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PUBLIC HEALTH LAW AND POLICY JOURNAL; VOL. 1 (2004)

Trading Lives: Will the United States’ Efforts to Limit Mercury

Emissions have Meaningful Effects on Toxic Level Accumulation of Mercury in the Ocean Ecosystem?

*Angela Maria Anderson

I. INTRODUCTION

For unnumbered centuries of human history the wilderness has given way. The priority of industry has become dogma. Are we as yet sufficiently enlightened to realize that we must now challenge that dogma, or do without our wilderness? Do we realize that industry, which has been our good servant, might make a poor master? Let no man expect that one lone government bureau is able--even tho it be willing--to thrash out this question alone…. Our remnants of wilderness will yield bigger values to the nation's character and health than they will to its pocketbook, and to destroy them will be to admit that the latter are the only values that interest us.1

- Aldo Leopold (1925)

The words of Aldo Leopold, written nearly eighty years ago, ring true now as they did then. This article explores the wilderness area often forgotten or ignored by national environmental protection efforts—the ocean. The consequences of industrial pollution are slowly working into human consciousness as more and more studies reveal the threats pollutants in our oceans are now having on the most innocent: the unborn children.2 Although a wide variety of pollutants are threatening

* 2005 J.D. candidate, University of Hawai`i William S. Richardson School

of Law. 1 ALDO LEOPOLD, ALDO LEOPOLD’S SOUTHWEST 160-61 (David E. Brown

& Neil B. Carmony ed., University of New Mexico Press, 1990) (1925) available at http://gargravarr.ccutexas.edu/chrisj/leopold-quotes. (Last visited August 16, 2004).

2 Thomas Natan, John Staton & Martha Keating, Clear the Air, Toxic Neighbors 10 (2004), available at http://cta.policy.net/reports/toxic_neighbors/toxic_neighbors.pdf (last visited Jul. 25, 2004).

PUBLIC HEALTH LAW AND POLICY JOURNAL; VOL. 1 (2004) 207

permanent degradation of the world’s ocean ecosystem,3 this article focuses on the particular threat of mercury accumulation in the world’s oceans.4

As with many environmental issues, a tragic event must occur before the government has the political will to take action. In the case of mercury poisoning, the events occurred some fifty years ago, yet the lessons have not been learned. For example, “In 1953 in the Minamata area of Japan, 46 persons died and 100 suffered from chronic poisoning.”5 What is now known as Minamata disease consists of symptoms such as numbness, incoordination, loss of vision and hearing, and intellectual deterioration.6 All of these symptoms were later attributed to methyl-mercury exposure through human consumption of fish, which had accumulated mercury from exposure to industrial wastes.7

In 1956, another tragic event occurred this time in Northern Iraq. Over 100 people were poisoned by eating a mix of flour and wheat seed, “[that] had been treated with a fungicide containing 7.7 [percent] ethyl mercury-p-toluene sulfonamide.”8 In addition to the central nervous system disorders, “a number of other clinical symptoms were observed: polydypsia,9 polyuria,10 weight loss, severe proteinuria,11 deep

3 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE,

INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 656 (Robert C. Clark ed., Foundation Press 2002). Ocean pollution consists of land based marine pollution as well as marine based. Id. Land based pollution such as agricultural runoff, urban drainage systems, sewage treatment plants, and industrial air pollution contributes to seventy percent of marine pollution. Id.

4 Suggestions given in this paper may serve as a model for dealing with other persistent biological toxins threatening the world’s oceans.

5 D.A. Handcock, Mercury in Fish, 35 AUSTRALIAN FISHERIES 4, 4 (1976). 6 Id. 7 Id. 8 Case studies of mercury poisoning, at

http://pasture.ecn.purdue.edu/~mercury/src/iraq.html (last visited April 30, 2004).

9 Excessive thirst. 10 Excessive urination. 11 Excess protein in urin e.


musculoskeletal pain refractive to analgesics, and pruritus12 of the palms, soles, and genitals.”13 Some years later yet another poisoning event occurred when flour and wheat seed treated with a fungicide containing 1% ethyl-mercury chloride was offered for human consumption--killing an additional 100 people.14 In 1971, again in Iraq, a fungicide containing mercury was to blame for another 459 deaths and hospitalization for another 6530 people.15 As a result of such instances, the United States’ Food and Drug Administration (“FDA”) banned the mercury containing fungicide and used the data to determine a recommended daily intake of mercury not to exceed the reference dose (“RfD”) of 1 part per million (“ppm”).16 “This RfD was also adopted by the Joint Food and Agriculture Organization/World Health Organization Committee on Food Additives.”17 The Minamata and Iraq events prompted the first national and international regulatory measures to prevent human exposure to mercury.18 For the first time, national and international health authorities were aware of the threats of mercury in the food chain and its deleterious effects on human health.19

Today the issue of mercury contamination is not as direct and simple as the poisoning events of the past. Mercury is entering into the global commons via various routes; one of the most predominant

12 Itching skin. 13 Case studies of mercury poisoning, at

http://pasture.ecn.purdue.edu/~mercury/src/iraq.html (last visited April 30, 2004).

14 Id. 15 Wendy Thomas, Through the Looking Glass: A Reflection on Current

Mercury Regulation, 29 COLUM. J. ENVTL. L. 145, 151 (2004), citing F. Bakir et al., Methyl mercury poisoning in Iraq, 181 SCIENCE 230, 231 (1973).

16 Id., citing L. Tollefson & F. Cordle, Methylmercury in fish: A review of residue levels, fish consumption and regulatory action in the United States, 68 ENVTL. HEALTH PERSP. 203, 208 (1986).

17 Id., citing Joint FAO/WHO Expert Committee on Food Additives, World Health Organization Technical Series No. 505, Evaluation of Certain Food Additives and the Contaminants Mercury, Lead, and Cadmium, at 9 (1972).

18 Id. 19 D.A. Handcock, Mercury in Fish, 35 AUSTRALIAN FISHERIES 4, 4 (1976).


pathways is mercury air emissions from coal-powered plants.20 The effects of mercury accumulation in ocean ecosystems have potentially devastating economic, social, and environmental consequences: 1) children are at risk of serious nervous system disorders due to intake of contaminated fish;21 2) the mercury toxicity in fish has disproportionate effects on subpopulations22 and indigenous communities23; and 3) mercury accumulation threatens every tier of the ocean ecosystem, affecting economic interests in resource stocks and conservation of threatened and endangered species.24 The direct health effects of consumption of mercury-contaminated fish are enough to warrant a drastic change in regulation. This contamination, if not addressed, may “reach a limit that may cause a catastrophic deterioration of all life in the oceans.”25 Scientists have pointed out that, “Where that limit is, how close we are to it, whether or not, as the limit is approached, the ecosystem will show a

20 The Clear Skies Initiative: A Multipollutant approach to the Clean Air Act: Hearing Before the Subcommittee on Energy and Air Quality of the Committee on Energy and Commerce House of Representatives, 108th Cong., First Sess. 23 (2003), available at, http://www.access.gpo.gov/congress/house.

