Lower mercury emissions to come; will fish levels go down?

Mercury levels in fish throughout the northeast represent one of the shortcomings of the national clean water program, but the mercury problem should be improving.  The largest sources of mercury releases to the environment are coal-fired power plants.  Although the Bush administration’s proposed Clean Air Act mercury regulations were properly thrown out by the Second Circuit Court of Appeals, there are state regulations in place or proposed that are more stringent than the Bush administration proposals.  Environmental Science & Technology (Vol. 43, No. 8; July 17, 2009) reports that several states have adopted requirements for 80% reductions in a first phase and 90% in a second phase.  As an example, Pennsylvania adopted rules in October, 2006, calling for 80% controls from 2010 to 2014, and 90% in 2015.  These reductions are known to be feasible.

According to ES & T, mercury depositions from Pennsylvania coal are more likely than coal from other regions to be deposited locally; nevertheless, the idea of a 90% reduction in mercury emissions in Pennsylvania is an attractive thought to a New Englander.  In fact, we don’t really know how much difference these upwind reductions will make in our waters and fish; it remains to be seen.  New York, Connecticut, Massachusetts and New Hampshire are also imposing mercury reduction requirements.  ES & T estimates that approximately one-third of the mercury from coal-fired power plants in the U.S. will be affected by these state regulations.  We can hope that these reductions will actually happen, and actually produce measurable results in the waters and fish.  Falling mercury levels will be cause for optimism!

Endocrine disrupters and pharmaceuticals in municipal wastewater

I listened today to a discussion of “personal health care products”  and pharmaceuticals in the effluent of sewage treatment plants.   Few stories can be more discouraging.  These substances, unlike industrial pollutants which can be kept out of the municipal system by pretreatment program, originate in what has always been regarded as the “uncontrollable sources,” i.e., the domestic sources of municipal sewage, but they are passing through the sewage treatment process and into aquatic environments where they are not harmless.   It appears to be an impossible problem; one that, at best, we can make a dent in by reducing disposal of unused pharmaceuticals.  But in fact, the problem is not insuperable.  Most of the chemicals pharmaceuticals and personal products can be extracted from wastewater by biological processes, and if not biodegrade, at least sequestered and kept out of the receiving water.  This is not true of all of them, but it appears that “advanced biological treatment” can offer a solution to a major portion of the problem.  Furthermore, this can probably be achieved within the structure of an existing secondary treatment plant — we can upgrade the bugs, without have to build new banks of treatment tanks.

Ideally, then, advanced biotreatment would not necessitate a multi-billion dollar construction program.  However, my guess is that it will inevitably become the future for municipal treatment.  EPA won’t get there any time soon, and it won’t go there by itself, but that is where we are heading.  A new layer of cost, but a promising alternative to the prospect of uncontrollable loadings of endocrine disruptors and other forms of toxicity into our rivers, lakes and coastal harbors.

Where is cap & trade going?

Trying to keep track of “cap and trade” legislation in Congress is not easy.  The press recognizes cap and trade as one the Obama adminnistration’s top priorties — but the press doesn’t usually go in for details, especially on a bill that is moving through multiple committees.  But apparently it has already divided Washington’s environmental lobbies.  There is reportedly one set still pushing for it, but others have already that the bill is no longer desirable.  Personnally, I have always been skeptical, because it appears to me that it is unlikely to go far enough.  My concern  is  the idea that CO2 emissions should be curbed gradually, so as to be stabilized by 2050, was supportable when the conceptual foundations for this legislation were laid, but it is already a troubling concept.  The fact is that CO2 is already at levels as high as any known to have existed for the last 600,000 years.  The emissions that will occur over the next 40 years will add to the existing levels — CO2 is not going away as fast as it is being emissions.  Capping emissions in itself is not going to forestall climate change, nor, in my opinion, can we confidently assert that the emissions goals that we have set will keep climate change within acceptable limits.  We are plunging into the unknown, and the day may come when we will wish that in 2009 we had put the brakes on harder and sooner.

Whatever happens in the details of cap and trade, there are other things that Congress — and the states — should do.  The goal of capping emissions from carbon-bearing facilities and vehicles is one thing — bringing down the costs of non-carbon alternatives is another, and facilititating the development of carbon-capture technology is a third.  “Cap and trade” doesn’t directly further either of the latter two goals, but other steps would, including direct subsidies, but also including “renewable portfolio standards,” and government purchasing.  Massachusetts is doing both of the latter, and will continue doing so even if federal cap and trade replaces the Regional Greenhouse Gas initiative.  It strikes me that even if the “cap and trade” legislation ends up being less than perfect, there will still be more to hope for from Congress.  So if this summer produces compromises, there will still be goals to push for.  There may also be EPA proposals for regulations of automobiles.

