or promulgated regulations for all major sources of mercury emissions.

Ibid.

National Listing of Fish and Wildlife Advisories, previously cited, p. 5.

U.S. EPA, Office of Children’s Health Protection, America’s Children and the

Environment: Measures of Contaminants, Body Burdens, and Illnesses, 2nd edition, February

2003, available at [http://www.epa.gov/envirohealth/children/ace_2003.pdf], p. 59.

Kathryn R. Mahaffey, “Methylmercury: Epidemiology Update,”, presented at U.S. EPA

National Forum on Contaminants in Fish, San Diego, CA, January 26, 2004, p. 5. Available

at [http://www.epa.gov/waterscience/fish/forum/2004/presentations/monday/mahaffey.pdf].

EPA does not have current data for all sources of mercury emissions. Since the mid1990s, mercury emissions have been reduced substantially from the three waste

combustor/incinerator categories, and marginally from electric utilities. In its regulatory

impact analysis for the proposed electric utility rule, EPA used 1999 data showing utility

emissions of 48 tons as the baseline against which to compare reductions.

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Table 1. Mercury (Hg) Emissions Estimates

and Current Regulatory Status

Source

Emissions

(tons/year)

Percentage Current Status of Hg Regulations

of Total

Coal-fired Utility

Boilers

33% 12/15/03 proposal would reduce

emissions 69% (to 15 tons) by 2018,

or 29% (to 34 tons) in 2007.

Large (>250 tons per

day) Municipal Waste

Combustors (MWC)

19% Regulated: reductions estimated at

about 95% from 1990 levels.

Coal-fired Commercial/

Industrial Boilers

13% Rule proposed 1/13/03 would

reduce emissions about 30%.

Medical Waste

Incinerators

10% Regulated: reductions estimated at

about 94% from 1990 levels, mostly

through closures.

Oil-fired Commercial/

Industrial Boilers

5% Rule proposed 1/13/03 would

reduce emissions about 30%.

Mercury Cell Chloralkali Plants

7**

4% Rule promulgated 12/19/03 will

reduce emissions 73% by 12/19/06.

Hazardous Waste

Combustors

4% Regulated: reductions estimated at

about 50% from 1990 levels.

Portland Cement Plants

3% Rule, promulgated 6/14/99, reduces

hazardous air pollutant metal

emissions 24%; remanded by U.S.

Court of Appeals, D.C. Circuit to

require specific standard for mercury

and 2 other pollutants.

TOTAL*

146 of 158

92%

*Emissions estimates are for 1994-1995. Totals may not add due to rounding. Other sources

include residential boilers (4 tons); other manufacturing, including pulp and paper manufacturing

and 9 other industries (4 tons); area sources, such as lamp breakage, lab use, and dental preparations

(3.4 tons); and geothermal power (1.4 tons).

** Data for the chlor-alkali sector are subject to considerable uncertainty. Chlor-alkali plants

produce chlorine by subjecting liquid mercury and saturated brine to an electric current. The

mercury binds with potassium or sodium in the process, but later is separated and reused. In the

year 2000, 65 tons of mercury that the plants consumed could not be accounted for.

Sources: Emissions data from U.S. EPA, Mercury Study: Report to Congress, Volume II. RPS452/R-97-004 (December 1997), p. ES-6; regulatory status from EPA, Mercury White Paper (not

dated), with information updated by telephone communications with EPA.

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The authority for most of these regulations is Section 112 of the Clean Air Act,

which requires National Emission Standards for Hazardous Air Pollutants. In

amending Section 112 in 1990, Congress included a list of 188 hazardous air

pollutants to be regulated – mercury among them. EPA was directed to identify

sources of these pollutants and impose Maximum Achievable Control Technology

(MACT). Sources of mercury emissions, including coal- and oil- fired commercial

and industrial boilers, chlor-alkali plants, and Portland cement plants, have

regulations either proposed or promulgated under this authority.

Separately, Section 129 of the Clean Air Act requires emission standards for

solid waste incinerator units, including municipal and medical waste incinerators.

These standards, which were promulgated in the mid-1990s, limit 11 categories of

pollutants, including mercury. Under the standards, municipal and medical waste

incinerators, which together accounted for 29% of total U.S. mercury emissions

before regulation, have achieved emission reductions of 95%, and together emitted

only 2.2 tons of mercury in 2000, according to EPA.10 As a result, coal-fired utilities

may now account for nearly half of U.S. mercury emissions.11

Electric Utilities and Mercury

Electric utilities were singled out for special consideration by the 1990 Clean

Air Act Amendments. Under Section 112(n), EPA was required to undertake two

studies of mercury emissions and other hazardous air pollutants from electric utility

steam generating units, and to report to Congress before deciding whether to impose

MACT standards. One study was to characterize emissions from utilities, municipal

waste incinerators, and other sources, determine their health and environmental

effects, identify the technologies available to control emissions, and estimate the

costs of such technologies. The other study was to determine the hazards to public

health anticipated as a result of emissions of all hazardous air pollutants emitted by

electric utilities after imposition of other requirements of the act, and describe

“alternative control strategies for emissions which may warrant regulation under this

section.” After considering the results of this study, “the Administrator shall regulate

electric utility steam generating units under this section [Section 112], if the

Administrator finds such regulation is appropriate and necessary....”

Having submitted the required reports to Congress under this section in 1997

and 1998,12 EPA Administrator Carol Browner did find such regulation appropriate

“Major Reductions in Toxics, Metals Seen from Controls on Incinerators, EPA Says,”

Daily Environment Report, June 25, 2002, p. A-3.

In the TRI database, electric utilities accounted for 60.6% of total air emissions of

mercury and mercury compounds in 2001. The database somewhat overstates the utility

share of the total because it excludes waste incineration and all sources that emit less than

10 pounds of mercury.

U.S. EPA, Office of Air Quality Planning and Standards, Study of Hazardous Air

Pollutant Emissions from Electric Utility Steam Generating Units – Final Report to

Congress, February 1998, 2 volumes,

available

[http://www.epa.gov/ttn/atw/combust/utiltox/utoxpg.html#TEC] and U.S. EPA, OAQPS and

(continued...)