21 America’s Children and the Environment- Mercury in Fish, at http://www.epa.gov/envirohealth/children/emerging_issues/fish.htm (last visited May 8, 2004).

22 ZACHARY CORRIGAN, UNITED STATES PUBLIC INTEREST RESEARCH GROUP, FISHING FOR TROUBLE HOW TOXIC MERCURY CONTAMINATES OUR WATERWAYS AND THREATENS RECREATIONAL FISHING (2003), 3 available at http://www.uspirg.org/reports/fishingfortrouble/fishingfortrouble.pdf (last visited July 24, 2004).

23 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 748 (Robert C Clark ed., Foundation Press 2002).

24 See generally, ZACHARY CORRIGAN, UNITED STATES PUBLIC INTEREST RESEARCH GROUP, FISHING FOR TROUBLE HOW TOXIC MERCURY CONTAMINATES OUR WATERWAYS AND THREATENS RECREATIONAL FISHING (2003), 3 available at http://www.uspirg.org/reports/fishingfortrouble/fishingfortrouble.pdf (last visited July 24, 2004).

25 J. Larry Renrro, Bodil Schmidt-Nielsen, David Miller, Dale Benos, and Jonathan Allen, Methyl Mercury and Inorganic Mercury: Uptake Distribution, and Effect on Osmoregulatory Mechanisms in Fishes, 102 in POLLUTION AND PHYSIOLOGY OF MARINE ORGANISMS (F. John Vernbrg and Winona B. Vernberg ed., 1974).


gradual deterioration or will suddenly deteriorate like the collapse of a house of cards, are all unknown.”26 Mercury accumulation is indicative of many environmental challenges threatening the viability of the world’s resources as well as the viability of life on the planet.27 It is an issue that spans time and national boundaries. For such a crucial issue, a comprehensive response plan is in order and past due. The United States is presently addressing the issue of mercury in the environment, primarily via the Clean Air Act(“CAA”), 42 U.S.C. §§ 7401 - 7671 (q).28 Amendments to the CAA are in their proposal stages and seek to convert the command and control regime to a market based regime, known as the Clear Skies Initiative.29 However, the Clear Skies Initiative is inadequate to curb mercury pollution to the extent necessary to protect human health and the health of the world’s oceans.30 A different approach is necessary to convey the notion that ocean health equals human health.

26 Id. 27 America’s Children and the Environment- Mercury in Fish, at

http://www.epa.gov/envirohealth/children/emerging_issues/fish.htm (last visited May 8, 2004).“Examples of other chemicals that bioaccumulate include dioxins, PCBs, and chlorinated pesticides such as DDT or chlordane.” Id. These chemicals also may pose risks to children. Id.

28 The Clear Skies Initiative: A Multipollutant Approach to the Clean Air Act: Hearing Before the Subcommittee on Energy and Air Quality of the Committee on Energy and Commerce House of Representatives, 108th Cong., First Sess. 23 (2003), available at, http://www.access.gpo.gov/congress/house. According to Jeffery Homestead, assistant administrator U.S. E.P.A., “Power generation remains the largest man-made source of mercury emissions in the United States. In 1999, coal-fired power plants emitted 48 tons of mercury (approximately 37% percent of the man-made total).” Id. In response to the high mercury emissions from the power industry the EPA is finalizing amendments and proposing new rules to regulate mercury. Id.

29 See generally, 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, 69 Fed. Reg. 20, (proposed Jan. 30, 2004).

30 ZACHARY CORRIGAN, UNITED STATES PUBLIC INTEREST RESEARCH GROUP, FISHING FOR TROUBLE HOW TOXIC MERCURY CONTAMINATES OUR WATERWAYS AND THREATENS RECREATIONAL FISHING (2003), 15 at www.uspirg.org/reports/fishingfortrouble/fishingfortrouble/pdf (last visited July 24, 2004).


This paper discusses the importance of requiring producers to internalize the real health and environmental costs of their mode of production and details how U.S. participation in the international dialogue on mercury and other threats to the ocean ecosystem can yield the healthy environment sought after in U.S. environmental policy.31 Part II, discusses the importance of ocean resources, explains the cycle of mercury in the oceans and how oceanic bioaccumulation of mercury threatens human health. Part II, continues by introducing the United States’ regulatory responses to mercury in the environment and the international frameworks that exist. Part III argues that an international response is necessary and compares the competing domestic proposals to control mercury in the environment. The analysis continues by identifying how to fuse the two approaches to create a forward thinking domestic policy and offers alternative management strategies to support the understanding of the interconnectedness of human health and the health of the environment in which we live. The paper concludes by discussing how and why the alternative management regime should be integrated into EPA’s response to mercury in the environment. Lastly, the paper reiterates how the United States can use its influence at the international level by ratifying the United Nations Convention on the Law of the Sea in order to facilitate a global dialogue on mercury accumulation.

II. BACKGROUND

A. Importance of the Ocean Ecosystem

The ocean is the largest and oldest ecosystem on earth. 32 Rather than interpreting the oceans as separate and distinct ecosystems, “in reality the ocean ecosystems are continuous-or rather, a single ecosystem, a world

31 The National Environmental Policy Act (“NEPA”), 42 U.S.C. §4321

(2003), Statement of purpose details the overarching goals of US environmental policy: “[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation….” 42 U.S.C. § 4321 (2003).

32 W. M. Von Zharen, Ocean Ecosystem Stewardship, 23 WM. & MARY ENVLT. L.& POLICY REV. 1, 2-3. citing Leonard Engel, THE SEA 9 (1969).


ocean with land masses as true barriers.”33 The ocean truly is the foundation of life and our “link to life through its control of climate, provision of food and minerals, sequestration of carbon, assimilation of wastes and other irreplaceable services.”34 Covering over seventy percent35 of earth’s surface and providing for ninety percent of the world’s vegetation, the ocean’s value is immeasurable.36 Even the “air [we breathe] is a product of the ocean ecosystem.”37 Fifty percent of the oxygen we breathe is produced by the phytoplankton of the oceans.38 These same organisms are responsible for eighteen billion tons of carbon fixation each year, playing a significant role in regulating the earth’s climate.39 In addition, the ocean sustains humanity via food resources: for example, “seafood is the main source of protein for nearly half of the world’s six billion people.”40 For many years the ocean’s carrying capacity for meeting humanity’s consumptive needs was assumed to be


INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 655 (Robert C Clark ed., Foundation Press 2002), citing, GAIA: AN ATLAS OF PLANET MANAGEMENT 64-93 (Norman Myers ed.,)(1993).

34 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 655 (Robert C Clark ed., Foundation Press 2002).

35 W. M. Von Zharen, Ocean Ecosystem Stewardship, 23 WM. & MARY ENVLT. L.& POLICY REV. 1, 2,(1998) citing Leonard Engel, THE SEA 9 (1969)

36 W. M. Von Zharen, Ocean Ecosystem Stewardship, 23 WM. & MARY ENVLT. L.& POLICY REV. 1, 3(1998), citing Carleton Ray, Ecological Diversity in Coastal Zones and Oceans, in BIODIVERSITY 38-39.