All of which brings me to this question: what should local activists do?  We are busy working with municipal agencies: schools, police stations, public housing, and  public housing agencies — saving energy, installing PVC panels, and even, where possible, wind generators — saving money, spreading the word, but where will the melodrama of cap and legislation leave us?  I have never felt strongly about reducing my personal carbon foot print — I’m not burning tons of coal.  In other words, I don’t feel that these personal and local action are enough without change at the national level — change that affects the massive sources of coal-fired electricity, and the causes of mobile source emissions.  What are the next steps?

Climate change legislation: will cap and trade “work”?

I just attended a seminar of apparent heavy-hitters who had gathered to talk about the prospects for national carbon cap and trade legislation, and the future of regional schemes.  The leading speaker gave an extremely pessimistic prognosis, not about the passage of national legislation, but about the likelihood of successfully reducing global carbon emissions.

To boil it down, he started from the premise that the only mechanisms that would work would be a carbon tax or a “cap and trade” system, which he asserted was essentially the same thing as a tax –i.e., a government mandated price signal intended to spur producers and consumers to switch to lower carbon alternatives.  He proceeded to argue that the likely impact of existing regional schemes and a potential national scheme, will be minimal, because the price signal of these politically mandated schemes will never remain high enough to drive significant change – because the pain will make it politically impossible.

His argument was fairly convincing, but I left wondering why it didn’t take him back to his starting assumption.  Why are prices signals the only policy tools to be looked at?  Why discard all the tools available to a government that wants to foster a new technology and bring down its price.  The point, after all, is to substitute low or no-carbon energy sources — not just to make energy, and particularly electric power, more expensive.  Government can add other elements to the cap and trade or carbon tax driven price-signal scheme: government can act as a market player to develop demand, and therefore bring down price, for solar PV at military basis, for example.  Government can directly fund and/or subsidize R & D, for carbon sequestration, for example.  Government can — and many states are already — mandate renewable portfolio standard for power suppliers.  Government can stream-line permitting processes for wind farms.

Finally, government could focus on the command-and-control side of the cap-and-trade, i.e., create a carbon emissions cap that will be a meaningful limit, and enforce it, rather than promote the allowances price as a solution.  This last concept could be made to sound like a recipe for economic hardship, and an idea that is rooted in ignorance of the wonders of “market forces.”  But in reality, it is the most market-oriented idea of all: the fact is that innovation and competition really go to work only when people know they are going to have to live with a legal requirement.  The prices of alternatives will come down, when the users really need it to.  As long as the users can lobby for a higher cap, and count on buying allowances, they probably won’t pay much for alternatives — exactly the point made by our pessimistic speaker who began his analysis by dismissing every other approach.

My guess is that all the possible measures will be on the table whenever Washington really gets serious about CO2, but until then we will get schemes that are beloved of policy fashionistas but unlikely to get us where we need to go.  And Washington will gets serious when popular demand can no longer be ignored.  The only real harm from the cap-and-trade scheme is that it will be sold as the whole solution — an idea the public should not accept.

More on EPA’s last minute “MOU” with dentists

The new administration has announced that EPA is freezing the last-minute regulations of its Bush predecessors, but the below-the-radar stuff apparently hasn’t caught their attention yet.  It will.

The “Memorandum of Understanding” with the American Dental Association is a good example of the  dark side of sub-regulatory decisions.  The MOU is, in effect, a by-product of EPA’s consideration of health care facilities as potential sources of toxic pollutants which might require categorical effluent guidelines under the Clean Water Act.  EPA’s consideration of potential new industries is a required process under sec. 304(m) of the Clean Water Act.  The Bush adminstration went through the motions of the 304(m) process, but managed to conclude that no new effluent guidelines at all are called for.

On the surface, the dental MOU appears to be OK — a way of getting a lot of mercury-reducing technology in place with little or no expenditure of government resources.  EPA is doing at the federal level what lot of states have already done — “working with” an industry to promote voluntary good practices without regulatory enforcement.  “Good practices” includes buying technology to separate mercury-containing amalgam particles from wastewater destined for discharge.  These “separators” have supposedly been verified as effective products by means of a test method established by the International Standards Organization — the “ISO” test.

This concept has obvious advantages and disadvantages, and then some not-so-obvious disadvantages, and then some down-sides that are truly outrageous.  Obviously, it saves a lot of government resources.  Obviously, it invites free-riders: if 80% of dentists spend the money to do the right thing, 20% save their money, while they get to go along without any risk of oversight or enforcement.  Why is this a good deal for the 80%?  Or is the number of those who will choose to save their money — the obvious beneficiaries of a choice for a voluntary program — a much larger number?