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and necessary, and issued a formal finding to that effect in December 2000.13 The

finding set in motion the development of MACT standards. The standards were to

be proposed by December 15, 2003 (a deadline EPA met). A final MACT rule must

be signed by March 15, 2005, with compliance for existing facilities required three

years after promulgation.14

Section 112 defines MACT for new facilities as an emission standard no less

stringent than what is achieved in practice by the best controlled similar source (i.e.,

the best demonstrated technology). For existing facilities, it allows a somewhat less

stringent standard, setting the average emissions of the best performing 12% of units

in the category as a minimum, but giving EPA discretion to set a more stringent

standard. While there is considerable disagreement regarding the level of emissions

reduction being achieved (a point discussed below on p. 9, under the heading,

“Should the Standards Be More Stringent?”), at present no U.S. coal-fired power

plants have installed equipment specifically intended to control mercury emissions.

Four full-scale field tests of a technology called “activated carbon injection” (ACI)

have been conducted by the Department of Energy, with emission reductions of 60%

to 90% achieved, depending on the type of coal and type of auxiliary control

equipment utilized.15 ACI has also shown itself capable of reducing mercury

emissions by more than 90% on incinerators and other facilities. Thus, the

technologies appear promising, but the limited number of demonstrations on

operating full-scale coal-fired power plants may give EPA considerable latitude to

choose what will be the MACT standard for the utility sector.

EPA’s December 15 Proposal. In its December 15, 2003 proposal (which

appeared in the Federal Register January 30, 2004), EPA offered two alternative

regulatory approaches to controlling electric utility emissions. In one proposed

approach, regulation of electric utilities under §112(d) of the Clean Air Act is held

to be “appropriate and necessary,” as it was in the Agency’s December 2000

Regulatory Finding, and a MACT standard (which would likely take effect in 2008)

is proposed.

In the other approach, the Agency argues that regulation of electric utilities

under Section 112 is “appropriate,” but is not “necessary” because the Agency could

(...continued)

Office of Research and Development, Mercury Study Report to Congress, December 1997,

8 volumes, available at [http://www.epa.gov/airprogm/oar/mercury.html].

Regulatory Finding on the Emissions of Hazardous Air Pollutants from Electric Utility

Steam Generating Units, 65 Federal Register 79825, December 20, 2000.

These dates are fixed in a modified settlement agreement filed November 17, 1998. The

case is Natural Resources Defense Council, Inc. v. U.S. EPA, No. 92-1415 (D.C. Cir.).

Originally, the deadline for promulgation was December 15, 2004. In late April 2004,

NRDC offered to extend the deadline 90 days in order to allow for additional analysis of

regulatory options. EPA accepted the offer.

See Michael D. Durham, ADA Environmental Solutions, “Results from Four Full-Scale

Field Tests of ACI for Control of Mercury Emissions,” presentation to U.S. EPA’s Utility

M A C T W o r ki n g G r o u p , M a r c h 4 , 2 0 0 3 , p. 29, ava i l a b l e a t

[http://www.epa.gov/ttn/atw/combust/utiltox/adamact.pdf]

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use another section of the Clean Air Act to control the emissions. In this alternative,

it proposes to amend its December 2000 Regulatory Finding, freeing itself from the

requirement to impose MACT standards. Instead, it would use a less prescriptive

approach to regulation known as “cap and trade,” under Section 111 of the act.16 The

legality of this approach is almost certain to be challenged in court. (For a discussion

of the legal issues, see CRS Report RL32203, Legal Analysis and Background on the

EPA’s Proposed Rules for Regulating Mercury Emissions from Electric Utilities.)

The alternative proposal (which EPA prefers) would establish national and state

rather than facility-specific caps on emissions of mercury, and would allow electric

generating facilities to comply either by installing pollution controls or by purchasing

emission credits from other facilities that may have reduced pollution by more than

the required amount. This cap and trade proposal mirrors the approach used to

control emissions of sulfur dioxide (SO2) from power plants under Title IV of the

Clean Air Act (the acid rain program). It also mirrors, in key respects, the

Administration’s proposed mercury control program under its Clear Skies bill (S. 485

/ H.R. 999, and more closely, a revised version of the bill introduced by Senator

Inhofe, S. 1844).17 States would be free to establish more stringent standards for new

or existing units than are required under the proposal.

New facilities, in addition to existing facilities, would be covered under the

mercury cap and would be required to purchase allowances equivalent to their

emissions. The Agency notes that this is an advantage of the cap and trade approach:

the total amount of allowed emissions will not increase, even if there is a substantial

increase in coal-fired capacity. Under a MACT standard (which is specific to

individual plants), if coal-fired capacity increases, total emissions would increase

proportionately. DOE projects a 26% increase in coal consumption by 2020. If this

occurs without a further strengthening of the standards, MACT would permit

emissions of 43 tons of mercury in 2020.

Section 111(d), on which the Agency is relying for the cap and trade proposal’s

legislative authority, has rarely been used until now, and has never been used to

regulate a hazardous air pollutant listed under Section 112. EPA staff say that it has

previously been used to regulate sulfur emissions from pulp and paper mills and

Neither Section 111 nor Section 112 actually mention cap and trade programs. Section

111 requires “standards of performance,” defined as a standard that “reflects the degree of

emission limitation achievable through the application of the best system of emission

reduction [emphasis added] which ... the Administrator determines has been adequately

demonstrated.” EPA argues that this language would allow a cap and trade system. Section

112(d) also uses broad language, referring to “measures, processes, methods, systems, or

techniques,” but in elaborating on this definition for nearly a page, the statute provides

numerous examples and specifics, without once mentioning cap and trade systems.

Arguably that makes it more difficult to use its language to justify a cap and trade approach.

Clear Skies’ cap and trade proposal is also mirrored in another regulatory proposal

published in the Federal Register the same day as the mercury proposal, the Interstate Air

Quality Rule, leading some to conclude that the Agency intends to implement major

elements of Clear Skies through regulation if it cannot do so through legislation. For further

information, see CRS Report RL32273, Air Quality: EPA's Proposed Interstate Air Quality

Rule.