37 Id. 38 Id. at 4, citing Sarah Endo, An Ocean of Resources, SCI WORLD, 14

(1994). 39 W. M. Von Zharen, Ocean Ecosystem Stewardship, 23 WM. & MARY

ENVLT. L.& POLICY REV. 1,4-5. citing Richard H. Wagner, ENVRIONOMENT AND MAN 444 (1971).

40 Id.at 5, citing NATIONAL ROUND TABLE ON THE ENVIRONMENT AND THE ECONOMY, SUSTAINABLE STRATEGIES FOR OCEANS: A CO-MANAGEMENT GUIDE 2(1998).


limitless.41 Today, it is known that the ocean does have limits and some would surmise that such limits have been surpassed.42

B. The Mercury Cycle in the Environment

Mercury is released through natural and industrial processes in water, on land, and in the air.43 “Mercury exists in three forms: elemental mercury, inorganic mercury compounds and organic mercury (primarily methyl mercury).”44 Ecosystem processes transform elemental mercury released into the air through combustion of fuels containing mercury into methyl mercury.45 Methyl mercury is the form of mercury focused on throughout this paper, for in the end, it is what accumulates in the biota.46 With the exception of the metal and coal mining industries and facilities


INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 655 (Robert C Clark ed., Foundation Press 2002).

42 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 655 (Robert C. Clark ed., Foundation Press 2002). The Ocean ecosystem is facing threats from over fishing, ocean dumping (both intentional and unintentional) as well as from Land Based Marine Pollution of which is the primary source of mercury pollution in the Ocean. Id.

43 Thomas Natan, Mercury Rising, a Clear the Air Report, 12 at www.cta.policy.net/reletives/1994.pdf. (last visited July 24, 2004).

44 Id. at 13. 45 Wendy Thomas, Through the Looking Glass: A Reflection on Current

Mercury Regulation, 29 COLUM. J. ENVTL. L. 145, 148 (2004), citing US EPA, OFFICE OF AIR QUALITY PLANNING AND STANDARDS AND OFFICE OF RESEARCH AND DEVELOPMENT, MERCURY STUDY REPORT TO CONGRESS VOL.I: EXECUTIVE SUMMARY. EPA –432/R-97-003, 2-1 (1997). “Elemental mercury [...] is released into the air by the combustion of materials containing mercury such as coal. Once released the elemental mercury either adheres to dust or ash particles and is deposited back on the ground or it remains in the air until it reacts with ozone or other oxidants to form inorganic mercury compounds. In this highly soluble state, it ultimately is redeposit on the earth with precipitation. The inorganic mercury […] reacts with bacteria and is incorporated into sludge […] where it is methylated by microbial or antibiotic processes into methyl mercury (mercury’s most toxic form.” Id.

46 Thomas Natan, Mercury Rising, a Clear the Air Report, 13 at www.cta.policy.net/relatives/19940.pdf. (last visited July 24, 2004).


that manage and dispose of waste, the majority of mercury is released as air emissions.47 The mercury accumulates into the tissues of fish at levels that are “tens to thousands of times greater than the concentration of mercury in the water the fish inhabits.”48 In turn, humans and other species consume the contaminated fish and absorb the mercury into their bodies as well.49 As mercury travels through the food chain, it accumulates in the highest concentrations in predatory fish species such as ahi tuna, albacore tuna, swordfish, tile fish, king mackeral and shark.50 Today, there is broad scientific consensus that air emissions containing mercury are responsible for the contamination of fisheries and subsequent exposure to humans through fish consumption.51 Air borne mercury is a transnational pollution problem because natural forces such as wind and rain spread the mercury far distances from the original emission source.52

The complex global phenomenon of mercury accumulation is indicative of the many environmental challenges facing the international community.53 The ramifications of mercury accumulation in the world’s oceans are being felt today and are of particular concern because those suffering the brunt of the harm are the voiceless: the countless ocean species, human fetuses, and infants.

47 Id. 48 Id. 49 Id. 50 A Local Guide to Eating Fish Safely, Hawaii State Department of Health,

at www.state.hi.us/doh/publichealth/fishsaftey.pdf 51 Thomas Natan, Mercury Rising, a Clear the Air Report, 13 quoting U.S.

EPA. Mercury Study: Report to Congress. Office of Air Planning Quality and Standards and office of Research and Development. EPA –452/R-97-003. at www.cta.policy.net/reletives/1994.pdf. (last visited July 24, 2004).

52 Id. 53 See generally, DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE,

INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 1-12 (Robert C. Clark ed., Foundation Press 2002). Examples such environmental challenges include: global warming and ozone depletion, and species extinction and loss of biodiversity. Id.


C. Warnings and the Risks to Children

As a recent FDA Consumer Advisory warns, “[s]ome fish contain high levels of a form of mercury called methyl-mercury that can harm an unborn child’s developing nervous system.” 54 The warning is somewhat vague55 and does not adequately convey the message that due to our industrial methodology, toxins have, are and will continue to flow into the environment, poisoning ecosystems from phytoplankton to whales.56 In the United States Environmental Protection Agency’s (EPA) Mercury Report, dietary surveys led to the conclusion “that between 1 and 3 percent of women of childbearing age (i.e. between the ages of 15-44) eat sufficient amounts of fish to be at risk from methyl mercury exposure.”57 A subsequent EPA Report entitled “America’s Children and the Environment” found the numbers were substantially higher: “Eight percent of women of child-bearing age have blood mercury concentrations greater than 5.8 parts per billion (equivalent to EPA’s reference dose)58 based on data from the Centers for Disease Control and Prevention.”59 The poisoning events of the 1960’s and 1970’s revealed “neurological

54 FDA: CONSUMER ADVISORY, An important message for pregnant women and women of child bearing age who may become pregnant about risks of mercury in fish, at http://www.cfsan.fda.gov/~dms/admehg.html

55 See generally, California Communities Against Toxics, at http://www.mercurypolicy.org. FDA is facing legal challenges for not following: FDA’s own Food Safety Committee recommendations: Warning specific sensitive populations to limit consumption of canned tuna. Id.

56 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 748-749 (Robert C. Clark ed., Foundation Press 2002). Toxins such as methyl mercury have found to be effective immune suppressors in marine mammals and are the ‘likely culprit’ in mass die-off events of dolphins, whales and seals. Id.

57 EPA, Office of Air and Radiation, Mercury Study Report to Congress: Overview at www.epa.gov/oar/mercover.html.

58 See Generally Kathyn Mahaffey, Office of Prevention, Pesticides and Toxic Substances U.S. Environmental Protection Agency, Development of Mehylmercury Reference Dose, at www.masgc.org /mercury/abs-mahaffey.html. In 2001 the EPA revised its “RfD” for methyl mercury based on a study in the Fahoe lslands which demonstrated elevated concentrations of methyl mercury in cord blood. Id.

