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Monday, March 05, 2007

Mercury press

Activists, 9 states sue over cement kiln emissions

Air quality - The EPA is accused of failing to control mercury at industrial plants in Oregon and other states
Wednesday, February 21, 2007

Environmental groups and nine states are suing the federal government for refusing to control toxic mercury released into the air by existing cement kilns, including one in Eastern Oregon that is among the largest sources of airborne mercury nationwide.

The Environmental Protection Agency decided in December that it would be too expensive for cement companies to refit their plants to cut down on mercury emissions. The new lawsuits filed Friday and Tuesday contend that the EPA defaulted on an earlier court decision that ordered the agency to regulate mercury from the plants.

The case has a direct impact on Oregon because a cement plant next to Interstate 84 in Durkee released an estimated 1,534 pounds of mercury into the air in 2005, the last year with numbers available. Emissions from the plant operated by Ash Grove Cement Co. are about 10 times as high as those from Oregon's next largest industrial mercury source -- Portland General Electric's coal-fired power plant near Boardman.

Although state regulators are mandating mercury restrictions on the Boardman plant, they are still considering how to address mercury from the cement kiln.

The Oregon Department of Environmental Quality is awaiting results from new testing of the cement kiln's emissions conducted in December, said Linda Hayes Gorman, eastern regional manager for air quality at the DEQ.

Mercury collects in the food chain -- especially in fish -- causing neurological damage and birth defects in people who consume too much contaminated fish. Some forms of the compound fall out of the air quickly, while others can travel thousands of miles around the globe.

The DEQ wants to know more specifically what forms of mercury come from the cement plant.

Mercury emissions from the cement kiln are believed to be unusually high because of mercury levels in rock that is mined nearby to make the cement. The rock is heated during the manufacturing process, which allows mercury to vaporize into the air.

Emissions from the plant are calculated based on limited testing from more than five years ago.

In 2004, the Durkee plant was the third-largest source of airborne mercury in the country, according to estimates the company reported to the EPA. However, its releases declined in 2005.

Nine Eastern and Midwestern states sued the EPA on Tuesday for not controlling cement kilns, following a similar lawsuit filed last week by environmental groups including the Sierra Club, Downwinders at Risk, Desert Citizens Against Pollution, and Montanans Against Toxic Burning.

A judge last year found the EPA "grossly delinquent in making serious efforts to comply" with direction by Congress to limit hazardous toxic compounds in the air. The judge said the EPA was instead devoting time to rule changes, "many of which make existing regulations more congenial to industry."

The EPA said it is reviewing the new lawsuits and would "respond appropriately in due course."

James Pew, an Earthjustice attorney representing the environmental groups, said the EPA appeared to act based more on politics than on the legal mandates of the Clean Air Act.

"They really have nothing to lose by forcing everyone into another round of lawsuits," he said. "From a political appointee's point of view, it's probably preferable to get a tongue-lashing from the court than a tongue-lashing from political supporters."

Michael Milstein: 503-294-7689; michaelmilstein@news.oregonian.com

States sue Bush administration over cement plant emissions
The Associated Press

ALBANY, N.Y. -- Nine states have sued the Bush administration for what officials claim is a failure to regulate mercury and other pollutants from cement plants.

The suit was filed Tuesday in the U.S. Court of Appeals in the District of Columbia. State officials from New York, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, New Jersey, and Pennsylvania contend the U.S. Environmental Protection Agency's rule regarding Portland cement plants violates the federal Clean Air Act. The states say the latest rule wouldn't force lowering of emissions.

"This coalition of states is resorting to the federal courts in an effort to compel the EPA to follow the law and establish limits for the most dangerous pollutants," said New York Attorney General Andrew Cuomo.

"The agency will review the matter and respond appropriately in due course," EPA spokesman John Millett said.

The EPA says it has reduced mercury air emissions by 45 percent since 1990 and has programs in place to limit mercury emissions from power plants. Last year, the EPA announced new emission limits for cement kilns to cut mercury and hydrocarbon releases.