The free riders are by no means necessarily harmless, even to themselves.  In Massachusetts, during the time of its voluntary program, one dentist decided he had better ideas than the government and the dental association, and began discharging from his chairs to an underground tank.  This was, for one thing, illegal, but more importantly, it was really unwise: the wastewater leaked into the surrounding groundwater, leading ultimately to a massive cleanup bill, which the dentist had to a pay under an enforcement order from the state.

Less obviously, the whole scheme is vulnerable to another problem: the weaknesses of the testing scheme.  The ISO test is limited in ways that don’t result from anyone being a bad guy: the test only tells us the effectiveness of the technology when it is brand new and operated under ideal conditions, at a specified volume of flow.  The test doesn’t tell us how long a unit will operate effectively — it is up to the manufacturer to figure out when components should be replaced, and up to the operator to follow the vendor’s instruction, and pay attention to any apparent deterioration.  Generic testing won’t assure that these things get done, although inspections by a regulatory authority would.  Similarly, dental facilities come in different sizes and configurations –  the ISO test does not establish that a device is a one-size-fits-all device.  A device that is too small for a large flow of wastewater is may not deliver the desired results — but who knows how often this happens?  It may that at some size, facilities are too big for any of the technology tested with the ISO test, and should be using something completely different.  We don’t know — and we aren’t likely to find out with the approach being taken under the new EPA-ADA MOU.

The ISO test also does not address the soluble portion of the mercury in dental wastewater.  Research has shown that the use of acidic solutions to clean vacuum lines can disolve mercury out of accumulated amalgam particles.  The use of such cleaners in combination with a separator that collects amalgam particles could result in a larger portion of dissolved mercury being disharged — a result that can be prevented by avoiding such cleaners.  A program that simply encourages, or even requires that dentists purchase ISO certified separators is not sufficient to control dissolved mercury releases caused by line cleaners.

As a further dilemma, we have no oversight over the testing laboratories themselves.  The United States, unlike the member states of the European Union, has done nothing — strictly speaking, that should be ABSOLUTELY NOTHING — to assure that the tests are being performed by credible, independent laboratories.  You, me and my baby sister could do an ISO test under the current regime.  This means that legitimate vendors have no protection against scam artists competing for market share with phony test results.

Many of the state and local efforts to promote amalgam separators rely on a list of tested units published by the ADA in their journal “JADA” in 2002.  But those test results specifically disclaimed applicability to individual facilities, because they were not published with flow data.  As a result,  individual dentists cannot be sure from that list whether a product is right for their facilities or not.

Finally, the dentists will have to find ways to dispose of the solids from their units, and here again, neither the dentists nor the regulators will escape the burden of dealing with the bad actors.  In Massachusetts, in 2007, after only a couple of years of the program (it switched from voluntary to mandatory in 2006), the state discovered an individual marketing a “disposal” service to dentists which involved picking up filter cartridges full of amalgam solids and washing the solids down a drain into the sewer system.  The state has now indicted this character and is struggling to get the landlord to get the mercury out of the drains in the building where he operate

In short, the”voluntary” approach espoused by EPA in the closing weeks of the Bush administration simply cannot protect the public and the environment.  Experience with this approach in the states has shown that things will go wrong — people will make them go wrong — in every way you can think of.  A large core of decent practitioners trying to do the right thing can’t possibly substitute for a government agency charged with detering the misconduct that will otherwise gather around the margins, ready to undo the work of the core whenever there is a buck to made.  What do we gain from letting these elements flourish, at the expense of both the public and the profession?

Ostensibly, EPA’s MOU is intended to give the feds time to develop a better understanding of dental wastewater and the technology of controlling it, in the anticipation of re-visiting the question of federal regulation two or three years from now.  One might wonder why EPA chose to give itself this time, instead of availing itself of the fruits of 15 years of effort by the states and POTWs.  But it is probably a better idea to take EPA at its word, and begin pressing the agency to make a serious effort to address the problems posed by the current system.  EPA should use the time to develop a truly robust national testing system — that is, a process for credibly certifying laboratories to carry out the ISO test, to certify their results, and to address issues that the ISO test does not address.

EPA should also address the national problem of dental mercury solids disposal — the last, most truly outrageous piece of this picture.  In the past, state and local programs could not direct the generators of such wastes to retire them and get them out of the environment — recycling facilities were a legal solution.  This has never been an environmentally acceptable solution; it is no longer economically feasible.  Nor is it possible any longer to argue that amalgam particles are non-soluble and should not be hazardous waste.  There has always been some data to show that amalgam solids sometimes fail the TCLP test — showing that there is potential solubility and release of bioavailable mercury.  But the TCLP test, like the ISO test, is fairly easy to game: if you choose the right samples, you can assure that most of them won’t be soluble.

EPA should establish that at least after-placement amalgam solids — that is particles from the dental chair — are a listed hazardous waste, to be handled under RCRA without further recourse to TCLP testing.  In reality, based on the mercury and toxic metals content, all amalgam waste should listed, and appropriate disposal requirements identified for these specific wastes — i.e., no incineration, and no recycling.