59 America’s Children and the Environment, at http://www.epa.gov/envirohealth/children/emerging_issues/fish.htm


problems in children exposed in utero to methyl mercury.60 The methyl mercury accumulating in the mother’s blood via consumption of seafood is passed on through the umbilical cord.61 EPA data from 1999 estimates that “ten percent of adult women of child bearing age had blood mercury levels above a level that US EPA considers protective from adverse effects of methyl mercury on children’s neurological development.”62 Similarly, the Center for Disease Control findings indicate that “eight percent of women of childbearing age in the U.S. have unsafe blood mercury levels, translating into over 300,000 babies born at risk each year.”63

The state of California has taken the risks of methyl-mercury so seriously as to require restaurants and grocery stores to post warnings64 to customers regarding the toxic dangers of consuming fish products.65 The FDA advisory seemingly down plays the role of man made pollution in the accumulation of mercury in our environment. This is contradicted by the EPA’s Mercury Study finding that “what is not uncertain is that additional emissions to air will contribute to levels in the global reservoir.”66 The

60 Kathyn Mahaffey, Office of Prevention, Pesticides and Toxic Substances

U.S. Environmental Protection Agency, Development of Mehylmercury Reference Dose, at www.masgc.org /mercury/abs-mahaffey.html.

61 America’s Children and the Environment, at http://www.epa.gov/envirohealth/children/emerging_issues/fish.html

62 Kathyn Mahaffey, Office of Prevention, Pesticides and Toxic Substances U.S. Environmental Protection Agency, Development of Mehylmercury Reference Dose, at www.masgc.org /mercury/abs-mahaffey.html. In addition, the EPA has found that exposure levels in some geographic areas are significantly higher. Development of Mehylmercury Reference Dose. Id.

63 Mercury Policy Project, at www.mercurypolicy.org. (Last visited July 27, 2004).

64 California Grocers Warn of Mercury in Fish, at http://www.flmnh.ufl.edu/fish/innews/calmerc2003.htm (Last visited August 3, 2004). The language now posted states in part: “WARNING Pregnant and nursing women, women who may become pregnant, and young children should not eat the following fish: SWORDFISH, SHARK, KING MACKERAL, TILE FISH. They should also limit their consumption of other fish including fresh or frozen tuna.“ Id.

65 Id. 66 Mercury Study Report to Congress Overview, at

http://www.epa.gov/oar/mercover.html


Mercury Study conclusions support the link between anthropogenic releases of mercury from industrial and combustion sources in the United States and methyl-mercury bioaccumulation in fish.67 Such studies have prompted amendments to the Clean Air Act to begin to regulate mercury.68 The new amendments currently being proposed are entitled the Clear Skies Initiative, or in the alternative, the Most Achievable Control Technology Standards.69 Although the FDA and EPA are well aware of the toxicity of methyl mercury, the warnings to the public and proposed regulation err on the side of exposure rather than protection.70 Michael Bender, director of the Mercury Policy Project stated, that by FDA’s own admission, thirty to fifty percent of American women remain unaware of the risks from methyl mercury in fish.71

D. What regulatory action has occurred in the years to date in regards to mercury?

1. Pre-1990 Clean Air Act Approach to Toxic Pollutant Regulation.

Following the Japan and Iraq incidents, U.S. health authorities took various measures to protect the health of affected populations.72 Measures have included brief closures of swordfish fisheries and consumer

67 U.S. Environmental Protection Agency, Office of Air and Radiation,

Mercury Study Report to Congress Overview, at www.epa.gov/oar/mercover.html.

68 Id. 69 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, 69 Fed. Reg. 20, (Proposed Jan.30, 2004).

70 U.S. News Wire at http://releases.usnewswire.com/get release.asp?id=12092003. FDA test have shown that Albacore tuna, “white tuna”, has three times the amount of mercury (an average of 0.358 ppm) than “Light Tuna” (with an average of 0.123). However, canned tuna does not appear on FDA warnings. When women and children eat the recommended limit of canned tuna per week (12 oz) their exposure to methylmercury exceeds the “RfD” set by the EPA. Id.

71 The Mercury Project, Press release 8/28/03 at www.mercurypolicy.org 72 See generally, FDA Warnings at http://www.cfsan.fda.gov.


advisories.73 However, the government has been slow to actually regulate mercury in the environment. In part, this inaction is attributable to the fact that authorities did not know the extent of the problem. Also,concerns regarding the viability of fishing interests and other industry costs have kept the issue of mercury accumulation in the environment on the back burner. Until recently, the EPA had done little in response to the growing crisis of mercury accumulation in the environment. The 1970 Clean Air Act (CAA) amendments goal was to “protect public health and welfare from every harmful pollutant …”74 A hazardous air pollutant was defined as one “which may reasonably be anticipated to result in mortality or an increase in serious, irreversible, or incapacitating reversible, illness.”75 The combination of the Act’s goals and definition of hazardous pollutant led to speculation that regulatory standards would require “zero exposure to carcinogens because any exposure to such substances may cause cancer.”76 To minimize impacts on industry costs, the EPA decided against the politically unpalatable zero emission standard.77 Rather the government in effect subsidized the industries by not requiring them to internalize the real costs of production. The 1970 program resulted in regulation of only seven hazardous pollutants, not including mercury.78 As a result, health-based regulations under the CAA did not provide a remedy to mercury accumulation in the environment; the overall goal to protect the population’s health failed.

2. The 1990 Clean Air Act Amendments:

The 1990 CAA amendments converted the regulation from the protection of human health through risk elimination to a technology-based system. Major sources, or sources that emit more than ten tons of a single hazardous air pollutant (HAP) per year or a combination of twenty-five

73 D.A. Handcock, Mercury in Fish, 35 AUSTRALIAN FISHERIES, 4-7 (1976).

74 Leslie F. Chard, The 1990 Clean Air Act Amendments: Section 112 Comes of Age, 59 U.CIN. L. REV. 1253, 1254(1991), citing David Schoenbrod, Coals Statutes or Rules Statutes The case of the Clean Air Act, 30 UCLA L. REV. 740, 756 (1983).

75 42 U.S.C. §7412 (a) (6) (1982). 76 Chard, supra note 73, at 1255. 77 Id, at 1256. 78 42 U.S.C. §7412 (b) (1) B (1982).


tons of a combination of HAPs, or smaller sources at the Administrator’s discretion, in specific industrial categories, must implement the maximum available control technology (“MACT”).79 MACT is defined differently for each of the following categories of sources: 1) existing sources with greater than thirty sources within source category; 2) existing sources with less than thirty within source category; and 3) new sources.80 After the implementing MACT, EPA then has to consider the remaining health risks and make further adjustments to the regulation.81

To solve the problem of insufficient data regarding mercury in the environment, Congress required the EPA to complete two studies: 1)the Mercury Study82, an in depth analysis of the impacts of mercury emissions, the sources, and control technologies, and 2) the Utility Report83, an analysis of the gambit of toxic air pollutants, including mercury, produced by utility plants. 84 The reports were to be completed no later than four years after November 15, 1990.85 The “Mercury Study” was completed in 1997 and the “Utility Report” in 1998.86 On December

79 42 U.S.C. §7412 (a)(1)(1982). 80 EPA, TAKING TOXICS OUT OF THE AIR: PROGRESS IN SETTING

“MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY, 2 (1997), available at http://www.epa.gov/oar/oaqps/takingtoxics/pl.html. “The average emission limitations currently achieved by the best performing twelve percent of sources in that source category, if there are thirty or more existing sources. If there are fewer than thirty existing sources, then the MACT floor must equal the average emissions limitation achieved by the best-performing five sources in the category.” Id. Whereas, the MACT for new sources equals “the level of emissions control currently achieved by the best controlled similar source.” Id.