The cement is made nationwide and used widely in road and building construction.

Feb. 21, 2007, 9:13AM
9 States Sue Over Mercury Emissions
By JOHN FLESHER AP Environmental Writer
© 2007 The Associated Press/Houston Chronicle

TRAVERSE CITY, Mich. - Michigan and eight other states sued the Bush administration Tuesday, saying the White House failed to adequately regulate emissions of mercury and other pollutants at cement plants.

The states contend a rule issued by the Environmental Protection Agency in December does not comply with the federal Clean Air Act.

Mercury comes from raw materials used to make cement _ such as limestone, clay, sand and iron ore _ and from fuels such as coal, which fires the kilns where the ingredients are baked at high temperatures.

In December, the EPA announced new limits on mercury and hydrocarbon emissions from cement kilns built after Dec. 2, 2005.

But for kilns built earlier, the agency imposes lesser requirements such as operating kilns properly to ensure complete combustion and removing kiln dust when it can no longer be recycled.

Critics say the Clean Air Act requires the EPA to limit mercury from all kilns, not just new ones.

"I think they should have explored some of the options a bit more in detail than they did," said Vince Hellwig, air quality chief with the Michigan Department of Environmental Quality.

The lawsuit was filed in the U.S. Court of Appeals in the District of Columbia, where several environmental groups filed a separate action last week. The other eight states are Connecticut, Delaware, Illinois, Maryland, Massachusetts, New York, New Jersey and Pennsylvania.

EPA spokesman John Millett said the matter was under review and declined to comment further.

The agency says it has reduced mercury air emissions by 45 percent since 1990. It estimates the nation's 118 cement plants give off a combined 12,000 pounds of mercury a year, although some state regulators say the actual amount is higher.

Taking toxic fight national
Friends of Hudson joins legal challenge to EPA on mercury emissions from cement plants

By BRIAN NEARING, Staff writer
Albany Times Union
Wednesday, February 21, 2007

HUDSON -- A local environmental group is part of a national lawsuit that claims the federal government has turned a blind eye on mercury pollution from cement plants.

Friends of Hudson is among six groups from across the country that sued the U.S. Environmental Protection Agency last week over rules issued in December on cement plant emissions.

Two coal-fired plants in the Hudson River valley -- LaFarge Building Materials in Ravena and St. Lawrence Cement in Catskill -- were the two largest mercury polluters in the state, according to EPA's Toxic Release Inventory.

The two plants pumped about 660 pounds of mercury into the air, or nearly 40 percent of statewide emissions during 2004, the most recent year for which records were available. Mercury is a toxic material known to cause developmental problems in fetuses and children.

The EPA places limits on mercury emissions following a 2000 federal court ruling that ordered the agency to address the problem under the Clean Air Act on cement plants built after Dec. 2, 2005.

"EPA refuses to exercise its obligations," said Susan Falzon, executive director of Friends of Hudson. "The public can draw only one conclusion -- that the EPA refuses to protect children and newborns. People are at risk throughout the state, just not near the source of the pollution."

Other environmental groups in the lawsuit include the Sierra Club, California-based Desert Citizens Against Pollution, Texas-based Downwinders at Risk, Michigan-based Huron Environmental Activist League, and Montanans Against Toxic Burning.

In April 2006, DEC gave LaFarge permission to burn 4.8 million scrap tires each year for fuel, which the company said could replace about 20 percent of the coal and coke, a coal byproduct, burned to make cement. The company expected to start burning the tires sometime this year.

Last week's lawsuit asked that EPA be forced to reconsider the December cement plant rules, said James Pew, a lawyer for Earthjustice, a Washington, D.C., group that filed the challenge.

"We think that these rules are unlawful," Pew said. "We want a court to tell them to go back and do it right."

On Tuesday, EPA spokesman John Millett said, "The agency will review the matter and respond appropriately in due course."