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fluoride emissions from aluminum smelters, neither of which are controlled

elsewhere in the act. While it is potentially more flexible, the initial deadline for

implementation by existing sources is two years later than under MACT, and,

because of the paucity of nondiscretionary deadlines in Section 111(d), court

challenges to Agency action (or inaction) may also take longer than under Section

112. On the other hand, the Section 111(d) proposal would establish a second phase

of regulation, with more stringent requirements; any more stringent standards under

Section 112 would require a new rule-making, a less certain prospect.

What the Standards Would Achieve. If implemented as proposed, the

MACT standards for coal-fired power plants would result in emissions of 34 tons of

mercury annually, a reduction of 29% from the 1999 level. This estimate somewhat

overstates the impact of the proposed regulation, because emissions of mercury from

electric utilities are declining even in the absence of MACT.

Two factors are contributing to this decline. First, pollution controls for sulfur

dioxide and nitrogen oxides required under other sections of the Clean Air Act have

reduced mercury emissions over the last decade. EPA expects this trend to continue.

Under its proposed Interstate Air Quality Rule, projected mercury emissions would

decrease to 34 tons by 2010 without any controls specifically designed to reduce

mercury emissions being imposed.18

Second, state standards are beginning to target mercury from power plants. At

least five states (Connecticut, Massachusetts, Wisconsin, North Carolina, and New

Jersey) have proposed or promulgated standards that will reduce mercury emissions

from power plants by 60% to 95%. Other states are expected to follow suit,

particularly if EPA’s national standards do not impose what the states consider

sufficiently stringent requirements.

The cap and trade program that EPA is proposing under Section 111 would

require more stringent controls, but not until 2018. The proposal would be

implemented in two phases. The first phase, effective in 2010 would impose a cap,

the amount of which is yet to be determined. Early drafts of the regulation set this

cap at 34 tons, but the proposal discusses several possibilities and asks for comments

on what the level should be. The second phase would set a 15 ton cap in 2018 (a

69% reduction from 1999 levels).

Under the cap and trade proposal, existing sources would earn credits for

emission reductions achieved prior to the effective dates, which means that some

reductions would likely be achieved sooner than required. To the extent that early

reductions happen, however, some of the credits they generate may be used in lieu

of reductions required at later dates. This would delay the date on which full

compliance would be achieved.

U.S. EPA, Proposed National Emission Standards for Hazardous Air Pollutants; and,

in the Alternative, Proposed Standards of Performance for New and Existing Stationary

Sources: Electric Utility Steam Generating Units (hereafter, the Mercury Proposal),

Preamble, Table 9, 69 Federal Register 4712, January 30, 2004.

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Residual Risks. The MACT proposal does not have a second phase, but if

MACT standards are promulgated, Section 112(f) of the act would require the

Administrator to consider imposing “residual risk” standards. Under Section 112(f),

the Administrator must promulgate such standards eight years after the promulgation

of MACT (December 2012, in this case) if they “are required in order to provide an

ample margin of safety to protect public health ... or to prevent ... an adverse

environmental effect.” To date, EPA has not used this authority for any category of

sources, however.

Costs and Benefits.

EPA estimates the annualized cost of compliance

with the 34-ton electric utility MACT at $945 million. Adding in additional costs to

consumers of affected products raises the annual “social costs” to an estimated $1.6

billion. Quantifiable benefits are estimated at more than $15 billion annually (about

16 times the compliance cost, or more than 9 times the social costs).

The quantified benefits all result from the controls’ effect on emissions of fine

particulates (PM2.5), which are a cobenefit of the mercury controls, rather than the

effects of controlling mercury itself. The reductions in PM2.5 would avoid 2,200

premature deaths annually, 2,900 non-fatal heart attacks, thousands of hospital and

emergency room visits, and millions of work loss and restricted activity days,

according to EPA.19

EPA’s analysis lists 11 health and welfare benefits of controlling mercury itself

(i.e., effects separate from those attributable to the side effects from reducing PM2.5).

These include reductions in neurological disorders, learning disabilities, and

developmental delays; impacts on birds and mammals, such as reproductive effects;

impacts on commercial, subsistence, and recreational fishing; and reduced “existence

values” for currently healthy ecosystems. It also lists as potential mercury control

benefits reductions in cardiovascular effects, altered blood pressure regulation, and

reproductive effects in humans. None of these benefits are quantified, but the

Agency believes that they “are large enough to justify substantial investment in Hg

emission reductions.”20

EPA does not estimate the costs of compliance with the Section 111 proposal,21

but one may presume, given the Agency’s intention to set the 2010 standard to

“reflect the level of emissions resulting from the co-benefits of controlling SO2 and

Ibid., Section V. F., p. 4710.

Ibid., pp. 4711, 4708.

Table 8, on p. 4712 of the proposal preamble, does provide a cost estimate of Section 111

plus the Interstate Air Quality Rule combined, but there is no separate estimate for §111.

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NOx”22 under its separate Interstate Air Quality Rule,23 that no controls would be

required to specifically address mercury emissions in 2010. In that case, the

incremental cost of controlling mercury would be zero under Section 111. No cost

estimates are provided for the 2018 standard under Section 111 either, but the

Agency states that “such controls should not have any significant impact on power

availability, reliability, or pricing. Nor should a 15-ton cap cause any significant shift

in the fuels currently utilized by power plants or in the source of these fuels.”24 (In

fact, the Agency projects that coal production for the electric power sector will

increase 147 million tons, or 16%, by 2010.25)

EPA’s analysis of the Interstate Air Quality Rule (IAQR), like its analysis of the

mercury MACT proposal, shows disproportionate costs and benefits. Annual

benefits of the rule are estimated at $58 billion in 2010, with annual social costs of

$3 billion; in 2015, when the IAQR is fully implemented, annual benefits are

estimated at $84 billion versus social costs of $4 billion.26

Should the Standards Be More Stringent? Given these analyses, some

question why the regulations should not be more stringent, or implemented more

quickly. EPA’s response appears to be that the technology required for mercury

control will not be adequately demonstrated until after 2010,27 and that the

technologies for SO2 and NOx, while available now, cannot be implemented at a

faster pace without causing “extremely high” costs and overwhelming the capacity

of equipment suppliers.28

These conclusions are among the issues likely to be questioned in the public

comment period, which has been extended through June. The Agency’s concerns

with regard to the availability and cost of technology appear to be at odds with the

views of a number of experts. For example, a recent paper co-authored by

representatives of two power companies, the Electric Power Research Institute, the

The quote is from Table 9, note 2, p. 4712. The rationale is also discussed in Section IV.