81 Id. 82 U.S. EPA, MERCURY STUDY: REPORT TO CONGRESS,(1997), available at

www.epa.gov/oar/mercury.html. 83 EPA, UTILITY AIR TOXICS REPORT TO CONGRESS, OFFICE OF AIR

QUALITY PLANNING AND STANDARDS (1998). For Summary of Report at www.epa.gov/ttncaaa1/t3/fact_sheets/utilfs.html.

84 CAA §112 (n) (1)(b), 42 U.S.C §7412 (n) (1) (A). Congress required that the studies consider the “rate and mass of such emissions, technologies which are available to control such emissions, and the costs of such technologies.” Id.

85 42 U.S.C §7412 (n)(1)(B). 86 EPA, EPA Proposes Options for Significantly Reducing Mercury

Emissions from Electric Utilities/ Mercury fact sheet at


14, 2000, the administrator of the EPA at the time, Christy Todd Whitman, pursuant to the settlement87 found that regulating electric utility steam-generating units for the emission of hazardous air pollutants was “appropriate and necessary”.88 Although the “appropriate and necessary” conclusion was made, the EPA did not, however, determine the specific limits on mercury.89 Since then, Christy Todd Whitman has resigned from her position as head of the EPA; President Bush appointed a new administrator, Mike Leavitt, and the Agency’s stance on whether the regulation is ‘appropriate and necessary’ has wavered. “EPA is [now] proposing to revise its December 2000 finding that it is ‘appropriate and necessary’ to regulate utility hazardous air emissions using MACT standard provision (section 112) of the Clean Air Act.”90 Efficiency and cost effectiveness are the rationale behind the proposed changes.91 Finalized regulations are due by December 15, 2004.92 In the CAA section 112, (e)(1)(E), Congress required that “ emission standards for all categories and subcategories be promulgated not later than 10 years after

http://www.epa.gov/mercury/hg_factsheet1_29_04.pdf. The research took longer than the time span Congress set out and the EPA was prompted by suits in 1994 to expedite the reports. Id.

87 EPA, EPA Proposes Options for Significantly Reducing Mercury Emissions from Electric Utilities/ Mercury fact sheet at http://www.epa.gov/mercury/hg_factsheet1_29_04.pdf. “In a pair of 1994 legal settlements, EPA agreed to revised deadlines to complete the studies. EPA also agreed to make a determination about whether MACT regulation was appropriate and necessary and , if necessary propose a MACT standard to reduce hazardous air emission from coal and oil fired utilities.” Id.

88 Barry Goehler, Control of Mercury Emissions From Coal-fired Electric Power Plants, 9 ENVTL. LAW. 119, 123, citing Regulatory Finding on the Emissions of Hazardous Air Pollutants from Electric Utility Steam Generating Units, 65 Fed. Reg. 79, 825-26 (Dec. 20, 2000).

89 EPA, EPA Proposes Options for Significantly Reducing Mercury Emissions from Electric Utilities/ Mercury fact sheet at http://www.epa.gov/mercury/hg_factsheet1_29_04.pdf

90 Id. 91 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, 69 Fed. Reg. 20 (proposed Jan. 30, 2004).

92 Id.


November 15, 1990.”93 Implementation of mercury regulation has been stalled over four years. Instead of implementing MACT at the present time, the Bush administration has proposed further delays in mercury reduction in the environment via the Clear Skies Initiative.94

3. Bush’s Clear Skies

The Bush Administration has offered the Clear Skies Initiative as the alternative to the MACT implementation; thereby revising the December 20, 2000 findings (65 FR 79825) that MACT is ‘appropriate’ and ‘necessary’.95 Modeled after EPA’s former Acid Rain program, the proposed ‘cap and trade’ approach, allocates mercury “allowances” to each state.96 Each state then has the responsibility to allocate the allowances amongst the utilities.97 Utilities can then trade/sell allowances between themselves making sure that by the end of the each year each the adequate amount of allowance to cover its perspective emissions from that year.98 The assumption is that the limited number of allowances will successfully translate into the attainment of the required reductions.99 Those proposing the “cap and trade” approach believe that it is “the most cost effective way to achieve the reductions in mercury emission from the power sector that are needed to protect human health and the environment.”100

93 42 U.S.C. §7412 (e) (1) (E)(1982). 94 Proposed National Emission Standards for Hazardous Air Pollutants; and,


95 Id. 96 EPA, EPA Proposes Options for Significantly Reducing Mercury

Emissions from Electric Utilities/Mercury fact sheet, at www. Epa.gov/mercury/hg_factsheet1_29_04.pdf

97 Id. 98 Id. 99 Id. 100 Proposed National Emission Standards for Hazardous Air Pollutants; and,



The Clear Skies Proposal confuses the relevant issues at stake; rather than focusing on the efficiency and effectiveness of diminishing the risks of mercury exposure to children and poisoning of the Ocean ecosystem, it focuses on monetary efficiency for the power industry. The issue of mercury accumulation in fish represents a highly complicated chemical cycle, which the EPA has not yet integrated into its regulation of the toxin.101 The process has been plagued with delays and neither proposal addresses the scope of the issue at hand. The United States government under the Bush Administration has not addressed this concern at the international level where it is most appropriate.

E. International Frameworks and Guidelines

National and international environmental laws have yet to adequately grapple with the complicated problems that mercury accumulation in the oceans present. However, international framework and guidelines do exist. The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) presents a framework in which land based marine pollution (“LBMP”), such as that of deposition of mercury from air pollution, can and should be addressed.102 As a follow-up to the UNCLOS framework the United Nations Environmental Program (“UNEP”)developed broad guidelines, known as the Montreal Guidelines,103 to control LBMP.104 Presently, the U.S. has signed annex

101 Id. Finalization of rule to regulate mercury will not occur until December 2004. Id.

102 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 747 (Robert C Clark ed., Foundation Press 2002). Note that of the various land based marine pollutants, mercury is recognized as one of the most harmful. Id.

103 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources UNEP/WG.120/3, available at UNEP, Environmental Law Programme Non Binding Agreements, http://www.unep.org/DPDL/Law/Programme_work/Devt_international_law/devt_non-binding.asp Note that Montreal Guidelines are now known as the Global Programme of Action for the Protection of the Marine Environment against Pollution from Land-Based Sources. UNEP, Global Programme of Action for the Protection of the Marine Environment against Pollution from Land-Based Sources, available at http://www.gpa.unep.org/ (Last visited August 19, 2004).

