Cent4dent Blog

EPA Loses Federal Court Battle Over Mercury
12 Feb 2008

The Environmental Protection agency must require power plants, the leading source of mercury pollution in the U.S, to better control their emissions of the dangerous toxin, a federal court ruled today. The D.C. Court of Appeals ruled that EPA violated the Clean Air Act when it removed oil and coal fired power plants from the list of sources that are subject to the Act’s most stringent air pollution controls. The agency must now develop tougher standards to control mercury and other toxic pollutants from new and existing power plants.

“Today’s decision is a huge victory as it requires EPA to get back to the business of protecting people’s health rather than higher profits for electric utilities,” said John Suttles, attorney with the Southern Environmental Law Center. “As a result of this ruling, EPA will have to go back to the drawing board and follow the Clean Air Act and the advice of the nation’s leading health experts to adequately protect the public from this harmful neurotoxin.” SELC represents the American Academy of Pediatrics, the American Public Health Association, the American Nurses Association and Physicians for Social Responsibility in the legal challenge. These leading public health groups, which represent more than 300,000 doctors, nurses, medical researchers and healthcare professionals, joined 14 state attorneys general, a dozen national environmental organizations and several Indian tribes in the case.

Power plants are major sources of mercury, arsenic, lead, other heavy metals, and dioxins. Because these toxic pollutants are all classified as “hazardous,” the Clean Air Act requires EPA to identify their sources and develop the most stringent standards to control emissions from those sources. The court ruled today that EPA erred when it took power plants off the list of hazardous pollution sources when issuing its Clean Air Mercury Rule. EPA now has two years to develop mercury emissions standards for existing plants.

More immediately, the ruling will have a significant effect on the nation’s approximately 100 proposed new coal-fired power plants. According to the ruling, new plants must determine on a case-by-case basis how to control mercury pollution at least as well as the best-controlled similar source. This could result in as much as a 95 percent or greater reduction in coal fired power plants.

Released in May 2005, the EPA’s Clean Air Mercury Rule exempted power plants from the most stringent Clean Air Act requirements to control mercury and instead instituted a flawed “cap and trade” scheme, which allows facilities to trade mercury pollution credits with other less-polluting power plants. Under its plan, the EPA projects that U.S. power plants will continue to emit nearly 20 tons of mercury into the air every year through 2025 or later. Conversely, Clean Air Act requirements would rid the nation of 90 percent of mercury emissions within two years.

“The mercury emitted by our nation’s coal-fired power plants poses serious health risks for all Americans,” said Georges C. Benjamin, MD, FACP, FACEP (E), executive director of American Public Health Association. “Congress and now the courts are recognizing the need for stronger environmental protections to safeguard human health. We call upon the EPA to uphold the intent of Clean Air Act and work to eliminate mercury emissions.”

Mercury emissions from power plants are deposited in water bodies, where it is converted to its most toxic form, methylmercury. EPA estimates that as many as than 600,000 children are born each year with unhealthy levels of methylmercury in their bodies. Despite this figure, EPA adopted the flawed mercury rule ignoring the counsel of its own Children’s Health Public Advisory Committee and thousands of health professionals nationwide.

“For pediatricians, who see daily the direct impact dangerous environmental emissions have on children’s health, the D.C. Circuit Court’s decision is an important victory for children, families and communities” said American Academy of Pediatrics’ President Renée R. Jenkins, MD, FAAP. “This decision is a step towards a cleaner, safer environment and improved child health outcomes for today’s children and future generations.”

Methylmercury is a toxic pollutant that is linked to permanent damage to the central nervous system. Developing fetuses, breast-fed infants and children exposed to methylmercury are at risk for lowered intelligence and learning disabilities. Adults exposed to even low amounts of methylmercury also may be at higher risk for altered sensation, impaired hearing and vision, and motor disturbances linked directly to exposure from eating contaminated fish.