D.2 of the proposal at p. 4698. Another approach would be to assume that Section 111

requires a 34-ton emission limit (as Table 9 implies). In that case, the estimated compliance

cost might be as high as that of MACT, although it would depend on whether the same or

a different subset of facilities are assumed to install controls.

The proposed Interstate Air Quality Rule (IAQR) appeared in the Federal Register on the

same day as the Mercury Proposal (69 Federal Register 4565, January 30, 2004). The IAQR

proposes to reduce power plant emissions of SO2 and NOx in 29 Eastern states about 40%

by 2010 and 70% by 2015. These reductions mirror those that would be required by the

Administration’s Clear Skies bill, but only for Eastern states.

Mercury proposal, Section IV.D.2, p. 4699.

Ibid., Section VI.H., p. 4715.

U.S. EPA, Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone

(Interstate Air Quality Rule); Proposed Rule, Section I.A., 69 Federal Register 4571,

January 30, 2004.

Mercury Proposal, Section IV.D.2., p. 4698.

Ibid.

CRS-10

U.S. Department of Energy, and ADA-ES, a leading consultant on advanced mercury

control technologies concludes:

Recent full-scale field tests have proven the effectiveness of activated

carbon injection for reducing mercury emissions. This technology is

ideally suited for use on existing coal-fired boilers as it provides the

following advantages:

Minimal capital cost of equipment (<$3/kW);

Can be retrofit with little or no downtime of the operating

unit;

Effective for both bituminous and subbituminous coals;

Can achieve 90% removal when used with a fabric filter that has

been designed properly for carbon injection; and

It can be integrated to enhance mercury capture with

virtually every configuration of air pollution control

equipment including ESPs [electrostatic precipitators], fabric

filters, wet and dry scrubbers.29

The Agency also appears not to have incorporated the conclusions of its own

Office of Research and Development (ORD) in determining the level of emissions

control being achieved at the best controlled existing plants. In a white paper posted

on the EPA website March 2, 2004, ORD concluded that fabric filters, a relatively

simple technology that is currently installed on more than 12% of power plants,

achieve a 90% reduction in mercury emissions at bituminous coal plants and a 72%

reduction at subbituminous plants. The addition of a scrubber increased the emission

reduction to 98% at bituminous plants, according to ORD.30

The white paper further stated that, by 2010, activated carbon injection with a

fabric filter “has the potential to achieve 90% Hg reduction” on any rank of coal, and

could be installed within 1-2 years of signing a contract to do so.31 Since the white

paper was written, there have been reports that a European firm, Donau Carbon, has

begun offering commercial guarantees for mercury removal from coal-fired power

plants using ACI technology.32

Michael Durham, et al., “Full-Scale Results of Mercury Control by Injecting Activated

Carbon Upstream of ESPs and Fabric Filters,” paper presented at PowerGen 2003, Las

Vegas, NV, December 9-11, 2003, p. 19.

U.S. EPA, Office of Research and Development, “Control of Mercury Emissions from

Coal-Fired Electric Utility Boilers,” undated, posted March 2, 2004, available at

[http://www.epa.gov/ttn/atw/utility/hgwhitepaperfinal.pdf].

Ibid., pp. 13-15.

Personal communication, U.S. EPA, Office of Air and Radiation, May 21, 2004.

CRS-11

Hot Spots. One of the main criticisms of the cap and trade proposal is that it

would not address “hot spots,” areas where mercury emissions and/or concentrations

in water bodies are greater than elsewhere. EPA has developed data on such hot

spots: Environmental Defense released a report on December 9 based on EPA’s data

that concluded: “At hot spots, local sources within a state commonly account for 50%

to 80% of the mercury deposition.”33

That the local contribution to hot spot concentrations is this high is disputed by

utility sources, particularly for mercury emitted by power plants. Utility

spokespersons argue that much of the mercury emitted by utilities is in the elemental

form, is non-water soluble, and is released from taller stacks. The result, they say,

is that it is less available to fish and disperses over a wider area – with much of it

entering a global mercury cycle.34

The concern over hot spots, and the impetus to address them, were recently

reinforced by a study of mercury contamination in the Everglades. The study found

that concentrations of mercury in fish and wading birds in the area dropped around

75% after Florida imposed stringent controls on incinerators and other local sources

of mercury emissions in the 1990s.35 Backers of strong controls on utility emissions

have cited these results in arguing against a cap and trade approach.

Unless a national cap is so stringent that it requires virtually all facilities to

impose some form of emission control, cap and trade programs do not appear well

designed to address hot spots. They allow facilities to purchase allowances and avoid

any emission controls, if that is the compliance approach that makes the most sense

to a plant’s owners and operators. If plants near hot spots purchase allowances rather

than install controls, the cap and trade system may not have an impact on mercury

concentrations at the most contaminated sites. By contrast, a MACT standard

requires reductions at all plants, and would therefore be expected to improve

conditions at hot spots.

EPA’s response to this is threefold.36 First, it notes that all states would remain

free to establish more stringent controls to address local health-based concerns

separate from the mercury cap-and-trade program requirements. But it goes on to

state that the Agency does not anticipate hot spots, for two reasons. First, the

Agency’s modeling suggests that larger coal-fired units, which have the highest

Environmental Defense, Out of Control and Close to Home, December 2003, p. 12.

See Electric Power Research Institute written statement, as quoted in “Backers of Utility

Rules Expect Florida Study of Effect of Mercury to Affect EPA Decisions,” Bureau of

National Affairs, Daily Environment Report, November 19, 2003, p. A-10. Also, see EPRI’s

press statement, “Power Plants and Mercury,” available at

[http://www.epri.com/corporate/discover_epri/news/HotTopics/env_mercury.pdf].

Florida Department of Environmental Protection, Integrating Atmospheric Mercury

Deposition With Aquatic Cycling in South Florida, revised November 2003, available at

[ftp://ftp.dep.state.fl.us/pub/labs/assessment/mercury/tmdlreport03.pdf]. See especially, pp.