Airborne mercury that rises from a smokestack can settle in water, contaminating fish and other wildlife, making them unsafe to eat. Mercury and PCBs are the main contaminants of fish in the state.

Because of such pollution, the state Department of Environmental Conservation has set limits on eating fish from the Hudson River and other state waters.

Preliminary information about mercury levels in the Adirondack and Catskill Mountain regions suggest that some larger, older specimens of pickerel, northern pike, smallmouth and largemouth bass, walleye and yellow perch often have relatively high levels of mercury in their flesh, higher levels than similar fish from other regions in the state, according to the DEC.

The department recommends that infants, children under 15 and women of child-bearing age avoid those fish from Adirondack and Catskill Mountain waters.

Predators that eat fish-eating animals are also at risk: mercury has been found in eagles, otters and endangered Florida panthers.

Brian Nearing can be reached at 454-5094 or by e-mail at bnearing@timesunion.com.

Local group takes on EPA over cement plant emissions
By Patricia Doxsey, Kingston (NY) Freeman staff

NEW York is among nine states challenging U.S. Environmental Protection Agency rules that fail to regulate the emission of mercury and other pollutants from cement plants.

State Attorney General Andrew Cuomo on Tuesday announced the multistate effort to have a federal court overturn the EPA rule by finding it violates the Clean Air Act.

A similar challenge is being brought against the federal agency by a consortium of environmental groups, including the Hudson-based Friends of Hudson.

There are two coal-fired cement manufacturing plants in the Hudson Valley - St. Lawrence Cement in Catskill and LaFarge Building Materials in Ravena.

According to the EPA's Toxic Release Inventory, those plants were the two largest mercury polluters in the state.

In a prepared statement issued Tuesday, Cuomo called "shameful" the failure of the EPA to promulgate the standards required under law.

In 2000, a federal court ordered the EPA to set standards under the federal Clean Air Act for various hazardous air pollutants, including mercury. The rules released by the EPA in December 2006 exempt existing cement plants from meeting those standards.

"This is just another instance in a long line of examples of the Bush administration caving to industry lobbyists at the expense of the health concerns of ordinary citizens," Cuomo said.

In addition to New York, the states challenging the EPA rules are Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, New Jersey and Pennsylvania.

Susan Falzone, executive director of Friends of Hudson, said that in 2004, the Catskill and Ravena plants were responsible for nearly 40 percent of all mercury emissions in New York.

"It's obvious to us that the cement industry and ... cement factories in our area are not being held to standards to limit mercury, and that is a public health issue," Falzone said.

"There's no question about mercury and it's potential hazards," she said.

Mercury is a heavy metal that can damage the central nervous system, the endocrine system, the kidneys and other organs. Over time, it can result in brain damage and death.

The Washington-based environmental law firm Earthjustice is representing Friends of Hudson and the Sierra Club in the suit, as well as Downwiders At Risk of Texas, Desert Citizens Against Pollution of California, Montanans Against Toxic Burning and the Huron Environmental Activist League of Michigan.


Posted on Wed, Dec. 13, 2006
Standard for cement kilns criticized
McClatchy Newspapers

WASHINGTON - Environmental groups are upset over a new federal effort to cut mercury emissions at dozens of cement plants around the country, saying it defies a court order to toughen controls on the highly toxic air pollutant.

The Environmental Protection Agency defended the standard as an important step to curb the flow of noxious fumes from industrial smokestacks.

The more than 200 cement kilns in the United States are the nation's second-largest mercury emitters after coal-fired power plants, which are installing pollution-control equipment under state programs required by the EPA. North Texas is home to three of the nation's largest mercury-emitting cement plants, owned by Ash Grove Cement, Holcim Inc. and TXI Operations.

James Pew, a lawyer with Earthjustice in Washington, said the mercury standard that the EPA announced Monday applies only to new or modernized cement plants. He said the regulation doesn't require the owners of existing kilns to retrofit them with scrubbers or other equipment to reduce mercury emissions.

