EPA Rolls Back Standards for Mercury Pollution from Coal- and Oil-Fired Power Plants

EPA Rolls Back Standards for Mercury Pollution from Coal- and Oil-Fired Power Plants

EPA Rolls Back Standards for Mercury Pollution from Coal- and Oil-Fired Power Plants

On April 16, 2020, in keeping with its deregulatory agenda, EPA finalized the supplemental cost finding and Risk and Technology review for the Mercury and Air Toxics Standards (MATS), which were finalized in 2012. Put simply, while EPA is downplaying the significance of weakening MATS, there are several ways in which this is incredibly concerning for our health and environment.

First, just a refresher on MATS: the rule was finalized in 2012, and the EPA under the Obama administration found that it was “appropriate and necessary” (also called the “A&N finding”) to tally benefits of reducing mercury pollution and co-benefits of reducing sulfur dioxide, fine particulate matter and other pollutants. The analysis also included benefits to health in dollar amounts. For example, driving down mercury emissions alone would yield a $6 million dollar annual benefit. This was increased to an $80 billon benefit over five years when factoring in gains in avoided heart disease, asthma attacks and other health problems.

Then EPA lost a legal challenge on MATS in 2015, when in Michigan v. EPA, the U.S. Supreme Court found that EPA was also required to consider costs when determining whether it is “appropriate and necessary” to regulate hazardous air pollutants (HAPs), also known as air toxics, from power plants. If you’re interested in reading more about the court challenges to MATS in the past, you can read older blog posts here.

It’s worth noting that the now-bankrupt Murray Energy CEO, Robert Murray, who is also a major fundraiser for President Trump, personally requested that MATS be rolled back in a “wish list” submitted to top Trump officials shortly after Trump took office. So, amid a pandemic, Trump’s EPA decided to deliver on this request.

EPA says all their rollback amounts to is “correcting the previous Administration’s flawed cost finding in the original rule.” They then go on to downplay mercury emissions for the U.S., while at the same time stating that EPA has determined it is not “appropriate and necessary” to regulate HAP emissions from power plants under Section 112 of the Clean Air Act. Under the Residual Risk and Technology Review, EPA found that HAP emissions have been reduced such that residual risk is at acceptable levels, and made no changes to MATS.

What does all of this actually amount to? First, co-benefits are no longer calculated with the abandonment of the A&N finding. Where power plants have already complied with MATS, some might shrug their shoulders. However, as is often the case in this Administration, if you look only at the smoke and show, and not behind the curtain, you might miss the real problem. The real issue here is that by abandoning the “appropriate and necessary” finding for MATS, the door has been open for the fossil fuel industry to justify no or very weak regulations for any pollutant because it is “too costly.”

Finally, since MATS became final, it drastically reduced mercury and other air toxics, which are linked to respiratory issues, heart disease and cancer. MATS is credited with saving as many as 11,000 lives a year. During a health crisis (a PANDEMIC), especially where heart disease and respiratory issues are co-morbidities for COVID-19, and exposure to air pollution also increases risk of death from COVID-19, it is unconscionable that EPA would weaken MATS and abandon the A&N finding.

COVID-19: Air pollution reductions?

COVID-19: Air pollution reductions?

COVID-19: Air pollution reductions?

I think many of us are looking for a silver lining right now; many are looking for a calm amidst the storm (side note, this video from a doctor working with only COVID-19 patients in New York City is the best thing I have seen since this started. It’s logical, measured and hopeful. I encourage everyone to watch).

This might be why almost every friend or family member has sent to me articles about how air pollution has been reduced worldwide. I, of course, reply that this is a good thing. This is certainly a silver lining. However, I also use this opportunity to remind that a lot of the reduction is for mobile sources of air pollution. That’s not to say the reduction is insignificant, but I knew it was an important distinction to make.

Because I knew this was coming. Yesterday EPA announced the “Enforcement Discretion Policy for COVID-19 Pandemic.” This policy allows power plants, factories and other facilities to determine for themselves if they are able to meet legal requirements on reporting air and water pollution. The Policy asks companies to “act responsibly” if they cannot currently comply with rules that require them to monitor or report the release of hazardous air pollution. Businesses, it said, should “minimize the effects and duration of any noncompliance” and keep records to report to the agency how Covid-19 restrictions prevented them from meeting pollution rules.