56-59.

Mercury proposal, 69 Federal Register 4702-4703.

CRS-12

“local deposition footprints,” are likely to control emissions more than required and

sell excess allowances achieved through overcompliance to smaller units. Second,

mercury emissions come in several forms. The most difficult to control is elemental

mercury, according to the Agency, and it is the most likely to be transported long

distances from the generating units. Thus, if plants focus on the more easily

controlled forms of mercury, they will control mercury that would more likely be

deposited locally. The Agency requests further comments on its analysis, and raises

the possibility that it could adjust the trading program to favor controls at units in

sensitive areas.37

Effects on Eastern and Western Coal. Whether imposition of controls

on mercury will affect the total amount and/or the types of coal consumed at the

nation’s power plants is another issue raised by critics of EPA’s proposed

regulations. The United Mine Workers of America, for example, in comments to the

EPA Rulemaking Docket, concluded that:

EPA’s proposed mercury MACT standards could be met by a majority of

western subbituminous coals without the need for any emission control

technologies. Eastern bituminous coals, representing roughly one-half of

domestic coal production, would need to meet an average emission

removal rate of 75% .... The MACT proposal is a recipe for massive fuelswitching from eastern to western coals that would disrupt coal-producing

regions throughout the East ....38

The MACT standard, as proposed, would set plant-specific emission limits for

five subcategories of utilities, based on coal rank (i.e., coal type) or technology. The

five subcategories are: bituminous, subbituminous, lignite, integrated coal

gasification combined cycle (IGCC), and coal refuse.39 The standards would apply

to each plant individually. There would be no averaging, banking, or trading of

emission allowances.40 The proposed standards and the number of existing units to

which each applies are summarized in Table 2.

As can be seen in the table, bituminous (largely eastern) coal would have a far

lower emission limit under the proposed MACT standard than would subbituminous

or lignite (largely western) coals. Why? The proposed limits reflect the statutory

minimum requirement for MACT standards, established in Section 112(d) of the

Clean Air Act. This subsection requires that MACT standards be at least as stringent

as the reductions achieved in practice by the best performing 12% of sources (for

Ibid., p. 4701.

Comments of Cecil E. Roberts on behalf of the United Mine Workers of America to EPA

Docket ID No. OAR-2002-0056, April 30, 2004, p. 1.

For a description of these subcategories, see the Mercury proposal at 69 FR 4665-7.

There are two forms of flexibility, however: 1) the standard is expressed as a rolling 12month average, rather than a limit that must be met at all times; and 2) a plant can average

all the units at its location in determining compliance. Both of these factors reduce the

stringency of the standard.

CRS-13

existing sources) or the best single source (for new sources) within the subcategories

EPA chooses for an industry.

The best-performing power plants – whether bituminous, subbituminous or

lignite – are those with scrubbers and fabric filters. These controls were installed

primarily to capture sulfur dioxide, but they have the cobenefit of reducing emissions

Table 2. Mercury Emission Standards Under the

Proposed Utility MACT Rule

(in 10-6 lb/MWh)

Subcategory

Number of

Existing Units

Proposed

Standard

(Existing Units)

Proposed

Standard (New

Units)

Bituminous

701

6.0

Subbituminous

236

Lignite

IGCC

200

Coal refuse

4.1

1.1

Source: U.S. EPA, Mercury Proposal, pp. 4662-3 (standards). RTI International (number of

units). The standards for existing units are also expressed in the proposal on a heat input

basis (i.e., lbs. Hg per trillion Btu). Existing units may comply with either the input or

output-based limit.

of mercury. EPA notes that it is easier for this control equipment to capture mercury

from bituminous plants because of the speciation of the mercury emissions: more of

the mercury is particle-bound or oxidized in emissions from eastern bituminous

plants, and less is in elemental form, as compared to mercury emissions from western

subbituminous and lignite coal plants. Even bituminous plants without scrubbers can

capture high amounts of mercury if they have particulate controls such as fabric

filters (also known as baghouses).

For these reasons, EPA’s proposal sets more stringent limits on emissions from

bituminous plants: as shown in Table 3, the proposed MACT rule’s costs and

reductions in emissions come almost entirely from controls on bituminous units.

According to EPA, all of the net emission reductions occur in the bituminous sector,

and 97% of the rule’s cost is borne by bituminous units.

EPA’s analysis, while differing on the degree of impact, agrees with the United

Mine Workers that the proposed MACT rule would lead to less use of eastern coal

and would increase use of western coal. The Integrated Planning Model, which EPA

uses to assess the impact of proposed regulations on utilities and the coal industry,

divides the coal-producing states into several geographic regions: Appalachian

(including Pennsylvania, Ohio, West Virginia, Eastern Kentucky, Tennessee and

CRS-14

Alabama); Interior (including Illinois, Indiana, and Western Kentucky); and Western

(principally the Rocky Mountain states and North Dakota, including the Powder

River basin). In EPA’s analysis, use of coal from Interior states would be unchanged

as a result of the MACT rule, but Appalachian coal use would decline, while western

coal use would increase. This analysis is summarized below in Table 4.

Table 3. Estimated Emission Reductions and Cost of Proposed

Utility MACT Rule, by Coal Type

Coal Rank*

Tons of Mercury

Reduced

Annual Cost

(in million 1999 $)

Bituminous

15.2

$1,551

Subbituminous

-0.4**

47**

Lignite

-0.1**

2**

Total

14.6

1,600

* Coal types (or ranks) differ in their age, carbon content, heating value, volatile content,

and amount of moisture. Lignite coals, the youngest or lowest rank, have relatively low

heating value and high moisture and volatile content. Bituminous coals have higher heating

value and lower moisture. Subbituminous fall in between.

** Total emissions increase for these subcategories because of an approximately 20%

increase in use of these types of coal. On a per unit basis, however, emissions are subject

to a modest level of control; hence some cost.

Source: U.S. EPA, Clean Air Markets Division, “Economic and Energy Impact Analysis for

the Proposed Utility MACT Rulemaking, January 28, 2004.

