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February 2007

New Jersey Attorney General files brief against EPA rules governing emissions

Trenton, NJ— Attorney General Stuart Rabner announced that, in furtherance of its challenge to Environmental Protection Agency (EPA) rules governing harmful mercury emissions from power plants, New Jersey has filed a brief with a federal appeals court in Washington, DC asking that the existing rules be vacated and that EPA be directed to establish new standards.

Acting as the lead entity of a 16-state coalition legally challenging the EPA’s "cap-and-trade" system for regulating harmful mercury emissions, New Jersey filed a 35-page brief with the United States Court of Appeals for the District of Columbia Circuit.

The brief contends that EPA violated the Clean Air Act by exempting power plants from regulations requiring deep reductions in their emissions of hazardous air pollutants. The coalition asserts that the alternative cap-and-trade regulations EPA developed for power plants - the Clean Air Mercury Rule - will delay meaningful emission reductions of mercury for many years, perpetuating mercury deposition "hot spots" and endangering the health of children. The states contend that creating a cap-and-trade system for regulating a potent neurotoxin like mercury is unprecedented, and does not protect public health.

"Our position, simply put, is that the EPA has failed to meet the mandate of the federal Clean Air Act – that is, the EPA has adopted standards for regulating a harmful neurotoxin that are weak and actually run counter to the intent of the law," said Attorney General Rabner.

The EPA announced in May 2006 that it would move forward with its cap-and-trade system for regulating mercury emissions. New Jersey and the other coalition states subsequently filed a federal court challenge to the rule, as well as a separate rule that removed power plants from the list of pollution sources subject to stringent pollution controls under the Clean Air Act. After more than six months, EPA adopted final rules for mercury emissions that failed to address any of the concerns raised by the states.

Nationwide, coal-fired power plants are the largest source of uncontrolled mercury emissions, generating approximately 48 tons of mercury emissions per year.

According to the participating states, the cap-and-trade system established by EPA’s 2006 regulations allows power plants to avoid the expense of installing stringent pollution controls to reduce mercury emissions. Instead, the states note, power plants can purchase emission reduction "credits" from other plants that reduce emissions below targeted levels. The states contend that this practice allows localized mercury deposition hot spots to develop, and to expand, near plants that choose not to actually reduce emissions.

"The Bush administration is playing a shell game with the health of the residents of New Jersey and other states that are downwind of those coal-burning power plants that are among the biggest emitters of this extremely toxic metal," said Department of Environmental Protection Commissioner Lisa P. Jackson.

"EPA’s cap-and-trade system will allow mercury to fall and collect in regionalized hot spots, contaminating our environment and jeopardizing our health. The nation needs state-of-the-art technological controls, not environmental sleight of hand," Commissioner Jackson added.

EPA finalized its cap-and-trade rule for mercury emissions despite research – funded by the agency itself – that suggested mercury deposition rates from local coal-fired generating plants were many times higher than EPA projections. Conducted in Steubenville, Ohio, the EPA-funded research suggested significant potential for uncontrolled coal-burning plants to perpetuate mercury hot spots.

EPA’s own Inspector General also released a report in 2006 questioning the agency’s conclusion that its new mercury emission rules would not contribute to hot spots.

The federal appeal of the EPA cap-and-trade regulations is being handled for New Jersey by Deputy Attorneys General Christopher Ball and Jung Kim. The coalition challenging the EPA regulations also includes California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, new Hampshire, New Mexico, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin. The City of Baltimore is also part of the coalition.

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