104 DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY, 752 (Robert C Clark ed., Foundation Press 2002).


XI of the treaty but has not ratified the treaty.105 The US Commission on Ocean Policy, in a recent preliminary report, found that “it is imperative that the nation ratify the United Nations Convention on the Law of the Sea, the preeminent legal framework for addressing international ocean issues.”106 UNCLOS as the framework treaty on oceans is the starting point for addressing mercury accumulation in the worlds ocean ecosystem: Article 207 and article 213 of the convention specifically address the problem of LBMP. Article 207 requires states to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.”107 In addition to domestic regulation, states are required to harmonize their policies at the regional level as well as adopt global and regional rules to prevent, reduce and control pollution from land–based sources.108 Lastly, article 207 establishes that LBMP regulations are to be “designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment.” Under UNCLOS, the mandate to control mercury is clear. To ensure reductions, Article 213 of UNCLOS requires states to enforce the regulatory measures against the LBMP.109 The impetus on the global level is, however, lagging and part of this non-action may be attributable to the U.S. stalemate in ratifying the treaty.

105 STATUS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE

SEA, OF THE AGREEMENT RELATING TO THE IMPLEMENTATION OF PART XI OF THE CONVENTION AND OF THE AGREEMENT FOR THE IMPLEMENTATION OF THE PROVISIONS OF THE CONVENTION RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS: TABLE RECAPITULATING THE STATUS OF THE CONVENTION AND OF THE RELATED AGREEMENTS, available at http://www.un.org/depts/los/reference_filesstatus2003.pdf.

106 U.S. COMMISSION ON OCEAN POLICY, PRELIMINARY REPORT: ADVANCING INTERNATIONAL OCEAN SCIENCE AND POLICY 357 (2004), available at http://oceancommission.gov/documents/preliminreport/welcome.html.

107 United Nations Convention on the Law of the Sea, art. 207,UN Doc. A/Conf.62/122 reprinted in 21 I.L.M. 1261 (1982)

108 United Nations Convention on the Law of the Sea, art. 207, UN Doc. A/Conf.62/122 reprinted in 21 I.L.M. 1261 (1982)

109 United Nations Convention on the Law of the Sea, (date of signing) art. 213 UN Doc. A/Conf.62/122 reprinted in 21 I.L.M. 1261 (1982)


III. ANALYSIS

Difficulties that arise in regulating LBMP at the international level parallel the concerns at the domestic level; each nation is unwilling to compromise its economic goals and priorities for environmental protection and health concerns.110 Thus, progress has been limited. “Compared with the history of international agreements on vessel-source marine pollution, the development of the international law on LBMP is . . at a pioneer stage.”111 Yet, with the leadership and technological assistance spurred by U.S. domestic regulation, changes on the international level are attainable. Stringent standards and immediate reductions will aid in the development and distribution of relevant control technologies. The U.S. Commission on Ocean Policy has acknowledged, “[t]he United States can best influence ocean management globally by enacting and enforcing exemplary policies here at home.”112 With implementation of a 'MACT-Cap' hybrid the U.S. can achieve its goals of reducing the health risks to the population and fulfill its responsibility to its neighbors in reducing pollution to the global commons.

A. Implementation of MACT is a Partial Solution

The MACT approach represents the will of Congress in its capacity to legislate on behalf of the U.S. citizenry.113 The design scheme of the MACT program elements is consistent with the overall objectives of

110 DAVID HUNTER, JAMES SALZMAN & DURWOOD ZAELKE,

INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 750 (Robert C. Clark ed., Foundation Press 2002).

111 DAVID HUNTER, JAMES SALZMAN & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 747 (Robert C. Clark ed., Foundation Press 2002).

112 U.S. COMMISSION ON OCEAN POLICY, PRELIMINARY REPORT: ADVANCING INTERNATIONAL OCEAN SCIENCE AND POLICY 357 (2004), available at http://oceancommission.gov/documents/prelimreport/welcome.html.

113 CAA § 112 (k)(c), 42 U.S.C. § 7412 (k)(c). As part of the 1990 CAA

Amendments, MACT standards are aspects of the anticipated design scheme to “substantially reduce the public health risks posed by the release of hazardous air pollutants from areas sources[....]”


the CAA.114 However, aspects of the present MACT proposal for reducing mercury emissions from coal-fired utilities should be broadened to include technologies demonstrated outside of the United States and to encourage the development of additional technological advances.

The MACT approach calls for expeditious limitations on emissions.115 Section 112 (j) (5) (d) clearly states that “[n]o such pollutant may be emitted in amounts exceeding an emission limitation contained in a permit immediately for new sources and, as expeditiously as practicable but not later than the date 3 years after the permit is issued for existing sources….”116 The requirement for immediate reductions falls in line with the understanding that reductions translate into saved lives. The health considerations are explicitly the priority within MACT regulation: “[The] promulgation of such standards is required in order to provide an ample margin of safety to protect public health…. or to prevent taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect.”117 The technology-based standards such as MACT, have proven themselves successful in providing a greater margin of safety.118 For example, Final rules published in December 1995 led to the reduction of mercury emissions from municipal waste combustion units by ninety percent.119

114 Congress has declared the purpose of the CAA: “To protect and enhance

the quality of the nations air resources so as to protect the public health and welfare and productive capacity of its population." 42 U.S.C. § 7412 (b)(1).

115 CAA § 112 (j)(5)(d), 42 U.S.C. § 7412 (j)(5). 116 Id. 117 CAA § 112 (f)(2)(A), 42 U.S.C. § 7412 (f)(2)(A). Although Congress

has prioritized health above economic cost in the promulgation of MACT, the language of the statute asserts that costs can be taken into account in cases of environmental degradation. This notion of separate cost benefit analyses reveals the disconnect implicit in the policy makers minds between human health and the environment.

118 U.S. EPA OFFICE OF AIR QUALITY, TAKING TOXICS OUT OF THE AIR, 1 (1997), available at http://www.epa.gov/oar/oaqps/takingtoxics/pl.html.

119 Id. at 31.


Regulating mercury emissions from coal-fired electric utilities is contentious due to the costs incurred by the polluters.120 Although, costs are not the primary concern of the CAA, the Bush Administration apparently seeks to make it so. The administration argues that the Clear Skies Initiative, which delays the implementation of mercury reductions, will be less expensive than MACT.121 This analysis, however, denies the gravity of the current mercury contamination problem and over emphasizes the projected costs. Much of the comparative economic analysis the Bush administration relies on assumes that MACT implementation will be costly due to bureaucratic complexities and delays caused by anticipated litigation.122 Jeffery Holmstead, assistant administrator of the EPA gave this interpretation in his prepared statement to the subcommittee on energy and air quality, “because these regulations will be the product of separate federal, state and judicial processes, comparable health and environmental protection is likely to cost more under the current Clean Air Act than under Clear Skies.”123 Homestead, assuming that there will not be litigation against the Bush Administration’s Clear Skies Initiative, guaranteed that, “there would be litigation about a mercury MACT standard”124 The Bush administration has indicated its resistance to MACT regulation of mercury emission by stating, “currently there are no adequately demonstrated control technologies specifically designed to reduce mercury emission from coal-fired plants.”125 However, this statement is refuted by the coal industry

120 EPA Proposes Options for Significantly Reducing Mercury Emissions

from Electric Utilities/ Mercury fact sheet, 4 at http://www.epa.gov/mercury/hg_factsheet1_29_04.pdf

121 The Clear Skies Initiative: A Multipollutant Approach to the Clean Air Act: Hearing Before the Subcommittee on Energy and Air Quality of the Committee on Energy and Commerce House of Representatives. 108th Cong. First Sess. (2003), 23. available at http://www.access.gpo.gov/congress/house. Even in the EPA analysis of the benefits of Clear Skies Initiative the health benefits of reduced risk from mercury emissions have not been monetized. Id.