Table 4. Estimated Changes in Coal Use from Imposition of the

Proposed Utility MACT Rule, 2000-2010, by Region

(in million tons)

Coal Supply

Region

Year 2000

2010 Base Case

(no MACT Rule)

2010 with MACT

Appalachia

299

315

303

Interior

131

177

Western

475

536

554

National Total

905

1,028

1,034

Source: U.S. EPA Clean Air Markets Division, previously cited.

Surprisingly, EPA did not estimate the effects on coal choice of its cap and trade

proposals. Despite the fact that cap and trade is described by EPA as its preferred

approach to mercury control, there is no economic analysis of that proposal in the

CRS-15

docket. Likewise, EPA did not analyze the impacts of the MACT rule combined

with the Interstate Air Quality Rule, which would control SO2 and NOx emissions

from many of the same utility sources – even though the connections between the

controls for mercury and the other two pollutants stimulated the Agency to

simultaneously propose the MACT and IAQR rules.

Finally, it is important to note that negative impacts on eastern coal are not

inherent in the imposition of mercury controls. Rather, they result from EPA’s

decisions regarding subcategorization of the utility industry and its decision not to

go beyond what it viewed as the statutory minimum requirement for MACT

standards.41

Legislation in the 108th Congress42

Although EPA is proceeding to develop standards for electric utility mercury

emissions under both Sections 111 and 112 of the Clean Air Act, the Administration

has also proposed that Congress amend the act by passing multi-pollutant legislation

for utilities, which it refers to as the “Clear Skies” bill. Clear Skies (H.R. 999 / S.

485) would replace more than half a dozen specific regulatory programs for electric

power plants with a “cap and trade” program for three pollutants: sulfur dioxide

(SO2), nitrogen oxides (NOx), and mercury. Several other mercury bills also have

been introduced. For a comparison of Clear Skies and these bills, see Table 2.43

[On November 10, 2003, Senator Inhofe introduced a variant of the Clear Skies

bill (S. 1844). This bill is also entitled the Clear Skies Act. The Administration

appears to support this revised bill, which contains less stringent mercury

requirements than the original Clear Skies or any of the other bills. The following

discussion uses the term “Clear Skies” for the original bill, but notes key differences

in S. 1844.]

For example, see United Mine Workers of America (UMWA) comments, previously

cited, p. 4. UMWA notes that within the Mercury MACT Working Group, a varied group

of stakeholders that advised the Agency from 2001 to 2003, an industry group that included

all major coal producers and virtually the entire electric utility industry proposed tighter

standards than EPA ultimately chose for the subbituminous and lignite subcategories. Had

the Agency adopted such tighter standards, a major incentive to switch to western coal could

have been eliminated. Similarly, if the standard for the industry as a whole were more

stringent (under either a cap and trade or MACT rule), the incentive to switch to eastern coal

would likely be lessened or eliminated, since users of western coal could not escape the need

to install controls.

This report focuses on mercury emissions to the air and on legislation to address such

emissions. Congress is also considering legislation to reduce the amount of mercury in

products and waste streams. For information on mercury in products and wastes, including

congressional and state actions on the subject, see CRS Report RL31908, Mercury in

Products and Waste: Legislative and Regulatory Activities to Control Mercury.

There were also bills introduced in the 107th Congress. One of these, Sen. Jeffords’ S.

556, which is similar to this Congress’s S. 366, was reported by the Environment and Public

Works Committee (S.Rept. 107-347), but no further action was taken.

CRS-16

Under the Clear Skies bill, the programs that would be replaced include New

Source Review, Prevention of Significant Deterioration, New Source Performance

Standards, the NOx SIP call,44 nonattainment area requirements, Best Available

Retrofit Technology, and the mercury MACT. (For a discussion of these programs’

requirements, see CRS Report RL30878, Electricity Generation and Air Quality:

Multi-Pollutant Strategies, pp. 5-11, 29-35.)

In replacing the mercury MACT requirement, Clear Skies would also eliminate

the current law’s “residual risk” provisions (Section 112(f)), under which EPA is

required to address remaining risks posed to human health and the environment eight

years after the imposition of MACT standards. Residual risk standards are required

to provide “an ample margin of safety to protect public health.” As noted previously,

this program has not yet been implemented for any source of hazardous air pollutants,

but it could lead to more stringent requirements if and when implemented.

Under Clear Skies’ cap and trade program, national or regional limits would be

established for total utility emissions of each of the three pollutants. For mercury,

the bill proposes a national limit of 26 tons of emissions in 2010 (a 50% reduction

from 1994-1995 levels), and 15 tons in 2018 (a 70% reduction).45 The revised bill

introduced by Senator Inhofe, S. 1844, sets the 2010 cap at 34 tons. These amounts

are expected to be attainable for the most part as co-benefits of installing emission

controls for sulfur dioxide and nitrogen oxides: EPA’s analysis concludes that only

about 2% of coal-fired capacity would install mercury-specific controls by 2010, even

with a 26-ton cap.46

Each existing utility would receive “allowances” to emit specific amounts of

mercury, based on their current emission levels. As the national cap becomes more

stringent, the allowances given to each source would be reduced, and increasingly

over time, allowances would be auctioned to the highest bidders. Individual utilities

could comply with the standards either by reducing emissions, by purchasing excess

allowances from other utilities that have reduced emissions more than required, or

by using allowances from previous years that they have “banked” (i.e., not used).

The proposal would allow companies to generate allowances through early

reductions, and bank them for future use. It also assumes that mercury emissions are

a national problem, and that it makes little difference where reductions in emissions

occur, a point that opponents of allowances disagree with, based on concerns over the

The NOx SIP call refers to regulations under which State Implementation Plans in 22

eastern states and the District of Columbia must be revised to control NOx emissions in

order to improve ozone air quality in downwind states.

Some of this reduction has already been achieved. EPA estimates 1999 emissions of

mercury from power plants at 48 tons, a reduction of 7.7% compared to the 1994-995 base.

Since 1999, additional pollution controls have been installed to reduce SO2 and NOx

emissions in response to Phase 2 of the acid rain program and the NOx SIP call, further

reducing mercury emissions as a co-benefit.

U.S. EPA, The Clear Skies Act, Technical Support Package, July 11, 2003, Section G.,

p. 3, available at [http://www.epa.gov/air/clearskies/econ.html]. The analysis states that only

2-6 gigawatts (GW) of generation would install activated carbon injection in 2010 under

Clear Skies. Total coal-fired electric generating capacity is approximately 300 GW.