If EPA takes these issues seriously, dental wastewater should be back on the 304(m) calendar.  These wastewaters and the technology for treating them are a national problem, and can be addressed with uniform national minimum standards.  The standards do not have to be concentration-based effluent limits, as other standards have been.  They could rely on the ISO test, or something like it, and on certification by the user, as Massachusetts and many other states are doing.  But the Agency has to take this program seriously.  There should be no place in national environmental policy for shams — which is the legacy of the Bush administration.

Bush’s last minute regulatory moves

There was a lot of noise in the press about attempts by the Bush administration to engineer a last-minute regulatory agenda between the election and the inauguration.  The coverage brought up a few genuinely offensive developments at OSHA and EPA, but it seemd to me it was not as much as the press seemed to imply — nor would the really visible stuff be that hard to un-do – it seemed to me.  I think the APA, as cumbersome as it is, provides considerable protection to the public, precisely because it requires notice, comment, and a recorb  that will support a decision against a judicial appeal.  But it strikes me that there may be another layer of agency action, even further below the radar, where public notice and comment are not required.  We should look, therefore, at things like Memoranda of Understanding, “reports”, “methodologies” and so on.

As an example, in the environment and public health arena, the FDA came out, just before Christmas, with some sort of document that purported to revise the agency’s position of the danger posed by mercury in seafood.  If something like this were put out for public comment, any number of people could step up and point out any number of flaws, but whatever FDA did doesn’t seem to require the Agency to respond to anyone.  What struck me about this is was the timing — it came out, and went of the radar screen almost immediately.  Then today, EPA announced a Memorandum of Understanding with the American Dental Association and the National Association of Clean Water Agencies or “NACWA” — the Sewage Treatment Agencies — concerning discharges of mercury-containing wastewater from dental offices.  The MOU calls for voluntary action by dentists to install mercury-capturing technology, while EPA refrains from developing national requirements.  Again, the timing — almost guaranteed to avoid public notice, this MOU purports to bind EPA for at least two years into the next administration.  The MOU may not be all bad, but is in fact an agency action — taken without public notice or comment of any kind.  Furthermore, whatever  appears to be on the surface, the MOU fails to address several problems with the technology it calls for — problems that would best be addressed at the federal level.  These problems include the lack of a reliable testing laboratory that would protect the dental profession and the public from fraudulent vendors, and also facilitate market entry by honest innovators.   Also unaddressed is the need for dentists to assure that solid waste from their technology is properly managed.  Within a couple of years of Massachusetts’ adoption of a similarm voluntary program, the Mass AG’s Office indicted a waste hauler for illegally dumping sludge back into the sewer system.  EPA’s MOU does nothing to address this problem.

I  wouldn’t have thought this worthy of comment, if it weren’t the second mercury-related action taken in the lame duck period.

Another example:  EPA just released a “methodology” for developing “Total Daily Mass Loads” or TDMLs, intended to allocate pollutants among sources in water bodies that are suffering excessive levels of such pollutants.  TDMLS are crucial for developing meaningful approaches to pollution problems that cannot be solved solely by individual NPDES permit limits.  For all I know, EPA’s new methodology may be very good, or at least a big improvement — but why would they put it out this week?

Our Childrens’ Earth Foundation v. EPA

I want to applaud Our Childrens’ Earth Foundation for its attempt to challenge the Bush administration’s failure to update EPA’s effluent guidelines for industrial wastewater.  The Supreme Court just denied cert on OCE’S appeal from the Ninth Circuit, which found that EPA’s actions have not violated any “nondiscretionary” duties that would judicial call for intervention.  I can’t say that the Ninth Circuit was definitely wrong, given the uncertain wording of the Clean Water Act, but I am sure that the plaintiffs were absolutely right in their depiction of the Bush administration’s handling of the effluent guidelines as a departure from the intent of the Act that will result in more pollution, and particularly in cities and states that rely on the federal guidelines in lieu of strong programs of water  quality based limits, TMDLs and local limits.  This is one area where we can hope that the new administration will make a difference – but it may be too far down on their radar in the beginning.

Welcome

Welcome.  This is the beginning of a web log of thoughts  on environmental law and policy.   Tripoli Road is a back country road in the mountains of New Hampshire, the route to Mt. Osceola.  Osceola was a leader  of the Seminoles; in both places, the name to me is a beacon of defense of the earth, and of memory for those who love it, who have loved it, who want it to survive.  The phrase “Law and policy” sounds both pompous and boring, but in fact there is far more than dull debate to be found in the issues and the lawsuits taking place today.  I am starting to blog my thoughts because I believe that they are worth sharing – and these events are desperately important.