Board Adopts Mercury Emissions Rule, Chooses Politics over Public Health

On October 15th, 2006, the Montana Board of Environmental Review chose politics over public health when it adopted a rule regulating mercury emissions from coal-fired power plants. What started in March 2006 as an already weak proposal from the Schweitzer Administration was progressively watered down over the next seven months. Coal company lobbyists worked hard to convince Board members and the Governor’s Office that strong regulations would cost Democrats votes in the November election. Instead of standing up to these far-fetched threats, the Schweitzer Administration gave in.

The adopted rule lets coal-fired power plants buy and sell mercury pollution credits. It allows more mercury pollution from coal plants that burn lignite, the dirtiest and lowest energy value coal. And it attempts to limit oversight of DEQ decisions. In the end, only two Board members had the courage to stand up to the political pressure—and the coal industry—and cast votes against the rule. Robin Shropshire and Gayle Skunkcap deserve the thanks of all those who care about public health and the natural environment.

BER member Robin Shropshire, who teaches at the University of Montana-Helena College of Technology, was one of only two board members to vote against the weak mercury emissions rule.  Photo by Jon Ebelt, Helena Independent Record.

The first problem with the rule is that it allows coal-fired power plants to buy their way out of compliance with a mercury emission limit. A regulation enacted in 2005 by the U.S. EPA made the right of coal plants to emit mercury a marketable commodity. Companies can buy and sell mercury pollution credits instead of complying with emission limits. No such market exists for other hazardous air pollutants, but then few industries have so much political clout. Fifteen states and numerous public health and environmental organizations have sued the federal government because of EPA’s regulation. Many states have opted out of the federal trading scheme. But Montana is opting in.

Initially, DEQ director Richard Opper and most Board members openly criticized this trading scheme. Many people thought change was in the air. It appeared that there was more concern for public health than corporate profits and political gain. Unfortunately, that belief was short-lived.

Montana’s rule states that if coal plants fail to meet an established emission limit, they will not be penalized. Instead they can ask DEQ for a weaker limit and purchase pollution credits to make up the difference. If a company does better than the original limit, it can sell its mercury pollution credits to another company so that the purchaser can pollute more. For the past year, Board members have called such a scheme unacceptable and unethical. In the end, however, they voted to allow it.

The second problem with the rule is that it sets weaker standards for lignite coal. This double standard encourages the use of lignite, the most polluting type of coal. There are four types of coal: anthracite; bituminous; subbituminous; and lignite. Each type of coal has different chemical properties and energy content, with anthracite having the purest carbon content and therefore the highest energy value, and lignite having the lowest energy value and highest level of impurities. Even though there is a lot of lignite in Montana, most of the coal being mined and burned here is subbituminous because of its higher energy value and low sulfur content. Currently only one small plant in eastern Montana burns lignite.

But the Schweitzer Administration envisions a future with much more lignite being burned. A new plant, known as the Nelson Creek Power Project, has been proposed for Circle, Montana. This plant would burn lignite and sell its electricity to the Pacific Northwest. Even though the Board received plenty of information showing that lignite-burning plants can control their mercury emissions as well as plants burning subbituminous coal, the Schweitzer Administration urged the Board to set lignite standards that are 100% (for new plants) and 140% (for existing plants) higher than those for plants burning subbituminous coal. Board members Robin Shropshire and Gayle Skunkcap were joined by Board chair Joe Russell in voting against these laxer standards. As Russell said before the vote: “We really need to look at the lignite numbers because they’re pretty generous.” Board members Don Marble and Bill Rossbach argued in favor of the double standard, and were joined in the final vote by the two other Board members.

The third problem with the rule is that it gives DEQ too much discretion. DEQ has never willingly required a coal plant to control mercury emissions. Even so, two Montana plants have agreed to install mercury controls (and another has said it will do so):

• The Hardin Generating Station agreed to install mercury emission controls after MEIC appealed its air pollution permit because DEQ failed to require such controls.
• In 2005 DEQ urged the Board to vote against MEIC’s mercury emission rule proposal, but promised that it would not issue any more air pollution permits without mercury controls until the Board adopted a rule in the future. Shortly after making that promise, the Roundup Power Project (RPP) was granted an illegal extension of its air pollution permit. DEQ said it would only approve the extension if RPP agreed to mercury controls. Faced with the loss of its permit, RPP agreed.
• In a recent permitting action for the Highwood Generating Station, a proposed coal-fired power plant near Great Falls, DEQ yet again failed to require mercury controls. The company has said publicly it intends to install such controls whether required or not. Unfortunately, such promises are unenforceable unless DEQ includes them as conditions of the air pollution permit.

DEQ’s track record leaves little doubt that it has absolutely no commitment to stringent mercury pollution controls at coal-fired power plants. It is critical that the public and the Board be able to review DEQ’s decisions and challenge those decisions when DEQ yields to the political and industry pressure that it regularly receives. Unfortunately, this rule is worded in a way that may reduce opportunities for public oversight.

The final problem with the rule is its remarkably generous compliance deadlines. In theory, companies must comply with emission standards by 2011. But there will be little enforcement of those standards until 2018. And even in 2018, companies can apply to be granted a higher emission limit for mercury than the one set in the 2011 standard.

The Board had a chance to adopt a strong rule but failed. Even Board member Don Marble said before voting to adopt the rule, “… I want to make clear that I think it [the rule] needs to be improved. But we’ll have time, I guess. 2011 is quite a ways off.” Marble did what most Board members did and chose political expediency over good public health policy. This Board and the Schweitzer Administration will be long gone when DEQ is stuck carrying out the vague language in the rule. Their successors, and the public, will be left to clean up the mess.

Read MEIC's Petition to the BER