Almost as concerning as the Policy itself is the fact that its duration is indefinite, and merely refers to “after this policy is no longer in effect, EPA expects full compliance.” The million dollar question for everyone these days is “when can my life go back to normal?” I have seen anything from President Trump saying by Easter to epidemiologists and doctors cautioning this “new normal” might have to last until we have a vaccine, which is at least a year from now. So all we know is that EPA could be allowing power plants, refineries and other polluters to “act responsibly” until Easter, or have a field day for a year or more.

Not only will EPA not take civil enforcement actions during this undefined time, but polluting industries can also skip out on monitoring. Without sufficient monitoring and recordkeeping, citizens and groups like Gasp are hamstrung in their ability to hold agencies and industry accountable.

EPA even goes so far as to defer to the states on enforcement. This is especially concerning in a place like Jefferson County, AL. Our regulatory agency for air is the Jefferson County Department of Health. Given the COVID-19 has community spread here, and we have the highest confirmed cases of COVID-19 in the state, I’d say our Department of Health is pretty busy. So if EPA is punting their right to act to JCDH, who is already overwhelmed, I would imagine polluting industries in Jefferson County could have a real field day.

So, to all my friends and family who sent me those articles, I’m still happy we are seeing less pollution from mobile sources. But what EPA did yesterday is what I knew was coming, and tarnishes that silver lining for me.

COVID-19 is a public health crisis. It should not be a field day for polluters. Now, more than ever, the work Gasp does is critical.

COVID-19: How I’m Keeping Myself Sane and Others Safe

COVID-19: How I’m Keeping Myself Sane and Others Safe

COVID-19: How I’m Keeping Myself Sane and Others Safe

I know we all have been hearing about the novel coronavirus (COVID-19) for several months now. What once felt like a distant threat–a mere passing headline occasionally on the nightly news in places faraway–is now all of our reality. For me, life drastically changed almost two weeks ago. Throughout the week of March 9th, I began to feel the imminent threat of the virus more palpably. We officially began working from home on the 13th. My daughter’s last day of school was the same day, and I took what I knew would be my last in person yoga class that same evening. As I laid in savasana, I allowed myself to feel the fear, uncertainty and anger that I had been shoving down all week. I shed a tear for knowing I won’t be practicing in a place I love for some time, for my daughter who won’t be around her friends, for my life as the way I am used to living it. But most of all, I felt deeply for the people who will be forever touched by COVID-19. And part of what I felt is fear for myself and my family, and the hope that we will be spared.

Like everyone, the days since I began social distancing have been long: some bad, some good. Initially I struggled that the most I can do to help others is to stay away from them. I am doing this for my dad, who is extremely at risk. I am doing this for healthcare workers who are on the front lines; social distancing helps flatten the curve and gives them a chance. I am doing this for my friends who are pregnant, my friends who are essential workers and cannot stay home.

Because you should do something, and because it’s the best and right thing to do does not always make it easy. As I have said, I still have bad days. But I am offering to anyone the things that have helped me through the past two weeks, and am offering in the hopes they may help you too.

  1. I got off Facebook. I quickly realized all of the COVID-19 posts were sending me into a panic spiral. I’m not saying I didn’t know the threat without Facebook. But the barrage of information was anxiety inducing for me. I have felt demonstrably better since deleting Facebook a week ago. I have never used Twitter and don’t watch 24/7 news, but I would imagine those could have similar effects. If you’re feeling overwhelmed, I urge you to consider limiting the ways in which you let information about COVID-19 affect you.
  2. Going outside. I am lucky enough to have a big backyard, and a child who would rather never be indoors. Whether we are just sitting on our deck talking, digging through our compost pile for worms, drawing with chalk or going on a walk, being outdoors helps immensely with social distancing. I can’t wait to plant our vegetable garden soon.
  3. Running and a yoga home practice. I generally run about 10-15 miles a week, so by no means am I an avid runner, but it is something I do regularly. I typically run on a treadmill, but have moved all of my runs outdoors, weather permitting. My mood drastically improves, and good cardiac health is tied to long term health benefits. I have also begun a yoga home practice. I am ecstatic that the studio I practice at is now offering some online classes. Physical exercise has always been my best way to combat anxiety.
  4. Limit myself on the information I consume. Somewhat related to 1), I am being very intentional about the information I consume about COVID-19. I have signed up for this newsletter, which offers data and information. For me, reading data itself, without editorializing from the media or commentary from a friend posting on social media helps me be aware without feeling anxious or panicking. I also signed up for alerts through the City of Birmingham and monitoring the Jefferson County Department of Health’s website (sidenote: I have always done this everyday, checking for draft permits that may be posted. While JCDH and Dr. Wilson are doing a phenomenal job addressing COVID-19, I really miss checking the site only for air permits. Sigh). WBHM is also a great resource that I turn on in the morning, if I feel I need some information first thing.
  5. FaceTime and zoom. Whether it’s family, friends, my daughter’s friends, I am FaceTiming someone at least 3 times a day. Gasp staff and interns are regularly meeting via Zoom. While I really miss seeing and spending time with everyone (really intensely missing Sunday park playdates), this helps me feel connected.
  6. Supporting local businesses. The big guys like Amazon are going to reign supreme during this time. And we do need them right now. But we can’t forget our friends who own small businesses, especially locally. I have bought extra Zyrtec (kind of not cool how COVID-19 is intersecting with allergy season) at Crestwood Pharmacy. One of my dear friends owns Rib It Up, and they have a drive through! Villager Yoga is offering online classes and I bought this awesome shirt to support a good cause and to help advocate for social distancing.

