Clean Water Advocacy - Newsroom - AMSA in the News
Inside EPA
Federal, New Jersey Plan For Strict Mercury Standards Draws Industry Fire
A landmark plan by New Jersey officials to develop stringent water quality
criteria for protecting wildlife from mercury is drawing criticism from
wastewater treatment and petroleum industry officials, who fear its development
sets a dangerous precedent that other states will adopt.
The proposed criteria is the first of its kind outside the Great Lakes, though
the proposal's 0.53 parts per trillion (ppt) is more than twice as stringent as
the current most stringent level set in EPA's Great Lakes Water Quality
Initiative (GLI) of 1.3 ppt.
Environmentalists say they are not familiar with the New Jersey proposal, but
one environmentalist says that .53 ppt "is certainly the lowest [level] I've
ever heard of."
However, industry officials are strongly criticizing the proposed criteria,
charging they are unlawful, overly stringent, unnecessary, not based on sound
science and will result in significant economic impacts without reciprocal
overall environmental benefits.
The New Jersey Petroleum Council (NJPC) also charges in its Feb. 14 comments
that the criteria will generate more mercury loading to the environment than
would be removed because the technologies necessary for complying with the
criteria require such high levels of energy that they would boost mercury
emissions.
The New Jersey Department of Environmental Protection's (DEP) new proposed
criteria, which also include levels for PCBs and DDT, seek to replace water
quality standards adopted by the state in 1993. While those standards won EPA
approval, the Fish and Wildlife Service (FWS) rejected them, charging they
failed to protect a number of threatened and endangered species, including bald
eagle, peregrine falcon and dwarf wedgemussel.
An interagency panel, consisting of EPA, FWS and DEP, was then formed to develop
criteria for PCBs, DDT and mercury to protect these threatened and endangered
species.
The interagency panel used methodologies first developed by EPA for use in
developing water quality criteria for pollutants in the Great Lakes, ultimately
arriving at criteria that are more stringent than those developed by the GLI.
DEP explains the difference in protective levels by pointing out that the New
Jersey criteria factored in the physical characteristics of the peregrine
falcon, and its "ecological niche as an upper trophic level predator" which
combine to increase the falcon's susceptibility to bioaccumulative toxics.
But NJPC argues that use of these methodologies is unlawful because Congress, as
part of the Clean Water Act (CWA), only authorized EPA to develop such wildlife
criteria for the Great Lakes. In fact, they note that federal courts have
limited efforts to extend the GLI beyond the Great Lakes Basin and point out
that EPA has so far failed to follow through on a 1998 notice seeking comment on
plans to develop nation-wide wildlife criteria.
NJPC charges that EPA and FWS unlawfully relied on the Endangered Species Act (ESA)
to justify the need for wildlife criteria. "Neither the CWA nor the ESA
authorize such federal intervention into state action," their Feb. 14 comments
say, noting that federal courts have delineated state and federal roles under
both statutes and EPA may not condition state programs on ESA requirements. FWS
should be held to the same standard, they say.
The group also says that setting stringent new wildlife criteria for threatened
and endangered species at a time when those populations are increasing sets a
dangerous precedent.
The Association of Metropolitan Sewerage Agencies' (AMSA) Feb. 14 comments
concur with NJPC's conclusion that treating discharges down to a level of .53
ppt is virtually impossible and would be cost-prohibitive. In its comments, AMSA
urges DEP to conduct an analysis of the attainability of the criteria in New
Jersey waters as well as an analysis of the costs to regulated dischargers
associated with complying with effluent limitations based on the criteria.
One publicly owned treatment works source says that dischargers nationwide are
concerned about the mercury criterion, because there is a fear that other states
may develop similar criteria -- or may be forced into a similar situation by the
FWS.
A petroleum industry source says that every industrial discharger is "alarmed"
by the mercury criteria, saying that "it is impossible" to comply with.
Date: February 20, 2003
© Inside Washington Publishers