1. Starting in 1990 and continuing through the present, outline the major steps that EPA has taken under the Clean Air Act to control mercury emissions from coal-fired power plants. (1 or 2 paragraph answer)

Answer outline: The chronology provided below focusses on the events leading to the Clean Air Mercury Rule of March 2005, and subsequent litigation, and I would regard this as a complete answer. Alternatively, you could answer by focussing on the ongoing New Source Review litigation that Kevin Leske discussed in his visit.

Mercury Chronology

1990. CAA Amendments. (1) 1970 Amendments resulted in only 8 HAPs being listed prior to 1990, using health-based criteria. (2) 1990 Amendments listed 188 HAPs under section 112. (3) Even though the HAPs themselves were listed by statute under section 112, EPA still was required to list sources for these HAPs. (iv) Special provisions of 112(n).

1990s. Rules to control mercury from various types of incinerators. These were not subject to the special provisions of section 112(n).

1997. "Mercury Study Report to Congress," written by EPA. See section 112(n).

1998. "Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units" (aka Utility Air Toxics Study), also written by EPA. See section 112(n).

1998. Settlement agreement in NRDC v. EPA. See Garcia (2004) for details of deadlines set by the settlement agreement.

2000. "Toxicological Effects of Methylmercury," written by National Academy of Science. We have looked in some detail at several of the key scientific papers underlying this methylmercury risk assessment.

Dec. 2000. Final rule listing coal-fired power plants as a mercury source under section 112. This was a regulatory "time bomb" left by the outgoing Clinton administration.

Dec 2003 (Jan. 2004). Draft rules to regulate mercury emissions from coal-fired power plants under sections 112 and 111.

March 2005. Final rule to regulate mercury under section 111, using a cap and trade program ("Clean Air Mercury Rule"). A second rule withdraws the Dec. 2000 rule listing coal-fired power plants under section 112.

Fall 2006. Litigation in New Jersey v. EPA held in abeyance, to allow EPA to reconsider parts of the March 2005 rule.

2. What are the major differences between the Dec. 2003 proposed Clean Air Mercury Rule and the March 2003 final rule? (1 sentence to 1 paragraph answer)

Hint: See Garcia (2004) for a summary of the proposed rule. Note that the final rule does not rely on section 112.

3. The March 2005 Clean Air Mercury Rule, if it survives litigation, will institute a cap and trade program for mercury under section 111 of the Clean Air Act. Explain exactly where in section 111 of the Clean Air Act EPA finds statutory authority for this cap and trade program. (I realize that many of you are of the opionion that, in fact, EPA has no statutory authority to institute this cap and trade program. Note that the question asks EPA's rationale, not your critique of their rationale.) (1 paragraph answer)

4. Why was EPA able, under section 112 of the Clean Air Act, to control mercury emissions from incinerators more quickly than from coal-fired power plants? (one or two sentence answer)

Answer: Before EPA could regulate mercury under section 112, they were required by statute to complete several studies, and these took years to complete. No such studies were required before EPA could regulate incinerators. (There are certainly other correct answers. But this one is definite, well supported by the evidence, and was mentioned in class.)

5. Most existing chlor-alkali plants in the United States use an ion-exchange membrane technology that uses no mercury to separate chlorine gas and sodium hydoxide base. All new chlor-alkali plants use this technology, and it is clearly more cost-effective than the old electrolysis technology that requires considerable mercury. Yet a handful of the old electrolysis plants continue to operate, and EPA has not required them to upgrade to the newer membrane technology. Why and how have the owners of the old electrolysis chlor-alkali plants escaped effective MACT regulation under section 112 of the Clean Air Act? (1 or 2 sentence answer)

6. Are mercury emissions from coal-fired power plants currently a listed source category under section 112 of the Clean Air Act?

Answer hint: No. See mercury chronology above for an explanation.

7. Is mercury currently listed as a Hazardous Air Pollutant under section 112 of the Clean Air Act? Explain, in light of your answer to the previous question.

Partial answer and hint: Yes. Note that section 112 makes a distinction between listing a HAP, and listing a source category.