“ANA applauds this decision as a victory for the environment, and for those of us in health care who see and treat the devastating effects of mercury exposure,” said ANA President Rebecca M. Patton, MSN, RN, CNOR. “Florence Nightingale cited a healthy environment as one of the key components to quality nursing care, which is why ANA will continue to work toward eliminating mercury in the workplace, and the environment. The nursing profession has daily contact with women, children, and families who are affected by mercury exposure; obstetric nurses teaching expectant mothers about good nutrition and how to protect themselves from environmental threats for the sake of their babies, school nurses seeing more and more children with learning disabilities. As caregivers, we understand the vital need to protect our air, water, and food.”

Founded in 1872, the APHA is the oldest, largest and most diverse organization of public health professionals in the world. The association aims to protect all Americans and their communities from preventable, serious health threats and strives to assure community-based health promotion and disease prevention activities and preventive health services are universally accessible in the United States. APHA represents a broad array of health providers, educators, environmentalists, policy-makers and health officials at all levels working both within and outside governmental organizations and educational institutions.

http://www.apha.org

Posted on Wed, Feb. 13, 2008

Families of children who attended a center that was tainted by mercury are seeking medical monitoring.
By Jan Hefler

Inquirer Staff Writer

The families of children who attended a mercury-tainted day-care center in Franklinville may pursue their claims in a class-action lawsuit, under a ruling by Superior Court Judge James Rafferty.
The lawsuit seeks medical monitoring to determine whether the children might need treatment following their exposure at the now-closed Kiddie Kollege, located in a building that once housed a mercury-thermometer factory.

“Mercury goes dormant in the body and can show up six months to six years later,” said Tina Toy, whose 2-year-old daughter attended the day-care in Franklin Township. “The parents have always wanted medical monitoring, not money.”

Several parents also have filed lawsuits seeking monetary damages.

An estimated 100 children – some as young as 8 months – attended Kiddie Kollege before it was shut down in July 2006. Initial tests in the building found mercury vapors about 27 times acceptable limits. A new report shows the level to have been much higher.

The state Department of Environmental Protection first found the building to be contaminated in 1995, when it housed Accutherm Inc., the thermometer factory. The DEP ordered the property cleaned up, but Accutherm declared bankruptcy a month later and abandoned it.

Franklinville real estate broker Jim Sullivan III later acquired the building in a tax foreclosure and rented it to the day-care operators. Sullivan has said that he thought the cleanup had taken place.

State Health Department workers took urine samples from the children at the facility, at Delsea Drive and Station Avenue, and found that the mercury had been excreted. Parents were told that their sons and daughters should not suffer short- or long-term effects, though many remained unconvinced.

“There is a lot of study on whether mercury has an impact on child development,” said Joseph A. Osefchen, an associate of Philip S. Fuoco, who initially filed the lawsuit.

Another class-action lawsuit seeks medical monitoring for Kiddie Kollege employees as well as families of children in the day-care, who believe they could have become contaminated by beads of mercury carried home in blankets.

The suits, which are being combined, ask the judge to order medical-monitoring costs to be paid by Philip Giuliani, who owned Accutherm Inc.; Jim Sullivan Inc.; Gloucester County; Franklin Township; the DEP; and others.

Joel Korin who represents Jim Sullivan Inc., said: “We don’t think there’s any need for additional monitoring. . . . Our position is that the kids are all back to normal levels.”

Attorneys for the other named agencies could not be reached. They were included in the lawsuit because the plaintiffs allege they were aware of the contamination and failed to enforce a cleanup.

Gloucester County Times
Monday, February 11, 2008
By Stephanie Brown
sbrown@sjnewsco.com

FRANKLIN TWP. Local and state officials say they support the state’s recommendation to demolish Kiddie Kollege as the best way to eliminate mercury contamination at the former day care.

But almost in the same breath they say there are still questions that remain unanswered and maintain that those who attended the mercury-laden day care deserve to have their health continually monitored. The state Department of Environmental Protection released a long-awaited report on Feb. 1 that summarized the results of a year-long investigation into the extent of contamination at the former Accutherm, Inc. site.