CRS-17

regional variation in mercury deposition described earlier. The Clear Skies

allowance program is based on the Clean Air Act’s current program for acid

precipitation, which is credited with achieving reductions faster and greater than

required at a small fraction of the projected cost.

Most other legislation would reduce mercury emissions more and faster than

Clear Skies. Under Senator Jeffords’ S. 366, for example, utility mercury emissions

would be reduced to a total of 5 tons (i.e., greater than 90%) by 2008. Senator

Leahy’s S. 484 and Representative Waxman’s H.R. 2042 would set comparable

requirements, a reduction of at least 90% from 1999 levels within three-and-a-half

years of the bill’s enactment (Leahy) or January 1, 2009 (Waxman). Under the

Jeffords, Leahy, and Waxman bills, there would be no allowance trading and banking

programs for mercury. Senator Leahy’s bill also would set stringent standards for

commercial and industrial boilers, chlor-alkali plants and Portland cement plants, and

would require the separation of mercury-containing items from solid waste. The

Leahy, Jeffords, and Waxman bills would also require EPA to ensure that mercury

captured by emission controls is not re-released into the environment.

Senator Carper’s S. 843 and its House counterpart, Representative Bass’s H.R.

3093, present a middle ground between Clear Skies and the Jeffords, Leahy, and

Waxman bills. Like Clear Skies, the Carper/Bass bill focuses only on coal-fired

electric generating units, and it would establish a tradeable allowance program to

ease compliance. But it would mandate sharper reductions sooner than the

Administration bill – an 80% reduction in mercury emissions by 2013.

Under Representative Sweeney’s H.R. 203, the Clean Air Act’s existing

provisions for mercury are essentially restated, with EPA to promulgate regulations

for utility mercury emissions by December 15, 2004.

Conclusion

High concentrations of mercury in aquatic environments, and the resulting

advisories to limit consumption of fish in order to protect human health, have

focused attention on the role of mercury emissions from a variety of sources. Among

the principal sources of mercury emissions, coal-fired power plants are the largest

source and are the last category for which regulations have been proposed. Under a

consent agreement, however, EPA agreed to propose regulations controlling mercury

emissions from this category by December 15, 2003 (a deadline it met), with

promulgation one year later. The Agency is considering several options regarding

the form of these regulations.

While moving forward with the development of these regulations, EPA is, at the

same time, asking Congress to eliminate the regulatory requirement in favor of a

statutory cap and trade program for mercury and two other pollutants, through its

Clear Skies bill. EPA has maintained that enacting Clear Skies will reduce mercury

emissions with greater certainty and sooner than would the existing regulatory

authority. The statement assumes that litigation will delay the implementation of

MACT standards by three or more years, and that legislation will be enacted sooner,

not later. It also assumes that we would start to see the benefits “immediately upon

CRS-18

passage of the legislation,” presumably because companies would have an interest

in banking credits for use or sale at a later date.47

Others in Congress have proposed legislation that would reduce mercury

emissions from power plants to a greater degree and faster than Clear Skies. If

swiftness and certainty are the main selling points of a legislative approach, Clear

Skies is not the only available solution.

On the other hand, if the goal is to minimize cost by relying on co-benefits from

the control of other pollutants, Clear Skies (or its regulatory cousins, the Interstate

Air Quality Rule and the Section 111 mercury proposal) may be the preferred

alternative. Emission controls designed to capture other pollutants have the effect

of reducing mercury emissions. EPA notes, for example, that existing controls for

sulfur dioxide and nitrogen oxides had already reduced mercury emissions from

power plants by about one-third as of 1999.48 The Administration’s Clear Skies bill

and its Section 111 proposal rely almost entirely on such co-benefits to achieve their

mercury reductions: 2% or less of coal-fired electric capacity would need to install

equipment specifically designed to reduce mercury by 2010 to achieve the reductions

in mercury emissions required by the Clear Skies bill in its first phase. The 2018

(Phase 2) requirements also rely almost entirely on co-benefits to achieve the

required 70% reduction in emissions, according to EPA’s analysis.49

This situation raises equity concerns: other combustion sources (municipal

waste combustors and medical waste incinerators) have been required to reduce

emissions more than 90% under existing Clean Air Act authority, with considerably

shorter deadlines than those in Clear Skies or the Section 111 proposal. Since similar

technologies could be applied to coal-fired power plants, the absence of a

requirement to do so is a notable feature of the Administration’s legislative and

regulatory approaches. Also notable is the elimination of any future residual risk

regulations, which remain a possibility for other sources of mercury.

With the 1990 Clean Air Act amendments, however, Congress determined that

electric utilities would be treated differently from other sources of hazardous air

pollutants. The amendments required that EPA report to Congress before

determining whether regulating utility emissions of these pollutants was appropriate

and necessary. The special treatment for electric power producers was motivated by

a number of factors, including a desire to preserve the use of coal as an energy

Statement of EPA Administrator Christine Todd Whitman, Fiscal Year 2004 Budget of

the Environmental Protection Agency, Hearing, Senate Environment and Public Works

Committee, February 26, 2003.

Ellen S. Brown, Office of Air and Radiation, U.S. EPA, “Overview of the Utility MACT

Development and Issues,” presentation to the Environmental and Energy Study Institute,

March 7, 2003, p. 3.

See ICF Consulting, “Updated Financial Impact Analysis of a Multi-Pollutant Emissions

Policy,” 2003 Update, November 20, 2003, p. 7, available at

[http://www.epa.gov/air/clearskies/pdfs/yag1975-20031120.pdf]. The analysis concludes

that only 1% of utility coal-fired capacity would install mercury-specific controls under a

three-pollutant program such as Clear Skies.

CRS-19

option, for both economic and energy security reasons. Whether these concerns

continue to justify more lenient treatment of the utility sector, or whether

environmental and equity concerns outweigh them, will be at the core of

congressional debate over mercury issues.