"The EPA decided to allow every cement kiln to continue to emit as much mercury as it likes," Pew said. "This is part of a long string of agency refusals to obey the law."

About 80 percent of the cement used in the United States, Pew said, is produced at plants owned by foreign companies, among them giant firms in France, Switzerland and Mexico.

Keith Barnett, an EPA environmental engineer who helped craft the mercury rule, said it satisfies the 1990 amendments to the Clean Air Act, in which Congress listed 189 of the most toxic pollutants and directed the EPA to set limits on them.

"We determined that what cement kilns are currently doing meets the minimum requirements under law," Barnett said. "This is a judgment call that we have to make when we evaluate each [pollutant] source category."

The new EPA standard also targets cement kiln emissions of hydrocarbons, a class of pollutants that's less toxic than mercury.

Mercury, a heavy metal whose consumption has been linked to memory loss, birth defects and other neurological disorders, enters waterways from rain. Its toxicity is then concentrated by a type of water bacteria. Fish transmit mercury to people, with tuna and other species higher in the food chain carrying higher levels.

At least 40 states have warned residents about eating mercury-laden fish from their lakes, rivers and creeks.

The owners of cement kilns say they release 12,000 pounds of mercury a year into the air. Environmentalists say the total is probably much higher because most mercury emissions reported to the EPA's Toxic Release Inventory are estimates, not measurements. The EPA said its new rule will reduce mercury emissions from cement plants by 1 ton -- 2,000 pounds -- a year, or one-sixth of the current reported level.

Some cement companies have voluntarily started measuring their plants' mercury emissions. The estimated annual emission of 58 pounds from a cement factory in Alpena, Mich., rose tenfold after its operators began measuring the emissions, according to Pew.

"EPA doesn't require them to measure," Pew said. "If they were taking this issue seriously, they could have done that years ago."

Andrew O'Hare, vice president of regulatory affairs for the Portland Cement Association in Washington, said winds can carry airborne mercury thousands of miles. Much of the mercury contamination in the United States, especially in the West, comes from factories in China and other rapidly industrializing parts of Asia, he said.

The three cement kilns in North Texas have long been a source of controversy; some Midlothian residents have complained that the plants are harming people. The federal Agency for Toxic Substances and Disease Registry, along with Texas health officials, is conducting a study designed to determine whether emissions from TXI's plant in Midlothian have adversely affected nearby residents' health. The study is expected to be completed early next year.

Ash Grove's Midlothian plant is the largest mercury-emitting cement plant in Texas, according to the federal statistics, discharging 150 pounds of mercury and mercury compounds in 2004. The plant ranked 27th nationwide. Holcim's Midlothian cement kiln ranked 60th nationwide for total emissions of mercury and its compounds; TXI's plant ranked 77th.

Cement plant officials aren't talking much about the new mercury rule.

Lance Latham, an Ash Grove spokesman, said the company is still reviewing the rule and referred questions to the Portland Cement Association, the industry trade group.

Holcim also declined to discuss the specific mercury rule. But Michel Moser, the Midlothian plant's manager, defended the company's commitment to environmental issues, noting the cement kiln installed scrubbers there in 2000 to reduce plant emissions, including mercury.

Randy Jones, TXI's vice president of corporate communications and government affairs for the Dallas-based company, did not return three phone messages seeking comment.

Staff writer Scott Streater contributed to this report.


Mercury emissions

Cement kilns are required to report mercury emissions to EPA's Toxic Releases Inventory, but the reports can be estimates instead of measurements. Here are the reported mercury releases of Texas plants in 2004:

Ash Grove Cement, Midlothian, 150 pounds

Holcim Inc., Midlothian, 60 pounds

TXI Operations, Midlothian, 30 pounds

SOURCE: McClatchy Newspapers
Click here to find out more!

Older cement kilns get EPA pass on mercury
Plants built more than a year ago, including 11 in California, won't have to upgrade controls.
By Janet Wilson, LA Times Staff Writer
December 12, 2006

The Environmental Protection Agency announced Monday it would not require cement manufacturers - including the nation's largest emitter, in Tehachapi, Calif. - to upgrade plants to control mercury.