The report revealed airborne mercury concentrations greatly exceeded the state’s acceptable standards.

As a result, the state concluded that the building could not be occupied for any purpose in its current state.

The DEP’s report listed two ways to clean up the site: Demolition and removal of the building in its entirety, including the septic tank; or “decontaminate” the building for reoccupation.

The DEP recommended demolition as the “most reliable, permanent and cost-effective way to eliminate the threat of exposure at the site,” according to the report.
The “polluters,” which have been identified by the DEP as Accutherm and the property’s owner, Jim Sullivan, would be responsible for paying for the cleanup, estimated at about $550,000.

A public meeting on the matter is set for Wednesday, 7 p.m., at the Franklin Township Municipal Building.

State Sen. Fred Madden, D-Washington Township, Assemblyman Paul Moriarty, D-Washington Township, and Assemblywoman Sandra Love, D-Gloucester Township, all said they believe the DEP’s recommendation is the best decision for Franklin Township residents.

“The DEP feels that this is the most permanent way to eliminate any threat of exposure of existing mercury to citizens and we will support their recommendation to demolish the site,” the trio of legislators said in a joint statement.
Franklin Mayor Frank Scavelli agreed, but added that he didn’t think the demolition of the building would offer much closure to the families affected by Kiddie Kollege.

“One of the biggest things that I have always advocated for and hope the parents and children will end up getting is long-term preventative and preemptive care,” Scavelli said. “That really has nothing to do with the demolition of the building, but I see that as important to get beyond it.”

Parents themselves have been calling for the state to continue to monitor their children’s health.

The state Department of Health and Senior Services said there is no need to do so. The department tested children and staff for several months, but discontinued it after medical tests taken early last year showed mercury levels had receded to “background level.”

Still, Madden, Moriarty, and Love said they will continue to advocate on behalf of the residents to convince the DHSS that ongoing monitoring is “essential.”
While the DEP’s report revealed the extent of contamination at the site, it is still unknown who is responsible for allowing the day care to open on tainted ground.

The state launched a criminal probe into the matter August 2006, but the investigation, being conducted by the Attorney General’s Office, is ongoing.

District 4 legislators said the attorney’s general’s inquiry “has gone on far too long” and have scheduled a meeting with Attorney General Anne Milgram later this month to “seek answers to this ongoing matter.”

In the meantime, legislators have worked on preventing future incidents, introducing a bill to require the Department of Health and Senior Services to develop testing procedures for new day cares and to set maximum allowable contamination levels for infants and children.

On a local level, the issue has prompted the Franklin Township government to be more attentive to environmental matters. For example, Scavelli said the township hired an environmental consultant and created a new position in the Office of Emergency Management to further keep an eye on contaminated sites.

“You have to make sure the proper things are in place within your own local government, to have checks and balances in place, that ensure this kind of thing doesn’t happen to its residents not depend on outside agencies or other levels of your government to protect your residents,” Scavelli said. “Unfortunately that’s what happened to Franklin Township.”

See my earlier post, after meeting with the parents of these children: click here

Posted on Sat, Feb. 9, 2008
The federal panel said the agency’s exemption of power plants from limits was wrong.
By Sandy Bauers and John Shiffman

Inquirer Staff Writers

In yet another rebuke to the U.S. Environmental Protection Agency, a federal appeals court ruled yesterday that the agency wrongly exempted power plants from strict limits on mercury emissions. It means the agency must develop new rules to fight mercury pollution.

The U.S. Court of Appeals for the District of Columbia Circuit nixed the EPA’s decision to allow a so-called cap-and-trade system, which would have let power plants that fail to meet mercury emissions targets buy “credits” from other plants rather than install more advanced pollution controls.

Although New Jersey and Pennsylvania have stricter limits on power plants than the federal government imposed, officials said the states would benefit from yesterday’s ruling because the EPA will likely have to limit emissions from plants reaching upwind states.