122 Id, at 27. 123 Id. 124 Id, at 51. 125 EPA Proposes Options for Significantly Reducing Mercury Emissions

from Electric Utilities/ Mercury fact sheet, 4 at http://www.epa.gov/mercury/hg_factsheet1_29_04.pdf


itself. Representative Thomas Allen of Maine, reading from an article in American Coal Council, said:

recent full-scale demonstrations have proven the for reducing mercury emissions for different coals and effectiveness of powdered activated carbon injection control configurations. Results indicate that this near-term technology will be well-suited to be retrofitted on existing coal-fuel boilers. It requires minimal new capital equipment, can be retrofitted on without long outages, and is effective on both bituminous and sub bituminous coals. Because of the promise shown be PAC injection to control mercury emissions from all types of cal, it appears unlikely that compliance with pending mercury reduction regulations will result in significant fuel switching.126

While the EPA acknowledges that such technologies have not been demonstrated in the U.S., the Mercury Report includes information on Carbon filter Beds, which have been successfully used in Germany for mercury control on utility boilers.127 "Although mercury control was not the primary purpose for installing the carbon filter beds on the boilers, reduction of mercury is inherent to the control system. A mercury level of under [one] microgram (µg)/dscm has been guaranteed by one vendor."128

The scientific uncertainty of health threats and sources of mercury are not viable excuses for postponiong dramatic cuts in emissions. The conclusions in the Mercury Report have dismissed the excuses of

126 The Clear Skies Initiative: A Multipollutant approach to the Clean Air

Act:

Hearing Before the Subcommittee on Energy and Air Quality of the Committee on Energy and Commerce House of Representatives. 108th Cong. First Sess. (2003), 11. available at http://www.access.gpo.gov/congress/house.

127 U.S. EPA, Office of Air Quality Planning and Standards and the Office of Research and Development MERCURY STUDY: REPORT TO CONGRESS, VOL. VIII: AN EVALUATION OF MERCURY CONTROL TECHNOLOGIES AND COSTS. 2-21 (1997), available at, http://www.epa.gov/ttn/oarpg/t3/reports/volume8.pdf.

128 Id., quoting H. Petersen, LATEST DEVELOPMENTS IN ACTIVATED CORE TECHNOLOGY. Wiesenbaden, Germany 8-9 (1993).


scientific uncertainty.129 The industry claims that it is difficult to remove mercury vapors from emissions, and that costs are high.130 Yet, monetary costs are not the only consideration when implementing policy. Although the cost of implementing MACT may be higher, it is important to question what costs are truly being measured. “EPA estimates that the monetized value of the health benefits quantif[ied] under Clear Skies would be 110 billion dollars annually by 2020, substantially greater than the projected annual costs of 6.3 billion.”131 With such high projections of health benefits, even under the less stringent Clear Skies initiative, pandering to the power industry does not appear justifiable. Implementation of the MACT program is necessary, yet it is merely a first step. Much more is needed to address the scope of mercury accumulation in the ocean ecosystem. The differentiation between the source categories for MACT implementation creates a hierarchy in which existing sources have greater leeway in emission baseline (MACT Floor) standard than new sources.132 Such a framework discourages the development of new technology because the industry as a whole has the incentive to maintain the status quo. Construction of new plants is stifled and on the industry level change is spurred only by regulatory impetus. Amendments to MACT standards could create an equal playing field for the source categories. Such changes would be necessary to use a cap and trade program simultaneously.

In addition, the problem of mercury pollution is not limited to local sources. Mercury crosses national boundaries via air and water. “A

129 See generally, MERCURY STUDY REPORT TO CONGRESS, VOL II. AN

INVENTORY OF ANTHROPOGENIC MERCURY EMISSION IN THE UNITED STATES, (1997).

130 Barry Goehler, Control of Mercury Emissions From Coal-fired Electric Power Plants, 9 ENVTL. LAW. 119, 123 (2002).

131 The Clear Skies Initiative: A Multipollutant Approach to the Clean Air Act: Hearing Before the Subcommittee on Energy and Air Quality of the Committee on Energy and Commerce House of Representatives. 108th Cong. First Sess. 22-23 (2003), available at http://www.access.gpo.gov/congress/house. Although the projected costs of MACT are not accessible it is reasonable to assume that the monetized health values would be higher given the higher and more immediate mercury reductions. Id.

132 U.S. Envtl. Prot. Agency, Office of Air Quality Planning and Standards, Taking Toxics Out of the Air 6 (1997), available at http://www.epa.gov/oar/oaqps/takingtoxics/pl.html (last visited August 2, 2004).


computer simulation of long-range transport of mercury suggests that about one-third (~52 tons) of U.S. anthropogenic emissions are deposited, through wet and dry deposition, within the lower 48 States. The remaining two-thirds (~107 tons) is transported outside the U.S. borders where it diffuses into the global reservoir.”133 To address mercury accumulation in the environment, governments will have to make multilateral agreements, as they did with the global response to ozone depletion.134 Furthermore, the issue is not isolated to clean air. Mercury is used in a variety of products, which inevitably are discarded. The mercury within these products is then released into the environment as a byproduct of incineration.135 Examples of such products containing mercury include: batteries136, electric lights, paint residue, fever thermometers, thermostats, pigments, dental uses, special paper coating, mercury light switches, and film pack batteries.137 In the year 2000 alone, 144.6 tons of mercury in products was discarded as Municipal Solid Waste.138 The pollution problem must be redefined.

B. Clear Skies Is Not The Clear Choice. The proposed CAA Amendment caps mercury at a specified

national level. A first Phase cap would become effective by 2010 and the second phase would not be implemented until 2018.139 Phase one takes

133 EPA, The Mercury Study Report to Congress Overview, at http://www.epa.gov/oar/mercover.html

134 See Generally, The Vienna Convention, at Http://www.unep.org/ozone/Treaties_and_Ratification/za_vienna%20convention.asp

135 U.S EPA MERCURY STUDY REPORT TO CONGRESS VOL.II, AN INVENTORY OF ANTHROPOGENIC MERCURY EMISSIONS IN THE UNITED STATES, 4-15 (1997).

136 Id. “Note: Since 1992 several states have restricted the mercury content of alkaline batteries and /or banned the sale of mercuric oxide batteries. Federal legislation to restrict mercury use in batteries went into effect in May, 1996. The battery industry has eliminated mercury as an intentional additive in alkaline batteries, except in button cells.” Id. at 4-19.