Cement kilns are an integral part of the building boom in Southern California and elsewhere, turning raw limestone and waste ash from coal plants into the material used to build highways, tract homes and commercial developments.

Mercury, which can be emitted when stone or coal ash is processed, is a potent neurotoxin that can harm developing brains. The emissions also pollute water bodies.

Environmental groups that sued under the federal Clean Air Act to force tighter controls said the decision ignored two court orders.

The EPA's ruling will require kilns built in December 2005 and onward to limit and measure actual emissions. The agency said that would reduce emissions by as much as 3,000 pounds, in an industry estimated to emit 6.6 tons of mercury annually. But the regulators said that upgrading existing plants would be too costly for industry and the resulting air-quality improvements would be too scant.

Parts of the decision, signed late Friday by EPA Administrator Stephen L. Johnson, closely follow industry requests to the agency. Industry officials also met with White House staffers Nov. 30 to discuss the pending decision, and EPA staffers phoned in to the meeting, records show.

The decision sparked outrage from environmental groups and residents downwind of kilns, who have fought for years to get stricter emission controls.

"The news today is not good. EPA has decided to let every existing cement kiln in the country emit as much mercury as it likes," said James Pew, an attorney with Earthjustice, which twice has won a court order requiring the EPA to set mercury standards for cement plants under the Clean Air Act. Pew said the agency had ignored the court orders and issued "the same measures rejected as unlawful more than five years ago…. EPA clearly thinks it can just thumb its nose at the law."

Eleven of the 94 factories with cement kilns in the United States are in California, including in Colton, Mojave and the Lucerne Valley. The single worst mercury polluter in the country is the Lehigh Southwest cement kiln in Tehachapi, which reported in 2004 that it had emitted more than 2,500 pounds of mercury, according to the federal Toxic Release Inventory. A company environmental officer declined comment.

Under the new rules, existing plants still must control dust containing mercury. Cement manufacturers will continue to be allowed to emit coal ash produced by power plants, as long as they do not use a certain type of boiler technology. No kilns in the U.S. currently use the technology, but some of the estimated 25 plants that may be constructed in coming years could use it.

"I think the bottom line is that we reviewed all the information that we were required to under the law," EPA spokesman John Millett said. "We weighed the information and came to a decision about what was feasible for existing plants under the regulation - and we also issued stringent regulations on new sources."

EPA environmental engineer Keith Barnett, of the agency's air-quality planning and standards office in North Carolina, said it would cost a cement manufacturer "$1.5 million per year per kiln for a wet scrubber" that might reduce emissions by 42%, which he said was not a large enough reduction to justify the cost.

Marti Sinclair of the Sierra Club said $1.5 million would be a small price to protect the public, noting that one of the nation's leading cement producers had reported revenue of $1.1 billion last year and had already installed such technology in Switzerland, where it was required.

California and several other states had asked the EPA to require cement factories to monitor and accurately measure mercury emissions. Although federal law requires cement plants to report emissions, it does not require those reports to be based on actual measurements. Both industry and environmental groups noted that mercury content could vary widely in raw materials.

"There is no law or rule on the books that requires cement kilns to measure mercury emissions," Barnett confirmed. "They are required to report their mercury emissions…. They use whatever data they can find."

But when kilns have tested emissions, the data have shown earlier reporting to be "gross understatements," according to the Sierra Club. A cement plant in Alpena, Mich., reported annual mercury emissions of about 50 pounds, but when the Michigan Department of Environmental Quality required the plant to test actual smokestack emissions, the kiln was found to be emitting more than 10 times what the plant had reported.

"If reporting from the rest of the cement industry is as inaccurate as the reporting from Alpena, this industry could be putting out between 25 and 50 tons of mercury every year," said Jane Williams, chairwoman of the Sierra Club's Air Toxics Task Force.

