Clean Water Act 319(g)Petition

Kathy G. Beckett

Midwest Ozone Group

January 22-23, 2009

New England States and New York State

• NEIWPCC – New England Interstate Water Pollution Control Commission

• October 28, 2008 – Filed petition with U.S. EPA

• Request – A management conference to address water bodies impaired by atmospheric deposition of mercury.

List of Petitioning States

• Connecticut

• Maine

• New Hampshire

• New York

• Rhode Island

• Vermont

• Massachusetts

NEIWPCC Assertions

• NEIWPCC states have eliminated almost all-in region sources of mercury.

• U.S. EPA has approved the Northeast Regional Mercury TMDL in December 2007.

• Between 1998 and 2002 the Northeast States have reduced in-region deposition of mercury by over 70 percent.

• Enforceable controls in place to meet the remaining reduction goals.

Management Conference

• “The purpose of such Conference shall be to develop an agreement among such States to reduce the level of pollution…resulting from nonpoint sources and to improve the water quality…”

• Petitioners want to meet designated uses and water quality standards for mercury within the region through the implementation of plant-specific MACT limits (90% reductions) for mercury by EPA under 112 (d) of the Clean Air Act.

Designated Uses

• Each Petitioning States has CWA designated uses of fishing and fish consumption for most of their waters. Mercury pollution prevents compliance with these designated uses and with water quality criteria implementing these uses.

• Each state has issued advisories limiting the types and amounts of fish that can be eaten.

Water Quality Criteria

• Each of the Petitioning States has water quality criteria for mercury in water and/or in fish that, in part, implement water quality standards. States are required under Sec. 303(d) of the CWA to develop TMDLs for impaired waters and has done so through the Northeast Regional Mercury TMDL, approved by EPA on December 20, 2007.

Northeast Regional Mercury TMDL

• The TMDL identified mercury from atmospheric deposition as the primary cause of impairment. Compliance with the TMDL requires a 74 to 91 percent reduction in fish tissue mercury concentrations.

• To meet the reduction targets, atmospheric deposition of mercury will have to be reduced by at least 98% relative to 1998 levels. An interim goal of 75% by 2010 has been established.

March 2008 NESCAUM Study

• U.S. sources contribute approximately 30 percent of the atmospheric mercury deposition in the Northeast region.

• In-region sources contribute approximately one-half of the atmospheric mercury deposition from U.S. sources within the petitioning states.

• Approximately 48 percent of the petitioner states’ atmospheric mercury deposition from U.S. sources originates from states outside the region.

Out-of-Region States’ Contribution of Atmospheric Mercury

• Pennsylvania 21.7%• New Jersey 5.6%• Ohio 5.5%• West Virginia 3.9%• Maryland 3.7%• Michigan 2.0%• Virginia 1.5%• Indiana 1.3%• Kentucky 1.2%• North Carolina 1.1%• Illinois 0.9%

New England Governors and Eastern Canadian Premiers

• The Conference of the New England Governors and Eastern Canadian Premiers (NEG-ECP) is an organization of the governors of six New England states and the premiers of the five Eastern Canadian provinces.

• In 1998, a regional Mercury Action Plan (MAP) was developed by this conference.

Mercury Action Plan

• The MAP identifies steps to address those aspects of the mercury problem in the region.

• Goal – 50 percent reduction of regional mercury emissions by 2003, and 75 percent reduction by 2010.– 2003 goal was met with 55% reduction.– Results of 87 % reduction from municipal waste

combustors and 97% reduction from medical waste incinerators and 100 % reduction from chlor-alkali facilities.

Connecticut

• Legislation passed in 2003 requires Connecticut’s two coal-fired electric power generating facilities to reduce mercury emissions by 90 percent from the amount of mercury in the coal burned, starting in 2008.

• Connecticut further implemented regulations for these two coal-fired electric power generating facilities effective May 29, 2007, creating a “state mercury mass emissions cap.” This cap limits emissions from existing and any new coal-fired electric generating unit up to 106 pounds of mercury per calendar year for the period beginning January 1, 2010, through December 31, 2017. The cap is further lowered

• Connecticut also has other industry sector (solid waste) and mercury product regulations.

Maine

• Maine has a mercury reduction and elimination program that addresses air emissions, water discharges, products and waste. Instate facilities are currently limited to 35 lbs of mercury emissions per facility per year and that limit drops to 25 lbs. in 2010. Facilities emitting over 10 lbs./year must have submitted a mercury reduction plan by September 2008.

• Wastewater discharges are regulated with effluent limits and mandatory mercury reduction plans.

• Maine also has other industry sector (wastewater discharge) and mercury product regulations

Massachusetts

• Massachusetts has taken steps to quantify in-state mercury sources and impost maximum controls on such sources. Massachusetts’ Mercury Management Act requires end-of-life recycling of mercury-containing products, appropriate disposal.

• Massachusetts also has regulation for coal-fired power plants that required 85% capture of mercury in coal burned by the beginning of 2008 and require 95 percent capture by October 1, 2012.

• Massachusetts also has other industry sector and mercury product regulations

New Hampshire

• New Hampshire requires 80 percent reduction of mercury emissions from coal-fired power plants using scrubber technology by July 1, 2013.

• New Hampshire also has other industry sector (municipal waste incinerators) and mercury product regulations

New York

• New York require a 50% decrease in mercury emissions from coal-fired power plants by January 1, 2010 and then will implement a unit-based limit for each power plant facility that will result in an estimated 90 % decrease from current levels.

• New York has mercury product regulations.

Rhode Island

• The Rhode Island Mercury Reduction and Education Act requires the phase-out of mercury-added products, labeling, collection plans, bans on certain products, and elimination of mercury from schools.

Vermont

• Vermont has a mercury labeling and recycling law.

• Vermont has not coal burning plants, municipal incinerators or medical waste incinerators.

CWA 316(g) Interstate Management Conference• Convening of conference; notification; purpose If any portion of the navigable waters

in any State which is implementing a management program approved under this section is not meeting applicable water quality standards or the goals and requirements of this chapter as a result, in whole or in part, of pollution from nonpoint sources in another State, such

• State may petition the Administrator to convene, and the Administrator shall convene, a management conference of all States which contribute significant pollution resulting from nonpoint sources to such portion.

• If, on the basis of information available, the Administrator determines that a State is not meeting applicable water quality standards or the goals and requirements of this chapter as a result, in whole or in part, of significant pollution from nonpoint sources in another State, the Administrator shall notify such States. The Administrator may convene a management conference under this paragraph not later than 180 days after giving such notification, whether or not the State which is not meeting such standards requests such conference. The purpose of such conference shall be to develop an agreement among such States to reduce the level of pollution in such portion resulting from nonpoint sources and to improve the water quality of such portion. Nothing in such agreement shall supersede or abrogate rights to quantities of water which have been established by interstate water compacts, Supreme Court decrees, or State water laws.