I also want to assure you that all of us at Gasp are still working to fulfill our mission. Now, more than ever it is critical to educate the public on the health risks associated with poor air quality, and to address air pollution (because the last thing we need is COVID-19 and air pollution threatening our health). We are all in this together, and I hope some of what I share can help you through social distancing and this scary, uncertain and isolating time.

 

Haley Lewis

Haley Lewis

Staff Attorney

A native of Birmingham, Haley earned her B.A. from George Washington University, J.D. from Cumberland School of Law and a master’s in Public Administration from the University of Alabama at Birmingham. Haley focused her studies at Cumberland on a career in public policy and expanded that focus by obtaining an MPA. Haley began working on statewide policy issues in 2013.

Haley is an active member of the Birmingham community. She is a member of the Junior League of Birmingham and the League of Women Voters. She’s also involved with the Alabama Citizens for Constitutional Reform movement. Haley is an advocate for comprehensive, long-term policies that promote health and equality in Alabama.

Email: [email protected]
Phone: 205.701.4272

Legal and Policy Updates: February 26, 2020

Legal and Policy Updates: February 26, 2020

Legal and Policy Updates: February 26, 2020

Air Permits

Below are air permits up for public comment across the state. If you are interested in learning more, or getting involved, please email me at [email protected] or call me at 205-701-4272.

County*FacilityType of permitDate posted**
LeeCreekwood Resources, LLCMinor Permit (and public hearing scheduled for March 31, 2020 at 6 PM)2/20/2020
ColbertTechnocon International dba Alliance MetalsSynthetic Minor Operating Permit2/13/2020
FranklinTiffin MotorhomesTitle V (major)2/6/2020
WashingtonBay Gas Storage Company, LLCTitle V (major)2/5/2020

 

*Jefferson county air permitting is handled by the Jefferson County Dep’t of Health and the City of Huntsville air permitting is handled by the Huntsville Dep’t of Natural Resources. All other counties are handled by the Alabama Dep’t of Environmental Management.

**For Title V permits, comments are due 30 days from the posted day. For other permits, the comment deadline is 15 days from the posted date. Extensions and public hearings can be requested within those time frames.

State Legislation

You can find an updated 2020 AL Legislative Session Bill Tracking sheet here.

As I mentioned last time, the bills we are most interested in are HB36 and SB57. I blogged about their practical implications last time. Here are the updates on their movement:

  1. HB36: the “drone” bill. I haven’t mentioned yet, but this House bill has a Senate Companion Bill, SB45, and some additions were made to HB36 on the 20th. The effect of these additions, put simply, expands the already broad scope of this bill. Both bills seem on track to sail through committee, and HB36 was just added to the special order calendar for Thursday. If you agree that these bills infringe on First Amendment rights and threaten the ability to gather information to hold polluters accountable, then be sure to fill out this action alert that our friends at the Alabama Rivers Alliance have on their site.
  2. SB57: The Open Records Act bill. There was a public hearing scheduled for the bill on February 25, 2020. However, Sen. Cam Ward told reporter Bryan Lyman that he got “railroaded.” It appears opposition to the bill is coming from municipalities. This makes it even more crucial to voice your support of a more robust Open Records Act for Alabama.