"That would put cement kilns in the same category as coal-fired power plants, which have long been recognized as the worst culprit for mercury contamination."

Representatives of three California cement plants declined to comment Monday, and staff for the Portland Cement Assn. did not return phone calls. Portland cement is the mostly widely produced and used type of cement.

In a statement, the association said it was studying the impact of the rule on the industry and on its plans for a $3.6-billion expansion - including constructing plants and modernizing and enlarging existing ones - to meet "record demand for cement."

"The industry will continue to conduct research to identify strategies for addressing mercury emissions and will share its findings with the EPA to ensure that industry standards are based on sound science and support our shared mission to protect human health and the environment," the statement said.

It continued: "PCA-member plants use state-of-the-art technologies to continuously minimize emissions … while costeffectively producing a high-quality product."


Posted on Mon, Dec. 11, 2006
Federal government limits mercury from new cement plants
Associated Press

TRAVERSE CITY, Mich. - The federal government has set limits on airborne mercury emissions from cement kilns six years after a court order required them, but they apply to future plants instead of existing ones.

Once fully in effect, the rules announced Monday will prevent between 1,300 and 3,000 pounds of mercury nationwide from escaping into the atmosphere each year, the U.S. Environmental Protection Agency said. Mercury can damage the nervous system and cause developmental problems for children.

The nation's 118 existing cement plants give off a combined 12,000 pounds of mercury, the EPA says, although that figure is based largely on company estimates that some state regulators say may be drastically understated.

Tests last year determined the Lafarge North America plant in Alpena was emitting mercury at a rate that could produce 581 pounds annually, about 10 times more than previously reported. Other Michigan cement plants are located in Charlevoix and Dundee.

Cement and chlorine plants are the top producers of mercury in the U.S. manufacturing sector, said Marti Sinclair, chairwoman of the Sierra Club's National Air Committee.

The EPA also set new limits on hydrocarbons - chemical compounds in fossil fuels - that it said would limit emissions by 1,100 tons while helping cut back on sulfur dioxide, another airborne pollutant.

Meeting the mercury and hydrocarbon requirements will cost about $5.4 million for each new kiln, the agency said.

Environmentalists who had sued the EPA for refusing to set mercury standards for the cement industry said by giving existing plants a pass, the new rule doesn't comply with the court orders or the Clean Air Act.

"There's this gigantic problem out there that isn't getting fixed," said Jim Pew, a lawyer with the law firm Earthjustice in Washington, D.C. "What we're really looking at here is an agency which thinks it's completely above the law."

Earthjustice is considering its legal options, Pew said.

Keith Barnett, the EPA's lead engineer for the rule, said: "We do believe we've satisfied the court ruling."

Cement manufacturers bake raw materials such as limestone, clay, sand and iron ore in rotating kilns at temperatures up to 3,000 degrees Fahrenheit. Once cooled, the mixture is combined with gypsum.

Mercury comes from the ingredients and fuels used to heat the kilns, primarily coal.

The U.S. Court of Appeals for the District of Columbia Circuit told the EPA in 1999 to consider cement kiln emission standards for mercury, hydrogen chloride and hydrocarbons. After the agency failed to produce a mercury rule, Earthjustice won another court order in 2004.

Barnett said the agency concluded that cement producers already met minimum requirements and decided against ordering them to go further, which could mean costly and disruptive changes in raw materials or fuels.

Many plants were built long ago in locations where there was abundant limestone, the chief ingredient in cement, Barnett said. "They can't go out and find another limestone quarry somewhere" if the local supply is found to have elevated mercury levels, he said.

Pew said the clean air law doesn't make the EPA responsible for deciding how companies would meet the requirements.

"Congress just wanted a standard reflecting the actual emissions levels that the best performing kilns were achieving," he said. "It would be up to the kiln owners to figure out how to match that."

The only requirements of existing plants under the new rule are to make sure kilns operate properly and to avoid using kiln dust with excessive mercury as a raw material.