“The winds blow west to east,” and the pollution comes with it, said Daniel Cunningham, a spokesman for Public Service Electric & Gas in New Jersey.

Mercury becomes airborne when coal is burned. Once it falls into waterways, it becomes methylmercury, which is more toxic and works its way through the food chain into fish. It can cause nervous-system damage in a developing fetus and young children.

Many states, including Pennsylvania and New Jersey, have advisories setting limits on how much fish people can safely consume from state waters.

While environmentalists hailed the ruling as a victory for the health of Americans, a leading energy-industry advocate criticized the ruling as doing just the opposite.

“There’s an irony here,” said Scott Segal of the Electric Reliability Council. “What the environmental community has delivered up with this lawsuit is the elimination of our only national air standard for mercury.”

Now, he said, it may take from three to five years for the government to put new mercury-control standards in place.

EPA press secretary Jonathan Shradar said the agency was disappointed by the decision, and was reviewing it to consider what action to take. He said the court’s decision was “procedural” and not a blanket condemnation of cap-and-trade.

In its 18-page ruling, the court said the EPA’s arguments for moving power plants to a different section of the Clean Air Act were “not persuasive.”

“This explanation deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text” of the Clean Air Act, the court said.

The unanimous decision was issued by a three-judge panel, two judges appointed by President Bill Clinton and one by President Bush.

The decision comes on the heels of other challenges to EPA rulings.

In December, Pennsylvania, New Jersey and other states vowed a court battle over the EPA’s decision to block states from requiring stricter controls on auto emissions. Last April, the Supreme Court rejected the EPA’s claim that it did not have the authority to regulate carbon dioxide from vehicles.

Carl Tobias, a law professor at the University of Richmond, said yesterday’s decision sent a clear message. “They said, ‘You have it wrong. You violated congressional intent.’ That’s pretty serious.”

The lawsuit, arguing that the EPA violated the Clean Air Act, was filed by New Jersey and included 14 other states, including Pennsylvania, and various environmental organizations.

According to the Pennsylvania Department of Environmental Protection, the commonwealth is second in the country (behind Texas) for mercury pollution from power plants.

Cap-and-trade is a way to use the market to control pollution. If plants that don’t meet standards don’t want to purchase new equipment, they can purchase credits from others that are below the emissions targets.

In late 2006, Pennsylvania disallowed cap-and-trade and required all power plants to reduce their mercury emissions by 90 percent by 2015.

Critics say the approach is wrong-headed when it comes to mercury, because studies have shown that the greatest deposits of mercury remain in “hot spots” in the immediate area of a power plant.

” . . . You’re not doing anything to help the people who live around that plant,” said Ron Ruman, DEP spokesman.

In 2004, New Jersey adopted rules that required emissions reductions from coal-fired plants starting last year. They are to result in 90 percent reductions overall by the end of 2012.

State Department of Environmental Protection Commissioner Lisa P. Jackson said in a statement that cap-and-trade “simply does not work for emissions of a neurotoxin as dangerous as mercury.”

“This decision is yet another example of the Bush administration’s failure to protect the health and safety of our communities,” said Sen. Frank R. Lautenberg (D., N.J.).

Currently, plants in Pennsylvania and New Jersey are spending billions of dollars to meet the new state standards.

While he opposes stricter state limits, Douglas Biden, president of the Electric Power Generation Association in Harrisburg, said that the federal ruling nevertheless “in part levels the playing field from a competitive perspective.”

Environmentalists say the ruling will force power companies to prove their arguments that coal can be a clean source of power.

Said Alice McKeown, coal analyst for the Sierra Club: “These mercury-pollution reductions will be an important trial run to see if coal is still viable in a cleaner energy future.”

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Contact staff writer Sandy Bauers at 215-854-5147 or sbauers@phillynews.com.
Inquirer staff writer Linda Loyd contributed to this story.