Federal Court Sends DHEC Permit Back to the Drawing Board

A federal court ruling today will mean that the S.C. Department of Health and Environmental Control (DHEC) must re-evaluate Santee Cooper’s plans to control mercury at the utility’s proposed Pee Dee coal plant near Pamplico, SC. The D.C Circuit Court of Appeals ruled today that EPA violated the Clean Air Act when it removed oil- and coal-fired power plants from the list of hazardous air pollution sources that are subject to the Act’s most stringent air pollution controls. As a result, air permits for new coal plants such as the Pee Dee plant must be based on a case-by-case analysis of the maximum available control technology for mercury and other hazardous air pollutants.

"We warned DHEC that the mercury standard it was using for the Pee Dee permit was too weak and would get tossed out in federal court. And that is exactly what happened. Now DHEC and Santee Cooper need to start over and examine all alternatives with lower mercury emissions. It's too bad they didn't do that in the beginning, but now they have no choice," said Blan Holman, SELC attorney. "This decision is very good news for South Carolinians."

In December, DHEC issued a draft air permit for the Pee Dee plant would allow the Pee Dee plant unit to emit 138 pounds of toxic mercury each year in an area of the state that is already known as the “Mercury Triangle” because of high levels of mercury contamination. In developing the permit, DHEC did not conduct a case-specific analysis of maximum available control technology (MACT) for mercury, and the permit does not require Santee Cooper to install mercury-specific pollution control equipment.

In comments filed on January 22, SELC notified DHEC of the anticipated federal decision and urged the agency to consider these expected mercury regulations when developing its final permit. The D.C. Circuit’s ruling means that DHEC must withdraw the draft air permit for the Pee Dee plant, go back to the drawing board to conduct a case-specific MACT analysis, and issue a revised draft permit for public comment before finalizing a new permit.

Because mercury is classified as “hazardous,” the Clean Air Act requires EPA to identify its sources and develop the most stringent standards to control emissions from those sources. The court ruled today that EPA acted illegally when it took power plants off the list of hazardous pollution sources when issuing its Clean Air Mercury Rule.

Released in May 2005, the federal Clean Air Mercury Rule exempted power plants from the most stringent Clean Air Act requirements to control mercury and instead instituted a flawed “cap and trade” scheme, which allows facilities to trade mercury pollution credits with other less-polluting power plants. As a result of the D.C. Circuit’s ruling today, EPA and the states must now develop tougher regulations to control mercury and other toxic pollutants from new and existing power plants, the leading source of mercury pollution in the country. Today’s ruling could result in a 95 percent or greater reduction of mercury emissions from coal-fired power plants

Mercury emitted from power plants deposits in water bodies, where it is converted to its most toxic form, methylmercury. Methylmercury exposure from eating contaminated fish is linked to permanent damage to the central nervous system. Developing fetuses, breast-fed infants and children exposed to methylmercury are at risk for lowered intelligence and learning disabilities. Adults exposed to even low amounts of methylmercury also may be at higher risk for altered sensation, impaired hearing and vision, and motor disturbances. EPA estimates that as many as than 600,000 children are born each year with unhealthy levels of methylmercury in their bodies. Despite this figure, EPA adopted the flawed mercury rule ignoring the counsel of its own Children’s Health Public Advisory Committee and thousands of health professionals nationwide.