CRS-20

Table 5. Comparison of Mercury Emission Legislation

Provisions

H.R. 203

(Sweeney)

H.R. 999/S. 485

(Barton/Inhofe, by

request)

(Administration’s

Clear Skies bill)

H.R. 2042

(Waxman)

S. 366

(Jeffords)

S. 484

(Leahy)

S. 843/

H.R. 3093

(Carper/

Bass)

S. 1844

(Inhofe)

Pollutants

covered

mercury, SO2,

NOx

mercury, SO2, NOx

mercury,

SO2, NOx,

and CO2

mercury,

SO2, NOx,

and CO2

mercury

mercury,

SO2, NOx,

and CO2

mercury,

SO2, NOx

Affected

electric

generating

units

electric utility

sources (not

further defined)

existing coal-fired

electric generating

facilities 25 MW or

greater and new

coal-fired units of

all sizes

electric

generating

facilities 15

MW or

greater

coal-fired

electric

generating

facilities 15

MW or

greater

fossil fueled utility

steam generating

units

coal-fired

electric

generating

facilities 25

MW or

greater

same as

Clear

Skies

Mercury

emissions

cap

EPA to

promulgate

regulations by

December 15,

2004

26 tons in 2010; 15

tons in 2018

4.8 tons by

2009 (90%

reduction

from 1999

levels)

5 tons by

2008

about 5 tons (at

least 90%

reduction from

1999 levels ) three

and a half years

after enactment

24 tons by

2009; 10

tons by

2013

34 tons in

2010; 15

tons in

2018

Trading

provisions

no trading for

mercury

tradeable allowance

system

no trading

for mercury

no trading

for mercury,

but allows

plantwide

averaging

no trading for

mercury, but

allows plantwide

averaging

tradeable

allowance

system

tradeable

allowance

system

CRS-21

Provisions

H.R. 203

(Sweeney)

H.R. 999/S. 485

(Barton/Inhofe, by

request)

(Administration’s

Clear Skies bill)

H.R. 2042

(Waxman)

S. 366

(Jeffords)

S. 484

(Leahy)

S. 843/

H.R. 3093

(Carper/

Bass)

S. 1844

(Inhofe)

Residual

risk

not addressed;

thus, current

Section 112

authority is

retained, allowing

EPA to set more

stringent

standards to

address any

residual risk in

December 2012

coal-fired electric

generating facilities

would be exempt

from MACT and

residual risk

requirements for

mercury emissions

current

Section 112

authority is

retained

not

addressed;

thus, current

Section 112

authority is

retained

not addressed;

thus, current

Section 112

authority is

retained

EPA would

be required

to address

residual

risk and if

necessary

promulgate

standards

eight years

after

enactment

same as

Clear

Skies

Penalties for

noncompliance

not specified;

Clean Air Act

enforcement

provisions would

apply

penalty equals the

clearing price for

emission allowances

plus a one-to-one

offset from future

emission

allocations, if paid

within 30 days;

otherwise the

penalty is 3 times

the clearing price

plus offsets

not

specified;

Clean Air

Act

enforcement

provisions

would apply

three times

the average

mercury

control cost

per gram of

excess

emissions

not specified;

Clean Air Act

enforcement

provisions would

apply

$10,000 per

pound

(adjusted

for

inflation)

plus onefor-one

offset from

future

emission

allocations

same as

Clear

Skies

CRS-22

Provisions

H.R. 203

(Sweeney)

H.R. 999/S. 485

(Barton/Inhofe, by

request)

(Administration’s

Clear Skies bill)

H.R. 2042

(Waxman)

S. 366

(Jeffords)

S. 484

(Leahy)

S. 843/

H.R. 3093

(Carper/

Bass)

S. 1844

(Inhofe)

Non-electric

generating

sources

affected?

yes – requires

EPA to

promulgate

regulations

controlling

industrial source

mercury

emissions by

December 15,

2004

not later

than two

years after

enactment,

EPA shall

promulgate

regulations

to ensure

that any

captured or

recovered

mercury is

not rereleased

into the

environment

yes – not

later than

January 1,

2005, the

EPA Administrator

shall promulgate

regulations

to ensure that

any mercury

captured by

emission

controls at an

electric

generating

facility is not

re-released

into the

environment; this

requires

regulations

on disposal

and reuse of

coal

combustion

waste

yes – requires at

least 90% emission reduction for

coal- and oil-fired

commercial and

industrial boilers

and at least 95%

reduction for chloralkali and Portland

cement plants;

EPA to promulgate

rules requiring

separa-tion of

mercurycontaining items

from solid waste

streams; also

requires EPA to

promulgate

regulations to

ensure that any

mercury captured

by emission

controls at an

electric generating

facility is not

re-released into the

environment

no; requires

a report to

Congress

on the use

of captured

recovered

mercury 18

months

after

enactment

CRS-23

Provisions

H.R. 203

(Sweeney)

H.R. 999/S. 485

(Barton/Inhofe, by

request)

(Administration’s

Clear Skies bill)

H.R. 2042

(Waxman)

S. 366

(Jeffords)

S. 484

(Leahy)

S. 843/

H.R. 3093

(Carper/

Bass)

S. 1844

(Inhofe)

Other

requires EPA to

determine by

12/31/11 whether

additional

standards are

necessary to

protect sensitive

ecosystems and, if

so, to promulgate

them by 12/31/13;

does not address

state standards

(under current

law, they may be

more stringent)

allows more

stringent state

standards; also,

EPA, in

consultation with

DOE, is to study

and report to

Congress by July 1,

2009 whether

mercury limits

should be adjusted

based on costbenefit analysis and

the costeffectiveness of

controlling various

sources of mercury

emissions

allows

additional

reductions

if EPA

determines

the

specified

reductions

are not

reasonably

anticipated

to protect

public

health or

welfare;

does not

address

state

standards

(under

current law,

they may be

stringent)

allows more

stringent

state

standards;

ecosystem

protection

provisions

identical to

H.R. 203

allows more

stringent state

standards

allows

stringent

state

standards;

also, not

later than

15 years

after

enactment,

EPA may

revise the

annual

tonnage

limit, after

considering impact

on health,

environment,

economy,

and costs,

with

revised

standards

to take

effect 20

years after

enactment

provides

for

research

and

reports to

Congress

mercury,

but does

not

authorize

stringent

standards

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.