137 Id. at 4-19. 138 Id. 139 EPA, President Bush Announces Clear Skies and Global Climate Change

Initiative, at http://www.epa.gov/air/clearskies/pdfs/clear_skies_factsheet.pdf (Last visited August 19, 2004).


advantage of “co-benefit” controls, that is mercury reductions achieved by reducing sulfur dioxide and nitric oxide emissions.140 Originally, EPA proposed the initiative claiming the "co-benefit" control technologies adopted by the utilities would reducing the current 50 ton emissions per year to twenty-two tons of mercury per year by 2010.141 "[T]he President's Council of Economic Advisers, represented by Mr. Randall Kroszner, backed away from that and said the . . . cobenefit might get down to as low reducing total emissions as 34 tons, but might be as high as 46 tons."142 Given the EPA’s own analysis the benefits “cap and trade” have been greatly overstated. The Bush administration “belie[ves] that such a cap and trade approach to limiting mercury emissions is the most cost effective way to achieve the reductions in mercury emissions from the power sector.”143 The cost savings are understandable given that reductions in the first phase are dependent on “co-benefits,” rather than actually implementing control technologies for mercury.144

In addition to the inaccuracies of the cost efficiency models, the supporters of the proposed amendments have created an emissions comparison under MACT and cap-and-trade, falsely indicating that the cap and trade approach will reduce more mercury emissions than MACT. Under the MACT proposal, mercury would be reduced nationwide by 14 tons (29 percent) by the end of 2007; whereas, under the fully implemented cap-and-trade program "mercury will be reduced by 33 tons

140 The Clear Skies Initiative: A Multipollutant Aprroach to the Clean Air

Act: Hearing before the Subcomm. Energy and Air Quality of the Comm. on energy and Commerce House of Representatives, 108th Cong. First Sess. 42 (2003).

141 Id. 142 Id. Rather than meeting the 26 tons of mercury emissions during phase 1,

mercury emissions could be 34 tons or as high as 46 tons (no 'co-benefit). Id. 143 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, 69 Fed. Reg. 20, 4652 (proposed Jan. 30, 2004).

144 The Clear Skies Initiative: A Multipollutant Aprroach to the Clean Air Act: Hearing before the Subcomm. Energy and Air Quality of the Comm. on energy and Commerce House of Representatives, 108th Cong. First Sess. 42 (2003). Implementing the technology to bring emissions down to phase one goals would cost between 700 and 900 million dollars. Id. at 43.


(69 percent)."145 This comparison is faulty in that full implementation of cap-and-trade may not take place until late 2025.146

With such projections, the cap-and-trade program for mercury does not appear to be the best approach to rapidly responding to mercury bioaccumulation. Furthermore, individuals within the EPA have criticized the comparison stating: “it pretends that the current Clean Air Act does not exist by creating a ‘base case’ projection of air quality that is, basically, bogus. It assumes that no further reductions in pollution could be made other than those currently in play.”147 The argument is that existing CAA in its present form has various

tools that, if used, "could lead to much less pollution."148 Indeed “if the EPA uses its full authority, mercury emissions could be reduced by ninety percent”,149 which translates to five tons a year by the end of 2007.150 C. Management Alternatives

Emissions trading can be combined with the MACT requirement to produce flexibility and motivate innovation. Admittedly, the MACT program has its limitations. By imposing requirements on particular technologies, the MACT program may hamper the development of other environmentally beneficial alternatives. The overall goal of the MACT program is to require industry to take the most aggressive measures to reduce the amount of a pollutant produced at the site. MACT guarantees that the industry reduces the pollutant to the extent that technology allows. However, technology is a dynamic force. Industry may question why it

145 EPA Proposes Options for Significantly reducing Mercury Emissions from Electric Utilities/ Mercury fact sheet, at http://www.epa.gov/mercury/hg_factsheet1_29_04.pdf.

146 United Press Intl., Former EPA Opposes Clear Skies, Feb. 25, 2003. 147 Bad Air Days, at http://www.tompaine.com/feature2.cfm/ID/8251. 148 Id. 149 United Press Intl., Former EPA Opposes Clear Skies, Feb. 25, 2003,

quoting Felice Stadler, national policy coordinator at the National Wildlife Federation.

150 Id, citing Clear Air Trust.


should invest in state of the art equipment when the following year may produce a more efficient technology. Industry perspective can be helpful to understand how to create successful regulation.

The issue of mercury accumulation in the environment is not one to be postponed as the Clear Skies initiative calls for. Trading can be allowed, yet rather than substituting for the strict, immediate emission reductions called for under the MACT program, trading can be used to supplement the MACT program. The cap should conform to the standards required under MACT. Industries can convert to the MACT or make the necessary changes to their processes, which would create the same result. The program should allow for additional reductions to be sold; however, the industries should not be given the opportunity to stock pile emissions.

The EPA has an abundance of information to assist industries in reducing their impacts on the environment. EPA acknowledges control of mercury will take a “mix of strategies including pollution prevention, materials separation and conventional and non-conventional regulatory strategies to control mercury emissions at the stack.”151 As a management alternative, demonstrated mercury substitutes can be used as a pollution prevention technique.152 Pollution prevention also includes energy conservation. Pollution prevention can include removing mercury-containing products such as batteries, fluorescent lights and thermostats from the waste stream.153 “Material separation is appropriate where mercury-containing products are disposed of by incineration, or where mercury can be reduced in the fuel prior to the fuel being combusted (e.g. coal cleaning).”154 The third approach the EPA suggests “may be applicable when mercury is emitted to the environment as a result of trace contamination in fossil fuel or the essential feedstock in an industrial process”.155

151 U.S. EPA, OFFICE OF AIR QUALITY PLANNING AND STANDARDS AND

THE OFFICE OF Research and Development MERCURY STUDY: REPORT TO CONGRESS, VOL. VIII: AN EVALUATION OF MERCURY CONTROL TECHNOLOGIES AND COSTS. 5-18 (1997), available at http://www.epa.gov/ttn/oarpg/t3/reports/volume8.pdf.

152 Id. 153 Id, at 6-1. 154 Id. 155 Id.


IX. CONCLUSION

The Minamata incident and the seed incident in Iraq represent how environmental pollution was viewed in the past. Policy implementation was only triggered by a direct harm, with causation being easily attributable to a ‘point source.’ Yet, science revealed that pollution enters the environment through less direct avenues, affecting our lives and the viability of the earth’s resources. Mercury is a prime example. The 1990 amendments to the CAA were a response to the growing concerns of mercury contamination in us, our children, our oceans, fish, and other wildlife. The response to curbing mercury pollution through market-based mechanisms is inadequate to protecting what we hold dear. For the sake of human health and the health of the worlds oceans, action to reduce emissions must be taken immediately. Market based initiatives can be useful, but solely to supplement a strict regulatory regime, rather than substitute for it.

Mercury accumulation in the environment is a global, and not merely a local, environmental concern. It is imperative that the issue be dealt with on an international level. National efforts will not be sufficient to effectively address the issue of mercury accumulation.156 Solutions at the international level will require broad participation and cooperation, taking into account the interests, rights, and responsibilities of coastal nations. To this end, the United States must work with other nations to develop institutions and mechanisms to improve all aspects of ocean management. Ratifying UNCLOS is a vital step for the U.S. to join this global dialogue. Without international reductions of mercury, U.S. efforts to protect its citizenry via domestic law will be in vain.

156 Id, at 6-2. The public health and environmental impacts of global

transboundry deposition of mercury are yet understood. Id.

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