The rule also prohibits making cement with fly ash from electric power plants that use certain emission controls likely to boost the ash's mercury content. But those controls are still experimental, so the requirement again wouldn't apply to existing cement producers.

State officials say the Lafarge plant's mercury emissions jumped after it began using fly ash from a Canadian power generator in the 1990s.

EPA Rule Could Increase Mercury Pollution In Montana

By Joe Kerkvliet, Guest Writer, 1-19-07
New West Bozeman

In December, the Environmental Protection Agency completed new rules governing mercury emissions by the nation's 94 cement producers. The EPA will now strictly control mercury emissions for new and future plants, but it will exempt, or “grandfather,” currently operating plants from the new rules. By grandfathering, EPA is essentially granting a license to existing cement plants, including one in Three Forks and one in Montana City, to emit mercury forever without paying for the pollution controls required of new plants.

Mercury is a potent neurotoxin linked to many health problems, including defects in newborns, mental disturbances, and autism. Mercury contaminates many Montana streams and lakes, and Montana Fish Wildlife and Parks has issued statewide fish consumption guidelines because of high mercury content in some larger sport fish.

Grandfathering bad policy

EPA's grandfathering is bad policy because it tilts the playing field in favor of existing plants. By doing so, EPA fails to regulate the largest sources of mercury emissions in the cement industry. Worse, the grandfathering rule will probably result in more mercury emissions than no rule at all.

There are four reasons to expect this perverse result. First, EPA estimates that existing plants, with their annual mercury emissions of 13,200 pounds, will have a cost advantage of 1 percent to 7.2 percent over new plants.

To retain this advantage, existing plant owners have incentives to keep their plants open longer than they would otherwise. A similar EPA rule governing electric power plants has kept older, more polluting power plants in operation 10 or more years beyond their normal life span.

Second, the existing plants' cost advantage will retard construction of new, less polluting, more efficient plants. Why would investors build new plants when they will be saddled with millions of dollars in pollution control costs not borne by existing plants? Yet if newer plants were built, they would be less polluting because of improved technology and easier installation of pollution control equipment. EPA estimates that just five new cement plants, if they replaced existing plants, would reduce mercury emissions by 1,300 to 3000 pounds.

Third, owners of multiple plants, including some subject to the EPA's new rules, will shift cement production away from new plants toward the relatively low-cost, but more polluting, older plants.

Spurring more litigation

Finally, EPA's grandfathering rule will likely discourage plant owners from modernizing their existing plants. When owners of a grandfathered plant consider investments in maintenance and modernization, they must first negotiate EPA's reconstruction review. EPA uses the review to determine whether the investments will push the plant over the line between a grandfathered plant and a new plant subject to stricter pollution controls. With millions of dollars at stake and the prospect of lengthy review, some investors are discouraged from making new investments.

When considering a similar EPA review process for other types of pollutants, the 2003 Economic Report to the President suggests that the prospect of review “might lead firms to delay or forgo plans to modernize their facilities in ways that could benefit the environment.”

A 2004 published study of New York manufacturing plants finds that the EPA's review requirements have retarded investments, resulting in more, rather than less, pollution.

Another unintended but sadly inevitable result of grandfathering is to make environmental regulation increasingly litigious. Reconstruction review is part and parcel of grandfathering because of the need to distinguish between grandfathered and new plants.

With thousands of ways of modernizing plants, this distinction will always contain legal ambiguities, setting the stage for lengthy, rancorous and expensive legal battles. Evidence clearly suggests that mercury is destructive to human and ecological health.

Recent evidence suggests that cement plants are a significant source of mercury emissions and EPA is doing the right thing in developing strategies to control emissions. However, states like Montana can set higher standards and should resist EPA's grandfathering policies and encourage rules that apply equally to all cement plants. Otherwise, the new rule may be worse than no rule at all.

EDITOR'S NOTE: Joe Kerkvliet, of Bozeman, is an economist for The Wilderness Society, specializing in environmental, natural resource and ecological economics.