A new bill that we are looking at more closely is SB117 (Companion bill is HB140, which has already moved to the Senate). This bill addresses the type of of “alternative cover materials” that ADEM has approved for use at landfills.  ADEM does not demand that the landfill operator demonstrate that the alternative cover material is as effective in controlling odors, disease vectors, fires, scavenging, and littering as does a minimum of six inches of soil cover.  In fact, many of the approved alternative cover materials are waste products. We believe that SB117 will allow poor alternative cover materials to be approved by ADEM without adequate investigation of their effectiveness.

David Ludder, an experienced environmental attorney who also works with Gasp and other environmental groups, suggests two improvements could be made to SB117.  The first is that ADEM should be required to demand that landfill operators demonstrate that proposed alternative cover materials will be as effective as soil in controlling odors, disease vectors, fires, scavenging, and littering as soil AND that it not be waste materials.  Second, SB117 should be revised to prohibit approval of alternative cover materials where the closest residence is within one mile of the landfill facility boundary.  That distance will significantly ameliorate concerns about offensive odors and disease vectors.

Local Policy/Hearings

A hearing is scheduled at the Alabama Public Service Commission on the Alabama Power gas plant expansion (you can weigh in here to let the PSC know you don’t support this gas expansion) for March 9 starting at 10 AM. The hearing is likely to take several days and may run through March 12.

Hearing Location info: Carl L. Evans Chief Administrative Law Judge Hearing Complex Room 900 of the RSA Union Building 100 North Union Street Montgomery, AL 36130.

Federal Policy

Sponsors of the EJ For All Act plan to introduce the bill tomorrow (Thursday, February 26, 2020). For any of you reading this in D.C., supporters are invited to a press conference from 10:00 A.M. to noon Eastern in the hearing room in Longworth 1334.

The bill has some of the same components as the Booker/Ruiz bill, including a right of action to go to court for violations of Title VI of the Civil Rights Act and agency regulations, amendments to the Clean Water Act and Clean Air Act requiring consideration of cumulative impacts in permitting, and enshrining the requirements of the EJ Executive Order into statutory law.

Initial principles for the bill online for comment, with a draft of the bill that you can see here. There are instructions of how you can get directly involved in this process as well. Be on the lookout for an action alert from Gasp about the EJ for All Act too!

 

Legal and Policy Updates: February 26, 2020

Legal and Policy Updates: February 14, 2020

Legal and Policy Updates: February 14, 2020

Air Permits

Below are air permits up for public comment across the state. If you are interested in learning more, or getting involved, please email me at [email protected] or call me at 205-701-4272.

County*FacilityType of permitDate posted**
ColbertTechnocon International dba Alliance MetalsSynthetic Minor Operating Permit2/13/2020
MarengoWestRock Mill Company, LLCTitle V (major)1/24/2020
WinstonFontaine Trailer CompanyTitle V (major)1/17/2020
FranklinTiffin MotorhomesTitle V (major)2/6/2020
WashingtonBay Gas Storage Company, LLCTitle V (major)2/5/2020

 

*Jefferson county air permitting is handled by the Jefferson County Dep’t of Health and the City of Huntsville air permitting is handled by the Huntsville Dep’t of Natural Resources. All other counties are handled by the Alabama Dep’t of Environmental Management.

**For Title V permits, comments are due 30 days from the posted day. For other permits, the comment deadline is 15 days from the posted date. Extensions and public hearings can be requested within those time frames.

State Legislation

You can find an updated 2020 AL Legislative Session Bill Tracking sheet here.

So far, the bills we are most interested in are HB36 and SB57, but I’m sure more will come. There hasn’t been movement on either of these this week, but we wanted to go a little deeper into the practical implications of both.

HB36 would amend existing state law to create new criminal penalties for conduct that may arise in the course of peaceful protests and civil disobedience near oil or gas pipelines and other infrastructure facilities. Alabama law already criminalizes trespass onto “critical infrastructure” (Alabama Code, Section 13A-7-4.3). The bill would expand the definition of “critical infrastructure” to include pipelines, and create a new felony offense for damaging or interfering with critical infrastructure while trespassing. It would also newly prohibit the operation of drones over critical infrastructure. Finally, the bill may have implications for organizations involved in protest activity. HB36 also expands criminal trespass to include drone operation. The creation of this new offense could have chilling implications for protesters as well as journalists.

This week, AL.com columnist Kyle Whitmire wrote about the sad state of affairs of the public’s ability to get public records, and mentioned several times Gasp’s issues in getting public records from various entities in Alabama. Sen. Ward’s SB57 still has not moved since it was introduced last week.

Local Policy

You have the opportunity to talk to elected officials and help weigh in on policies you want to see at these upcoming events: