[Senate Hearing 110-1249]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 110-1249
 
                     HEARING ON MERCURY LEGISLATION 

=======================================================================

                                HEARING

                               before the

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 13, 2008

                               __________

  Printed for the use of the Committee on Environment and Public Works

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                            congress.senate

                               __________

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

                          TUESDAY MAY 13, 2008
                           OPENING STATEMENTS

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     1
Voinovich, Hon. George, U.S. Senator from the State of Ohio......     3
Lautenberg, Hon. Frank, U.S. Senator from the State of New Jersey     6
Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     7
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................     8
Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland, 
  prepared statement.............................................    33
Obama, Hon. Barack, U.S. Senator from the State of Illinois, 
  prepared statement.............................................   223

                               WITNESSES

Meyers, Robert J., Principal Deputy Assistant Administrator, 
  Office of Air and Radiation, U.S. Environmental Protection 
  Agency Accompanied By: James Gulliford, Assistant 
  Administrator, Office of Prevention, Pesticides and Toxic 
  Substances.....................................................    10
    Prepared statement...........................................    12
Jackson, Lisa P., Commissioner, New Jersey Department of 
  Environmental Protection.......................................    38
    Prepared statement...........................................    41
Responses to additional questions from:
    Senator Carper...............................................    58
    Senator Boxer................................................    60
    Senator Inhofe...............................................    62
Durham, Michael D., President and CEO, ADA Environmental 
  Solutions......................................................    65
    Prepared statement...........................................    67
Benson, Steven A., Senior Manager, Energy and Environmental 
  Research Center, University of North Dakota....................    82
    Prepared statement...........................................    84
Levin, Leonard, Ph.D., Technical Executive, Electric Power 
  Research Institute.............................................    93
    Prepared statement...........................................    95
    Responses to additional questions from Senator Inhofe........   105
Patton, Vickie, Deputy General Counsel, Environmental Defense 
  Fund...........................................................   113
    Prepared statement...........................................   116
    Responses to additional questions from:
        Senator Carper...........................................   123
        Senator Boxer............................................   127
        Senator Inhofe...........................................   128
Greer, Linda E., Ph.D., Director, Public Health Program, Natural 
  Resources Defense Council......................................   137
    Prepared statement...........................................   140
Dungan, Arthur E., President, The Chlorine Institute, Inc........   163
    Prepared statement...........................................   165
    Responses to additional questions from:
        Senator Boxer............................................   214
        Senator Inhofe...........................................   217


                     HEARING ON MERCURY LEGISLATION

                              ----------                              


                          TUESDAY MAY 13, 2008

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full committee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Building, Hon. Thomas R. Carper 
presiding.
    Present: Senators Carper, Lautenberg, Cardin, Klobuchar, 
Whitehouse, Voinovich, Barrasso, Craig

          OPENING STATEMENT OF HON. THOMAS R. CARPER, 
            U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Carper. The hearing will come to order. Good 
morning, everyone. We will be joined later this morning by a 
number of our colleagues.
    Our Chair, Senator Boxer, will not be able to attend. She 
has asked me to express her appreciation to those of you who 
have come to join us to testify and respond to our questions. 
She has also left with me a statement that we would ask for 
unanimous consent to be included in the record. Without 
objection, it will be.
    Senator Carper. Today's hearing is focused, as you know, on 
mercury legislation, bipartisan legislation S. 2643, the 
Mercury Emission Control Act, and Senator Obama's legislation, 
S. 906, the Mercury Market Minimization Act of 2007. The 
Senators will have roughly 5 minutes for our opening 
statements, then I will recognize the EPA Assistant 
Administrator who is at the table, Bob Meyers. Following his 
statement, he is going to be joined by one other person from 
EPA for our questions. We will probably have two rounds of 
questions.
    I will then ask for our second panel of witnesses to come 
forward. Their testimony will be followed by one round of 
questions. Finally, our third panel will be invited to the 
witness panel with questions to follow their statements.
    We expect to have a series of votes at 11 o'clock. I think 
we will have four votes, and we will probably be here with 
testimony and questions until about 11:15, and then we will 
recess until we finish our last vote and come right back.
    I expect the hearing will be over before 12:30, and that is 
certainly our goal.
    Mercury pollution can be a serious health threat when it is 
released into the air by power plants and settles into the 
oceans and into our waterways where it accumulates in fish and 
animal tissue. Children and women of child-bearing age are most 
at risk.
    Studies show that 1 in 17 women of child-bearing age have 
mercury in their blood at levels that could pose a risk to 
their unborn children. In 2005, EPA went against the mandates 
of the Clear Act and finalized the flawed Clean Air Mercury 
Rule. This regulation ignored Federal law. It did not go far 
enough to protect the health of America's vulnerable 
populations.
    On February 8th, 2008, a Federal court rejected the Bush 
administration's Clean Air Mercury Rule. The U.S. Circuit Court 
of Appeals for the District of Columbia ruled that EPA failed 
to fulfill its obligations under Section 112 of the Clean Air 
Act because the rule established a weak cap and trade program 
which would allow many power plans to avoid installing any 
mercury controls at all.
    In its decision, the court said EPA's mercury rule was 
based on ``the logic of the Queen of Hearts, substituting the 
EPA's desires for the plain text of the law.'' Americans have 
waited too long for mercury pollution to be addressed. The EPA 
must now act quickly to implement pollution requirements that 
are absolutely necessary to protect American lives. We know 
that cost-efficient, practical technology is available today to 
regulate mercury emissions from power plants. I have requested 
an update to the May 2005 GAO report that reviewed emerging 
mercury control technologies to document this.
    On February 15th of this year, I introduced bipartisan 
legislation to help protect Americans from the harmful effect 
of mercury pollution. The Mercury Emissions Control Act would 
require the U.S. Environmental Protection Agency to issue new, 
stronger rules to control mercury emissions from power plants 
as required by the Clean Air Act. Our legislation, which has 11 
bipartisan co-sponsors, would require EPA to propose a 
regulation of hazardous air pollutants from power plants as 
originally prescribed by the Clean Air Act. The legislation 
would also require reduction of mercury pollution by at least 
90 percent, I believe by 2015 or 2016.
    Our Mercury Emissions Control Act would also require that 
mercury controls be installed at every coal-fired plant in 
America that needs them.
    Although the focus of today's hearing is mercury, as we 
move closer to a floor debate on global warming, we must 
consider many pollutants that threaten our health and our 
environment. When dealing with air pollution from power plants, 
it makes sense to address all the pollutants at the same time, 
whether it is ozone-forming nitrogen oxide, asthma-causing 
sulfur dioxide, toxic mercury emissions or global warming 
causing CO2, they all come out of the same smoke stack. By 
addressing all four pollutants as a system, power plants will 
have the flexibility and regulatory certainty needed to plan 
for the most cost-effective control strategy.
    Our witnesses today will testify about the State of mercury 
control technology, about health effects and the need for 
strong regulation, as well as progress that States are making. 
Ms. Lisa Jackson from New Jersey has joined us today. In 
addition, I received a compelling letter from Douglas Scott, 
who is the director of the Illinois EPA, supporting our mercury 
bill and discussing efforts that his State, Illinois, is making 
to reduce mercury pollution. Without objection, I will ask that 
that letter be entered into the record.
    [The referenced material was not received at time of 
print.]
    Senator Carper. We are grateful to all of our witnesses 
that are here today and we look forward to your testimony.
    With that having been said, let me turn to Senator 
Voinovich for his opening statement. Then we will come to 
Senator Lautenberg and Senator Barrasso.

          OPENING STATEMENT OF HON. GEORGE VOINOVICH, 
              U.S. SENATOR FROM THE STATE OF OHIO

    Senator Voinovich. Thank you, Mr. Chairman.
    I would like to mention that Senator Inhofe would be here 
today, but he is traveling back to Oklahoma with Secretary 
Chertoff to review the tornado damage in northeast Oklahoma.
    I want to thank the witnesses for taking time out of their 
busy schedule to testify today. I have long supported 
decreasing mercury missions and sponsored the Clear Skies Act, 
which would have cut emissions by 70 percent, and was 
supportive of the Administration rulemaking effort which set up 
the Clean Air Mercury Rule. I think we are the first country in 
the world to set up recommendations in terms of mercury.
    Both Clear Skies and CAMR sought to usher in phased 
reductions in mercury emissions in a manner that was consistent 
with the development of control technologies. The first phase 
of reductions leveraged what is referred to as co-benefit 
reductions from what may be achieved through the implementation 
and application of control technologies to reduce sulfur and 
NOx. The second phase ushered in control 
requirements that would require mercury-specific controls, 
activated carbon injection, for example.
    Now the D.C. Circuit has vacated CAMR. We are again faced 
with the question of what is the appropriate level of control 
for mercury emissions. When we debated mercury controls 
previously, reasonable people disagreed as to what technology 
could deliver. There was significant concern that while certain 
technologies would work well for certain coal types, other coal 
types, particularly lower-ranked coals, were more difficult to 
control. The Administration finalized a trading program in part 
because it allowed sources flexibility in meeting aggressive 
compliance obligation should technologies fail to deliver as 
promised.
    The bill we now consider, the Emissions Control Act, amends 
the Clean Air Act and requires a 90 percent reduction in 
emissions of mercury from new and existing power plants. As I 
understand the legislation, this is a source-specific control 
requirement. There is no flexibility in meeting the 90 percent 
reduction requirement.
    Now I understand that good progress has been made in 
advancing mercury control technologies, and I would be 
interested in hearing more about it today. However, it doesn't 
sound as if all the technology challenges have been resolved. 
As with the previous debate, the experts before us disagree 
about what technology can deliver. It is less than clear that a 
90 percent requirement can be met on a consistent, reliable 
basis for all plants, particularly older facilities. Indeed, 
given the wide range of coal types and plant configurations, it 
seems that Congress, acting too broad to apply aggressive 
mercury control requirements is something that is inadvisable 
from a national policy perspective.
    Section 112 of the Clean Air Act lays out a process for the 
EPA to establish technology-based standards for new and 
existing sources of hazardous air pollutants. This process 
allows for a detailed review of available control technology 
and provides that control requirements be applied based on what 
is achieved in practice. Importantly, the Clean Air Act 
provides that separate standards may be established for sub-
categories of sources. For example, the different coal types 
prove more difficult to control and provides for the adoption 
of less stringent requirements for existing sources.
    The bill we now consider does not provide even this modest 
flexibility. Moreover, the bill preempts expert agency judgment 
concerning what technology can deliver. In the absence of 
legislation that provides for more flexible compliance 
requirements I believe we should allow the agency experts to 
follow the existing Clean Air Act, which provides for a 
thorough technical review of mercury control technologies 
before a determination is made concerning the appropriate level 
of control. I do not believe that we should arbitrarily impose 
our determination of what is achievable, no matter how well 
intended.
    And two final points. First, as in the debate in 2004, 
little regard has been paid to the impact a 90 percent MACT 
would have on our Nation because coal plants unable to attain 
it would be shut down. This would result in fuel switching away 
from coal to natural gas. Increased reliance on natural gas for 
electricity generation will further increase prices, seriously 
impacting the ability of businesses to compete in the global 
marketplace and a family to pay their utility bills. I can say 
that regardless of what we do, we are going to see increased 
costs of natural gas in this Country.
    But the increased costs may be worth it if a 90 percent 
mercury reduction was expected to provide significant public 
health benefits beyond those derived from the EPA's now-vacated 
rule. EPA estimated the cost of its cap and trade rule at about 
$2 billion. In 2005, the Energy Information Administration 
projected the costs for 90 percent MACT standard as high as 
$358 billion with an average increase in national electricity 
prices of 20 percent. The additional reduction in U.S. mercury 
disposition was projected to be just 2 percent, an almost 
immeasurable decline in people's exposure to mercury.
    Because these numbers are not dated, however, I would ask 
Senator Carper if we might have EPA run an economic analysis of 
this legislation before we move to a Committee vote. As with 
all legislation we consider, I believe we need to have a sense 
of the costs it will impose on society before we proceed.
    I have run out of time and I will ask that the rest of my 
statement be put into the record. But I have to say, Senator 
Carper, that we passed out one of the most significant pieces 
of legislation several months ago dealing with climate change. 
I insisted at that time that we ought to have an EPA evaluation 
and an Energy Information evaluation. We didn't have it. Didn't 
have it. Went ahead and passed it out. And now the information 
is coming in, and it is pretty devastating in terms of its 
impact on the Country.
    It seems to me we would have been far better off if we had 
had that information before we shoved the legislation out of 
committee, so that maybe we might have made some adjustments in 
it to respond to those numbers. So I think when you are dealing 
with this kind of legislation, let's figure out what impact it 
is going to have. Is 70 as good as 90? If it is not, then let's 
see what health benefits would go from 70 to 90. Again, 
harmonizing our environment, energy and our economy.
    Thank you.
    [The prepared statement of Senator Voinovich follows:]

           Statement of Hon. George Voinovich, U.S. Senator 
                         from the State of Ohio

    Thank you Madame Chair for calling this hearing today on 
the Mercury Emissions Control Act. And thank you to the 
witnesses who have taken time from their schedule to testify 
today. I have long supported decreasing mercury emissions--I 
sponsored the Clear Skies Act, which would have cut emissions 
by 70 percent, and was supportive of the Administration's 
rulemaking effort which set up the Clean Air Mercury Rule 
(CAMR).
    Both Clear Skies and CAMR sought to usher in phased 
reductions in mercury emissions in a manner that was consistent 
with the development of control technologies. The first phase 
of reductions leveraged what is referred to as ``cobenefit'' 
reductions from what may be achieve through the application of 
control technologies to reduce sulfur dioxide and nitrogen 
oxides. The second phase ushered in control requirements that 
would require mercury specific controls--activated carbon 
injection, for example.
    Now that the DC Circuit has vacated CAMR, we are again 
faced with the question of what is the appropriate level of 
control for mercury emissions. When we debated mercury controls 
previously, reasonable people disagreed as to what technology 
could deliver. There was significant concern that while certain 
technologies would work well for certain coal types, other coal 
types--particularly lower ranked coals--were more difficult to 
control. The administration finalized a trading program, in 
part, because it allowed sources flexibility in meeting 
aggressive compliance obligations should technologies fail to 
deliver as promised.
    The bill we now consider--the Mercury Emissions Control 
Act--amends the Clean Air Act, and requires a 90 per cent 
reduction in emissions of mercury from new and existing power 
plants. As I understand the legislation, this is a source 
specific control requirement and there is no flexibility in 
meeting the 90 percent reduction requirement.
    Now I understand that good progress has been made in 
advancing mercury control technologies--particularly on lower 
ranked coals. However, it doesn't sound as if all the technical 
challenges have been resolved. As with the previous debate, the 
experts before us disagree about what technology can deliver. 
And it's less than clear that a 90 percent control requirements 
can be met on a consistent and reliable basis by all plants--
particularly older facilities. Indeed, given the wide range of 
coal types and plant configurations it seems that Congress, 
acting to broadly apply aggressive mercury control technology 
requirements, is something that is inadvisable, from a national 
policy perspective.
    Section 112 of the Clean Air Act lays out a process for the 
EPA to establish technology based standards for new and 
existing sources of hazardous air pollutants. This process 
allows for a detailed review of available control technologies 
and provides that control requirements be applied based on what 
is achieved in practice. Importantly, the Clean Air Act 
provides that separate standards may be established for 
subcategories of sources (for example, if different coal types 
prove more difficult to control) and provides for the adoption 
of less stringent requirements for existing sources.
    The bill we now consider does not provide even this modest 
flexibility. Moreover, the bill preempts expert agency judgment 
concerning what technology can deliver. In the absence of 
legislation that provides for more flexible compliance 
requirements, I believe we should allow agency experts to 
follow the existing Clean Air Act--which provides for a 
thorough technical review of mercury control technologies 
before a determination is made concerning the appropriate level 
of control. I do not believe that we should arbitrarily impose 
our own determination as to what is achievable, no matter how 
well intended.
    Two final points: First, as in the debate in 2004, little 
regard has been paid to the impact a 90 percent MACT would have 
on our nation because coal plants unable to attain it would be 
shutdown. This would result in fuel switching away from coal to 
natural gas. Increased reliance on natural gas for electricity 
generation will further increase prices, seriously impacting 
the ability of businesses to compete in the global marketplace 
and of families to pay their utility bills.
    But the increased costs may be worth it if a 90 percent 
mercury reduction was expected to provide significant public 
health benefits beyond those to be derived from the EPA's now 
vacated rule.
    EPA estimated the cost of its cap-and-trade rule at about 
$2 billion. In 2005, the Energy Information Administration 
projected the costs for a 90-percent MACT standard as high as 
$358 billion, with an average increase in national electricity 
prices of 20 percent. The additional reduction in U.S. mercury 
deposition was projected to be just 2 percent--an almost 
immeasurable decline in people's exposure to mercury.
    Because these numbers are now dated, however, I would ask 
Senator Carper if we might have EPA run an economic impact 
analysis of this legislation before we move to a committee 
vote. As with all legislation we consider, I believe we need to 
have a sense of the cost it will impose on society before we 
proceed.
    Second, I remind members of this committee that we are set 
to take up S. 2191 on the Senate floor next month. This bill, 
if implemented, would dramatically alter the nation's 
electricity portfolio. Indeed, the Clean Air Task Force 
preformed an analysis that indicated S. 2191 would cut the 
nation's mercury emissions by as much as 82 percent--largely 
because coal would be virtually eliminated from the generation 
mix. While I oppose S. 2191, I don't believe these two bills 
should be viewed in a vacuum. Should S. 2191 be implemented, 
it's unclear why this legislation is necessary.
    With regard to S. 906, the Mercury Market Minimization Act 
of 2007, I am particularly concerned as the Senate bill does 
not propose a specific means to address the long term storage 
and responsibility for the expended mercury inventory from the 
private sector. Instead it proposes the creation of an entity 
that will study the issue before proposing a solution. The bill 
reported out of the House, H.R. 1534, by contrast, requires the 
Department of Energy to accept the mercury inventory, be paid 
for doing so, and then indemnifies the contributing company 
against future claims.
    I also have concerns regarding the bill's definition of 
``elemental mercury.'' If mercury is found in a material, such 
as coal, is coal then banned from export? I believe a provision 
should be added that excludes materials that naturally contain 
trace amounts of elemental mercury. Finally, I believe we 
should require a report after several years that the ban on the 
export of mercury has resulted in no harm to our industries and 
our economy and had no unintended consequences.
    None of these deficiencies are in the House version of this 
legislation, which I believe S. 906 should be amended to 
conform to.
    Senator Carper. I would be happy to discuss it further with 
my friend. I would just ask us to remember that it was, I think 
about 3 years ago, that EPA, after a lot of pushing and 
encouraging, actually modeled several multi-pollutant bills, 
including the one that a number of us introduced many years ago 
that included sulfur dioxide, nitrogen oxide, mercury and CO2. 
But I would be pleased to discuss it with you. Thanks.
    Senator Lautenberg.

 OPENING STATEMENT OF HON. FRANK LAUTENBERG, U.S. SENATOR FROM 
                    THE STATE OF NEW JERSEY

    Senator Lautenberg. Thanks, Mr. Chairman. I want to commend 
you for your introduction of a bill to reduce the presence of 
mercury in our communities and throughout our Country.
    While I have great respect for our colleague from Ohio, I 
kind of looked at these problems from the back end forward and 
questioned what it is that we want to do. It may alter the 
costs from the costs of a life, of a child's inability to 
function properly because of a neurological disturbance, it may 
affect the health and well-being of a new child. So I say, 
well, how do you measure that human cost with a dollar cost?
    And I think there is a distinct difference in the view. 
Mercury, we know, is a proven threat to our health, even in low 
doses. Mercury can permanently affect a child's development. 
And in adults, chronic exposure to mercury can cause vision 
loss, contribute to heart disease, among other ailments. With 
such clear and severe health risks that no scientist or doctor 
disputes, we should have strong laws, strong as we can take, to 
protect our residents. But as it has so many times, the Bush 
administration fails to protect the health of the public or our 
environment.
    In 2005, the EPA overturned the requirement for all of 
America's power plants to upgrade their technology to the best 
emission control available. The EPA also created a cap and 
trade system to reduce mercury emissions at power plants. Cap 
and trade works in the fight against global warming. But it 
does not work in the fight against mercury emissions.
    If you live in a community near a coal-fired plant that 
buys its way out of mercury regulations, you pay the cost with 
increased mercury in the food you eat and the water you drink. 
It is not just communities in the immediate area around the 
power plants that are affected. Studies show that emissions 
from coal-fired power plants in the Midwest affect residents in 
the Northeast, including my State of New Jersey and the 
Chairman's State of Delaware.
    New Jersey is one of the Nation's leaders when it comes to 
environmental law. But New Jersey's laws are being undermined 
by the Bush administration's weak environmental policies that 
affect the Country as a whole. Thankfully, the courts decided 
common sense was in order and overturned the Administration's 
policy. To me, this is one more chapter in an ongoing story 
that we have seen from this EPA. It forgets its mission and 
neglects public health. From greenhouse gas emission to toxics 
to mercury, the courts have stepped in and set things right 
where the Administration went wrong.
    After the court decision, Senator Carper introduced a bill 
to require major mercury reductions at our Nation's power 
plants. I am a co-sponsor, I am proud to be a co-sponsor of 
this legislation, which would protect the health of residents 
who are affected by power plant emissions. And I look forward 
to working with my colleagues on this Committee to set things 
right and pass the Carper bill.
    Thank you, Mr. Chairman.
    Senator Carper. Senator Lautenberg, thank you very much for 
your statement and for your strong support.
    Senator Barrasso.

OPENING STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman.
    Mr. Chairman, we must protect our environment, and we must 
do so while ensuring that our Nation is powered into the future 
and has adequate power. Over the last few decades, our Nation's 
air has dramatically improved. Those are the effects of 
environmental laws enacted by Congress. They have been very 
positive. Over the last 36 years, carbon monoxide emissions 
have fallen dramatically, nitrous oxide emissions have fallen 
dramatically, as has sulfur dioxide. Particulate emissions are 
down 80 percent, lead emissions are down.
    Should we do more? Certainly. There is always room for 
improvement. Health issues associated with atmospheric mercury 
have been identified. The accumulation of mercury in fish is a 
recognized problem.
    My concern with the Mercury Emission Control Act are the 
findings that State that we can reduce coal-fired power plant 
mercury emissions by 90 percent by the year 2010. And the 
technology is just not there----
    Senator Carper. Senator Barrasso, it is by 2015.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    I want to make sure that the technology is there to do the 
sorts of things that we talk about, because the EPA estimates 
that removal technologies still need to be advanced. So what 
happens if we try to go too fast? Well, power plants could 
reduce mercury emissions by switching from one type of coal to 
another. And the switch would be from low sulfur coal to high 
sulfur coal. But with that switching, other pollutants are 
going to rise, so we will have more sulfur dioxide and nitrous 
oxide and less mercury. You can't get them all out at the same 
time. The technology is not there to do it.
    Some generators may switch from coal to natural gas. There 
is a GAO study, and I would like to introduce this as part of 
the record, Mr. Chairman, that says that the ability of U.S. 
electricity-generating units to switch from coal to natural gas 
is limited, and fuel switching could cause adverse economic 
consequences. Wyoming is a major supplier of natural gas. So 
something like this can help Wyoming's natural gas economy, but 
it won't help families and businesses in other parts of the 
Nation who are saddled with high energy costs.
    The concern continues, Mr. Chairman, that to me, we need to 
continue with the technology. Coal is our best domestic energy 
source. We need to make this industry stronger and yes, 
cleaner, but we need to have the technology to be able to do 
those things, which is going to involve an additional 
investment on the part of our Nation.
    Thank you, Mr. Chairman.
    Senator Carper. Thank you, Senator Barrasso.
    Senator Whitehouse, welcome.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chairman. Good to be here 
with you.
    Really, I think, Mr. Chairman, for as long as there have 
been Americans, there have been dads who took their sons 
fishing. It was kind of an emblematic thing. You can imagine 
the Norman Rockwell picture. And for the first time in any 
generation, we are in a situation now where that is not really 
feasible any longer, because the fish that the sons and 
daughters may catch is polluted with mercury in many places to 
the point where it is no longer safe to eat.
    That is a significant piece of thievery, if you will, from 
the American experience. And it is unnecessary. And States like 
mine can do very little about it. We are in the same position 
that Senator Lautenberg's State of New Jersey is. We can 
legislate all we want, but what rains in on us from Midwestern 
power plants has profound health effects in Rhode Island. And 
we don't have the power as a single State to regulate what 
happens elsewhere in the Country. That is why we count on the 
Environmental Protection Agency.
    That is why it is so frustrating to see an Environmental 
Protection Agency that doesn't take its duty seriously, where 
the courts over and over again have to knock them up side the 
head and say, come on, get this right. It was this mercury 
issue that caused the court to describe the Queen of Hearts 
logic from Alice in Wonderland that the agency was applying in 
order to delay applying technically feasible protections that 
help Americans, that help our lakes, that help our fish. But 
because they weren't welcomed by industry, this EPA simply 
wasn't serious about them. And it is very frustrating.
    So I am very glad to join, Mr. Chairman, the Carper 
legislation and be here to hear about it and show my support, 
and to join Senator Lautenberg, who has such a long and 
distinguished record of fighting for the safety of Americans 
from various toxic contaminants. To be here with the two of you 
makes me very proud. I will end it there.
    Senator Carper. We are honored to have you joining us and 
welcome your support.
    I want to go back to a point that Senator Barrasso made 
earlier with respect to the date by which we expect reductions 
of roughly 90 percent to have been achieved. Under the Clean 
Air Planning Act, which is a separate piece of legislation, it 
is multi-pollutant legislation, which involves sulfur dioxide, 
nitrogen oxide, mercury and CO2, that legislation requires a 90 
percent reduction overall in mercury emissions by 2015.
    The legislation that is before us today, if passed, if 
signed into law, would require EPA to promulgate by the end of 
this year, I believe, a proposed rule for consideration. That 
proposed rule would then be finalized some time, I presume, 
next year. I believe that power plants would have as many as 3 
years to actually install the technology.
    So we are not talking as late as 2015, but it would be 
somewhere between 2011 and probably 2014.
    Senator Barrasso. Thank you for that clarification, Mr. 
Chairman. Because in the findings of the bill, it does say 
feasible by calendar year 2010, using current methods. It is my 
understanding from all my research that the current methods are 
not there to have something feasible in 2010.
    Senator Whitehouse. We will have an opportunity to hear 
from some folks later today who are going to talk to us about 
how feasible it is to do it now or in 2010 or 2015.
    Senator Barrasso. Thank you, Mr. Chairman.
    Senator Carper. We have been joined at the table today by 
our Assistant Administrator from EPA. I want to thank Mr. 
Meyers for joining us. You have been here before. We will ask 
you, I think you may have someone join us for Q&A. We may take 
as many as two rounds for your testimony and for Q&A.
    We welcome you. We will ask you to keep your comments close 
to 5 minutes. If you go a little beyond that, it is all right. 
You are recognized at this time. Your full statement will be 
made a part of the record.

   STATEMENT OF ROBERT J. MEYERS, PRINCIPAL DEPUTY ASSISTANT 
ADMINISTRATOR, OFFICE OF AIR AND RADIATION, U.S. ENVIRONMENTAL 
 PROTECTION AGENCY ACCOMPANIED BY: JAMES GULLIFORD, ASSISTANT 
   ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES AND TOXIC 
                           SUBSTANCES

    Mr. Meyers. Thank you. I appreciate the opportunity to 
discuss the important issue of reducing mercury emissions and 
public health and environmental risks that such emissions 
present. With me today, as you have noted, is Jim Gulliford, 
who is the Assistant Administrator for the Office of 
Prevention, Pesticides and Toxic Substances.
    Overall, for important public health and environmental 
reasons, EPA remains committed to achieving mercury emission 
reductions. Over the past two decades, EPA has issued a number 
of regulations to control mercury emissions from large sources. 
These includes standards for waste combustion, medical 
incinerators, chloralkali plants, industrial boilers and other 
sources.
    EPA has also initiated other efforts to control mercury 
emissions through innovative means. In August 2006, the agency 
announced a program to retrieve mercury switches from 
automobiles before they were shredded and melted. This program 
removed its millionth switch this past February.
    The agency is additionally focusing efforts on 
international emissions through the Global Mercury Partnership. 
I think it bears repeating, as was mentioned earlier, that when 
EPA promulgated the CAMR rule in March 2005, the U.S. became 
the first country in the world to permanently reduce and cap 
mercury emissions from coal-fired power plants. CAMR built upon 
EPA's Clean Air InterState Rule and when fully implemented, as 
mentioned also, the rules would reduce mercury emissions from 
approximately 48 tons a year to 15 tons.
    Under the cap and trade system utilized by CAMR, emissions 
were capped permanently and nationwide. The trading program 
provided a continuous incentive for technology innovation and 
flexibility for compliance by the power sector while retaining 
requirements at new plants also meet new source performance 
standards. CAMR additionally included rigorous continuous 
mercury emissions monitoring provisions which reflected the 
State of the science. EPA worked through an intensive 
cooperative effort and consensus among diverse stakeholders to 
advance and upgrade the quality of emissions, measurement and 
monitoring.
    Over the last 3 years, EPA and the States have made 
considerable progress in implementing CAMR. By February 2008, a 
total of 34 States had submitted plans for approval and most of 
the rest required State plans were in development. At the same 
time, the power industry was deploying mercury-specific control 
technology and so by the beginning of 2008, the industry had 
already installed activated carbon injection systems on 
approximately 2.7 gigawatts of coal-fired capacity.
    As mentioned also, on February 8th of this year, a three-
judge panel of the D.C. Circuit Court of Appeals vacated CAMR 
and related Section 112(n) revision rule. Following the 
decision, on March 14th, the Court issued its mandate which 
caused the vacatur of CAMR and related 112(n) revision rule to 
take effect. While EPA respects the District Court's decision 
in this matter, we fundamentally disagree with the Court's 
opinion.
    Therefore, on March 24th, the Department of Justice filed a 
motion for rehearing en banc bond, asking the full Court to 
reconsider the three-judge panel's decision. In presenting our 
arguments for rehearing, EPA points to the absurd result 
occasioned by the three-judge panel's interpretation of the 
Clean Air Act. If the decision stands without revision, it 
would result in a rulemaking the agency previously determined 
through notice and comment rulemaking not to be appropriate and 
necessary. Moreover, challenge to the initial 2000 listing 
decision could occur only after such rulemaking was finalized.
    Turning to legislation, the Mercury Emissions Control Act 
amends the Clean Air Act to require EPA to propose Section 
112(d) MACT regulations. As mentioned, these regulations would 
be due to be proposed within 180 days of enactment or no later 
than October 1st of this year. The bill further specifies that 
any final regulations promulgated by EPA attain the pre-
determined result of reducing mercury emissions from new and 
existing utility steam generating units by not less than 90 
percent.
    My written testimony indicates that the Administration does 
not have a formal position on legislation but notes 
difficulties we have with the current construction of the bill.
    Turning to S. 906, the Mercury Market Minimization Act, Mr. 
Gulliford will be available for questioning on this 
legislation. I would note the Administration has already issued 
a statement of Administration policy on H.R. 1534, stating the 
legislation is premature, pending further analysis of the main 
issues raised by such a ban. While there are some differences 
between the House and the Senate bills, the issues raised by 
the SAP are also relevant to the Senate bill.
    In general, we regard S. 906, it is our view there is 
inadequate understanding of the potentially negative 
consequences of an export ban on the environment, industry, 
both domestic and international, and the Federal Government. A 
ban would also prompt questions under international trade 
rules.
    I would cut my remarks short at this point in time to 
respect the 5-minutes and then be available to address 
questions concerning S. 2643 and invite Mr. Gulliford to 
address questions regarding S. 906.
    [The prepared statement of Mr. Meyers follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Carper. Mr. Gulliford, you are welcome to join us 
at the table. Thank you for your presence today.
    Mr. Meyers, in the Clean Air Act, Congress asked EPA to 
determine if power utilities should be regulated under Section 
112, the Air Toxics program. In 2000, the EPA came to us with a 
resounding yes. Utilities are a major source of hazardous air 
pollutants, specifically they mentioned mercury, and should be 
regulated with the maximum achievable control technology.
    Five years later, the EPA changes its mind to remove 
utilities from the program. Could you just start off by 
explaining the rationale for this?
    Mr. Meyers. The rationale regarding that was detailed in 
112(n) revision rule, which was promulgated at the same time as 
CAMR was. Essentially, we considered that the appropriate and 
necessary determination made in 2000 was in error and that the 
provisions of 111 provided a context for regulating mercury 
under Clean Air Act provisions allowed by 112(n). And on the 
basis of the 111 provisions, we thought that the 112 provisions 
were essentially unnecessary.
    Senator Carper. In your testimony, I think you discuss the 
rigorous continuous mercury emissions monitoring provision that 
is included in the Clean Air Mercury Rule. You describe the 
methodologies adopted as ``State of the science.''
    If the Court does not agree to re-hear the Clean Air 
Mercury Rule case, will EPA use the same State of the science 
methodology in adopting emissions control standards?
    Mr. Meyers. The monitoring specifically, or the standards 
themselves?
    Senator Carper. The standards.
    Mr. Meyers. Well, we are requesting rehearing by the full 
panel D.C. Circuit. We do, as I said, respect the opinion of 
the Court. If the opinion of the Court stands, our rule is 
vacated and we would need to proceed under the listing decision 
in 2000.
    Senator Carper. If the Court doesn't rule in EPA's favor, 
well, first, let me ask you, when do you expect to hear from 
the Court?
    Mr. Meyers. That is usually at the pleasure of the Court. 
Briefs were filed within about the last 6 weeks or so. So I 
would imagine we would hear relatively soon on the rehearing 
request.
    Senator Carper. Some time this summer?
    Mr. Meyers. Presumably. The Court has latitude to request 
further briefing. We don't know exactly until we hear from the 
Court. They could deny rehearing very quickly or have some 
further process.
    Senator Carper. If the Court does not rule in EPA's favor, 
how long would it take to establish standards for hazardous air 
pollutants, including mercury under Section 112 of the Clean 
Air Act?
    Mr. Meyers. Well, a typical 112 rulemaking requires, one 
thing to remember is that the 2005 regulations were based on a 
1999 inventory of information requests that we did back then. 
So the information in 2008 is obviously almost a decade old. So 
the first step in terms of a 112 process would be information 
collection, necessary updating of our information on both the 
emissions and the control technology that has been installed.
    We have some information concerning that, but we need to do 
this in a comprehensive manner, in order to evaluate what, 
under 112 compiles the best performing 12 percent. So we would 
do an information request, we would have some analysis of that, 
public comment. Typically, in terms of MACT, the process for 
proposal is 12 to 18 months and the process for final is 12 to 
18 months, in a range of 2 to 3 years total.
    Senator Carper. With our second panel today, we are going 
to hear about the mercury emission control technology. I 
welcome that. I think one of the critical questions to answer 
with respect to reducing mercury emissions is, how good is the 
technology today, how good is the technology likely to be 
three, four, 5 years from now. And does the adoption of a 
rigorous emissions standard, does it actually incentivize and 
hasten the development of the technology that will enable us to 
reduce mercury emissions further.
    I am confident that reductions well beyond what was 
required under the Clean Air Mercury Rule are available with 
today's technology.
    Let me just ask you, do you believe that Section 112 of the 
Clean Air Act has the flexibility to establish a standard that 
will require every power plant to install control technology 
that needs it, while still allowing for some averaging to meet 
an overall 90 percent reduction? I would just reemphasize the 
last part of that question, while still allowing for some 
averaging to meet an overall 90 percent reduction.
    Mr. Meyers. That is a more complicated question than it 
might appear to be, Senator. But I would answer it briefly, 
that there are certain flexibilities available within 112 that 
we have utilized with regard to sub-categorization of sources. 
In other words, we have looked at different source types and 
sub-categorized from among the broader source to create 
different technology requirements.
    But 112(d) is a fairly straightforward constraining 
provision. So each of the standards basically have to be met. 
The concept of averaging, I would like to get back for the 
record to search for any examples where we've used averaging 
broadly across a category. Our approach has been in terms of 
differences within a category of sub-categorization rather than 
averaging.
    Senator Carper. That is one that we would like for you to 
get to us on, if you would, please.
    [The referenced material was not submitted at time of 
print.]
    Senator Carper. Senator Voinovich.
    Senator Voinovich. Thank you very much.
    I spent a lot of time the last couple of weeks at home. A 
great, great complaint from my constituents in regard to the 
cost of heating their homes. Natural gas costs have 
skyrocketed, and it appears that they are going to be going up 
a lot more in the next couple of years.
    Is it your opinion that if the technology, and we are going 
to be hearing more about it today, is not available, 
commercially and viable, that utilities will fuel switch to 
natural gas?
    Mr. Meyers. I think a number of analyses that we have 
performed on various bills, including Clear Skies provisions, 
including some of what we have done in climate change, so that 
the economic incentive is there, fuel switching will definitely 
occur as a response to constraints.
    Senator Voinovich. I will tell you, I looked at my utility 
bill and my wife said to me, she just couldn't believe it, and 
she said, how can other people be paying the cost of this? I 
think so often, when we consider some of these things here 
before Congress, that we give little consideration to the 
impact that it has on just the average person's standard of 
living. And you add that on now to the cost of gasoline, and we 
are hearing a howl come out across the United States of 
America.
    The other issue that I am interested in is the one that I 
raised in my opening statement, and that was the issue of going 
from 70 to 90 percent in terms of reducing mercury. Have there 
been any authoritative studies to indicate the health benefits 
that would be derived for the American people by going from 70 
to 90 percent, understanding that the cost of going from 70 to 
90 might be extraordinary?
    Mr. Meyers. I don't know of a specific study that we have 
done analyzing 70 versus 90. In 2005 we did a considerable 
amount of detailed work on the health benefits of the emission 
controls that we were putting in place. It is certainly a 
question of whether there is a linearity in those between 70 
and 90. Again, we will provide information. In other words, 
whether you get corresponding rate of health benefit for the 
improvement. We would be happy to provide that information for 
the record, Senator.
    Senator Voinovich. In other words, you could provide 
information on that?
    Mr. Meyers. I believe we can. I don't off the top of my 
head know of an incremental analysis between 70 and 90. One 
would expect improvements, benefits between 70 and 90. As I 
said, I am not sure if that is in a linear fashion or not. But 
we will provide what information we can.
    Senator Voinovich. Do you have any information on the 
additional cost that would be incurred by going from 70 to 90?
    Mr. Meyers. Well, if the reference is between the CAMR 
rule, which is a cap and trade, versus a 90 percent, 112(d), 
certainly the cost would be much higher under a unit by unit 
provision compared to one that required or allowed for trading. 
If it is not on a unit by unit basis, then it will be less.
    The experience and other witnesses in the second panel 
will, I am sure, get into their experience of installing, is 
that we have variable results. There are some good results, 
there are some results over 90 percent, in some cases much over 
90 percent. But there are also some challenges with regard to 
certain ranked coals, lignite and other coals that have 
difficulty in attaining consistent results of removal. So the 
cost for a unit that has that problem could be considerable.
    Senator Voinovich. Off-hand, would you be able to share 
with us the reduction in mercury as a co-benefit from reducing 
NOx and SOx?
    Mr. Meyers. Yes. I think that is what we detailed in the 
analysis to accompany the CAMR rule, the first phase of the 
CAMR rule was linked to the CAIR reductions, which are 
essentially aimed at NOx and SOx and 
installation of fluidized gas desulfurization units and SCR 
technology, which can in certain combinations, certain coals, 
bituminous coals, give very good results for mercury. 
Additionally, other technologies, like fabric filters, et 
cetera, for particulate control, can result also in mercury 
reductions.
    Senator Voinovich. What do you mean by good results, 40 
percent? Fifty percent? Sixty percent?
    Mr. Meyers. There is a range, sir. Some of the information 
I looked at in preparation for the hearing would show ranges 
from 60 to 80, CAMR itself we thought was about an 80 percent 
overall full effect out of coal. On some bituminous coals, 
again, we see results that go over 90 and in some cases, waste 
coal can get 98 percent or more. So it is a range, and it 
depends, as mentioned before, on the configuration of the 
plant, the coal, even if it is a certain type of coal, even the 
sulfur content, various constituents of that, sulfur content, 
other things are important in how the control technology 
affects the emissions.
    Senator Voinovich. And you are talking about that, those 
are the kinds of numbers you could get from just the co-
benefit? Because most of the new facilities or the ones that 
they are modernizing have----
    Mr. Meyers. We certainly felt the first phase of CAMR would 
get us to a co-benefit level of at least 38 tons. After that, 
we saw the installation of ACI technology in the 2010 to 2018 
period to reduce further to the 70 percent level. But we would 
be happy to provide our most updated estimates of the co-
benefits from current technology and we have a Clean Air 
Markets Division that can provide that information to you 
readily, sir.
    Senator Voinovich. Thank you.
    Senator Carper. Thanks, Senator Voinovich.
    Senator Lautenberg, you are recognized, then we will come 
to Senator Barrasso, and we have been joined by the Senator 
from Idaho. Welcome.
    Senator Lautenberg, you are recognized at this time.
    Senator Lautenberg. Thank you, Mr. Chairman.
    Mr. Meyers, if we have covered anything that I am asking 
about, please remind me.
    The Federal Court determined that your agency should have 
required better technology to reduce emissions at all power 
plants, as opposed to using a cap and trade approach. While you 
appeal this ruling, there is currently no Federal regulation in 
place for mercury emissions. How can we further delay 
regulating the emissions through litigation at the same time 
that your own website warns of the danger of exposure to 
mercury?
    Mr. Meyers. Sir, the court decision turned on the objection 
that the agency had not used what is known as the 112(c)(9) 
delisting process so the court did not hear arguments further 
other than to say that the agency was in error for not going 
through the (c)(9) delisting process in 2005, once it had 
listed the units in this category in 2000.
    But with respect to what we are very seriously looking at 
our options after the court's decision, I have met several 
times with my staff to analyze the immediate result. There are 
some immediate results, as we indicated in our filing to the 
court. Section 112(g) applies to units, 112(g) applies to 
construction, major modification.
    Senator Lautenberg. In the simplest of languages, please. 
The nomenclature means a little bit more to you than it does to 
me. So there is no doubt about the danger of mercury, 
particularly to pregnant women, their babies. And so do you 
think it is urgent that we get on with regulating mercury 
emissions?
    Mr. Meyers. We certainly do think it is important. That is 
why the agency has taken a number of actions over----
    Senator Lautenberg. Urgent, Mr. Meyers?
    Mr. Meyers. It is very, very important, urgent. We have 
many, I would say, health threats that could be considered 
urgent. Mercury is a very important health threat. We are very 
serious about addressing it. As I mentioned, in the wake of the 
court's decision with regard to new, modified plants, you have 
112(g). Also right now we have our CAIR program, which 
effectively, the early actions that are being taken right now 
with the 2.7 gigawatts of ACI that is installed, I mentioned in 
my testimony, and the other actions that have been taken to 
comply with SO2 and NOx, we will see 
mercury reductions. We will see mercury reductions in 2010 and 
beyond as a result of CAIR.
    So we are seriously looking at the options. We do think 
that the court opinion was in error, as I said. But we will 
comply with the court opinion.
    Senator Lautenberg. Studies show that mercury emissions 
from power plants in the Midwest do lead to mercury hot spots 
in the Northeast, including in my State of New Jersey. How do 
we defend a cap and trade system that does not prevent mercury 
pollution from spreading across the Country? It can move the 
emissions facility. But that doesn't mean that it isn't putting 
other people, subjected to the mercury emissions, or mercury 
consequences.
    Mr. Meyers. When the original rule was promulgated in 2005, 
we included an analysis on this point in terms of what we saw 
from cap and trade. Our experience with cap and trade led us to 
believe that the highest emitters would be incentivized to be 
the first to control. This is what we saw in the acid rain 
program, we did an analysis for the record that would show the 
same effect in the cap and trade. So we thought that the hot 
spot issue, the localized emissions was adequately addressed by 
the cap and trade mechanism.
    Senator Lautenberg. Mr. Chairman, thank you very much.
    Senator Carper. Thank you, Senator Lautenberg.
    Senator Barrasso.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    Mr. Meyers, I wanted to talk a little bit about the storage 
of excess mercury and the Senate bill. There is a House version 
of the bill as well. I had received a letter from the National 
Nuclear Security Administration that was sent to me in my 
ranking role on the Subcommittee on the Superfund, and it was 
also sent to Senator Boxer, Senator Inhofe. Specifically, it 
deals with the storage of excess mercury and some concerns that 
they have from a security standpoint. The letter talks about 
the House bill contains a provision that would direct the 
Department of Energy to accept non-Federal commodity grade 
mercury for log-term storage. I am opposed to this provision. 
This is speaking here, the National Nuclear Security 
Administrator, he says, ``I am opposed to this provision for 
several reasons, including the impact it would have on the 
Department of Energy's primary mission and the cost to the 
taxpayer.''
    Do you know what the plan is for the storage and the cost 
related to that, Mr. Gulliford?
    Mr. Gulliford. If I may, Senator Barrasso, yes. We have 
conducted an interagency work group on commodity mercury. We 
have looked at the issues related to storage of mercury. We 
have commitments from the Department of Energy, Department of 
Defense, for long-term storage of Federal mercury reserves and 
products.
    We also went to a stakeholder panel to talk about the 
potential for further storage of privately held mercury stocks, 
and several things that we learned from that stakeholder panel. 
First, that there are a lot of technologies, a lot of container 
options for storage of mercury. Clearly, it is not the problem, 
for example, of unspent uranium or other nuclear waste.
    But still, two things. Basis for the position of the U.S. 
Government is that it really isn't in the Department of 
Energy's mission to store private stocks of mercury. So we are 
not interested in that. And second, that the costs for doing 
and storing private mercury can be absorbed by private sector, 
and that there can be private sector solutions to storing long-
term storage of mercury as well.
    So there are options that are available to the public and 
there are safe storage containers for mercury storage.
    Senator Barrasso. So in terms of the national security 
concern, it is not there with this. It is the expense 
specifically related to it, and the Government shouldn't be the 
one, or the American taxpayer shouldn't be the one bearing the 
brunt of that?
    Mr. Gulliford. Expense and mission.
    Senator Barrasso. I wanted to get to another thing, 
following up on what Senator Voinovich was talking about, with 
SOx and NOx and mercury and the 
technology. When I visit with scientists that I am working 
with, it seems like the research and development results to 
date, at least, we haven't had the long-term testing, is that 
if you remove the mercury, then you will substantially lessen 
trying to simultaneously remove the other emissions, such as 
the NOx and the SOx and particulate 
matter. It is not like just washing something twice and you get 
it twice as clean, it doesn't balance exactly. Is that your 
understanding as well, Mr. Meyers? At least from what we know 
today?
    Mr. Meyers. Yes, the various coal types, but certain 
combinations of control equipment, like an SCR, along with 
back-house or a scrubber on the back end of a unit, can result 
in very good efficiency and removals. In particular, I think, 
since the 2005 rulemaking, we are encouraged by the progress 
that has been made on sub-bituminous coals, which we thought at 
the time, and it still poses challenges, but were more 
difficult to control.
    Senator Barrasso. Thank you very much. Thank you, Mr. 
Chairman.
    Senator Carper. Senator Whitehouse, I think you are next.
    Senator Whitehouse. Thanks very much, Chairman.
    Mr. Meyers, mercury is extremely toxic, is it not?
    Mr. Meyers. It is a neurotoxin, sir, yes. It is certainly 
toxic to humans. We have evidence of that through gross 
poisoning incidents that occur through feed grain, and in 
Japan. So we have no doubt it is a neurotoxin with very serious 
effects.
    Senator Whitehouse. And Congress demanded that it be 
controlled through the best available control technologies, 
correct?
    Mr. Meyers. Congress provided in Section 112(n) for the 
treatment of power plants and it went through revisions in the 
1990 amendments. So it provides a special subsection to the 
overall section controlling hazardous air pollutants.
    Senator Whitehouse. But the idea was that there would be 
best available control technology to limit mercury emissions, 
not so?
    Mr. Meyers. Section 112(n) as we read it required the 
agency to conduct a study and then based on the study, it made 
a determination, if the agency determined after the study it 
was appropriate and necessary to regulate it, then provide for 
regulation. It did not----
    Senator Whitehouse. By best available control technology?
    Mr. Meyers. Section 112(n) does not specifically mention 
best available control technology.
    Senator Whitehouse. Do you dispute that that was Congress' 
intent?
    Mr. Meyers. I think everything we reanalyzed in 2005 in our 
petition for rehearing speaks of our view that the Congress, in 
setting up 112(n), set up a special provision for utility 
units.
    Senator Whitehouse. Are coal-fired power plants the largest 
source of human-caused mercury pollution?
    Mr. Meyers. In the world or in the United States?
    Senator Whitehouse. In the United States.
    Mr. Meyers. I think they are the largest remaining source. 
They did not used to be the largest source.
    Senator Whitehouse. But they are presently the largest 
source?
    Mr. Meyers. Of the category, yes, I think they are the 
largest remaining source.
    Senator Whitehouse. And EPA exempted, in effect, coal-fired 
power plants from best available control technology through the 
administrative stratagem of proceeding to the cap and trade 
program, correct?
    Mr. Meyers. We did not exempt, we sought to control them 
under Section 111 versus Section 112 under a new source 
performance standard versus a MACT standard.
    Senator Whitehouse. Which did not require that best 
available control technologies be currently applied.
    Mr. Meyers. It did not require best available control 
technology on each unit, sir, that is correct.
    Senator Whitehouse. And the court found that to be 
unlawful, correct?
    Mr. Meyers. The court found that our delisting decision was 
unlawful. In other words, the court said that once EPA had 
listed the substance, it could not delist it, which we did in 
the 112(n) revision rule, without going through Section 
112(c)(9).
    Senator Whitehouse. And having departed from the per plant 
best available control technology requirement, and gone to the 
administrative stratagem of the cap and trade program, did you 
consider that there might be any legal risk whatsoever to that 
program?
    Mr. Meyers. Well, I was at the agency during that period of 
time. Certainly we evaluated legal risk with all our 
regulations. That is----
    Senator Whitehouse. Did you see any legal risk in not going 
forward that way, that this might be challenged and overturned 
by courts? Was that a hypothesis that you considered?
    Mr. Meyers. I would say there is some degree of legal risk 
in every decision that we make. There was a legal decision in 
this----
    Senator Whitehouse. Legal risk in this decision? Yes. 
Despite that, was there any kind of backstop regulation or 
effort to followup under a pure best available control 
technology regime?
    Mr. Meyers. I think in this case, sir, the backstop was 
CAIR. The backstop was our separate regulation on 
SOx and NOx which produced the co-
benefits.
    Senator Whitehouse. Which mercury just followed along on, 
right?
    Mr. Meyers. Yes, although those same controls can be 
optimized for mercury control.
    Senator Whitehouse. Was that mandated that they be 
optimized for mercury control?
    Mr. Meyers. No. It was incentivized through the cap and 
trade system that we promulgated. It was not mandated for each 
unit.
    Senator Whitehouse. If it was the agency's intention to 
avoid controlling the release of emissions of mercury by coal-
fired power plants, if it was their intention to avoid that----
    Mr. Meyers. No, not at all.
    Senator Whitehouse. Hang on. That is the hypothesis. Let me 
ask the question. Can you think of any better way you could 
have achieved it than to establish a parallel, unlawful cap and 
trade program that was itself defeated without any backstop so 
that you leave nothing but the SOx and 
NOx program to protect Americans from mercury 
emissions? If you said to them, no, we are just not going to do 
it, there would be an easier challenge. It strikes me that this 
is the best conceivable way to avoid doing this. And it is a 
very clever, if you wanted to follow a very clever stratagem to 
avoid meeting your duties, it would be hard, I can't think of a 
better one than this. Could you think of a better one?
    Mr. Meyers. Sir, at the end of the day, we promulgated 
regulations to control mercury in two phases. So it was our 
intention to control mercury emissions from power plants.
    The basis of your hypothesis is that we would know in 
advance how a court would rule and essentially use that 
unknowable to affect our behavior before we got to court. Our 
intention was to control mercury emissions, which we thought we 
did in the best manner through a cap and trade system.
    Senator Whitehouse. My time has expired.
    Senator Carper. Thank you for those questions. Senator 
Craig, your turn.
    Senator Craig. Thank you very much, Mr. Chairman. As it 
relates obviously to your legislation and the concern we all 
have about mercury emissions, this is a timely and important 
hearing. I guess my frustration is, where do we begin and how 
do we handle it in lieu of the technology that isn't available 
yet or isn't available as readily and applicable to 
retrofitting current generation capability as it is possibly to 
future.
    Deputy Administrator Meyers, as EPA looks at this issue and 
the knowledge over mercury grows, how does mercury transported 
from China affect the United States? My point is, once mercury 
is gasified and goes airborne, how long does it stay airborne. 
We have all gotten a big surprise here in the last year. China 
wasn't to surpass the United States for some time in coal-fired 
emissions. Well, they did in June. And within those emissions 
and the technology that produces them, I have to assume there 
is a high level of mercury along with CO2.
    Do we know about how long it stays airborne and with the 
rate of growth and the online coming of generating capacity in 
China, they do it now weekly, bringing new coal-fires online, 
what kind of an impact is that, or do we understand what kind 
of an impact that is having on the United States as it relates 
to mercury?
    Mr. Meyers. Sir, we do have some ideas. In answer to your 
first question, mercury is emitted in essentially three 
different forms. Depending on the form, it can be transmitted 
for very long distances for very long periods of time. 
Essentially there is transport, international transport within 
the continental U.S. The effect of international transport 
versus local sources varies. On the West Coast, it is higher, 
you see perhaps 85 percent international transport contribution 
on the West Coast. On the East Coast, the number is more like 
about 50 percent.
    But there is variability in the regions. There is 
variability also, I would say, too, with respect to the 
ultimate health effect, because what we were talking about, the 
mode of exposure of any of this, is consumption of fish. So it 
doesn't matter to the water body how the mercury gets there. It 
doesn't matter if it came internationally or if it came from a 
local source or if it came through some other source of 
pollution or leaching from soil.
    What matters is that there is methylation in the pond and 
that the mercury then bioaccumlates through the food chain and 
is consumed on a regular basis, causing the health effects. So 
the short answer to your question is that there is transport, 
the degree varies. It is substantial, but it is something that 
we are continuing to evaluate. We have observatories in Mauna 
Loa in Hawaii that are trying to assess this right now.
    Senator Craig. So in other words, we don't really know yet? 
We know it is happening?
    Mr. Meyers. We know it is happening. We have a rough idea 
of the extent. But I don't think the State of our science is 
such that we could point to China or any other country and say 
with certainty X amount of mercury comes and is deposited in 
Rhode Island or Iowa or any other State.
    Senator Craig. As compared to, OK.
    Mr. Meyers. It is a global pool of mercury and it is 
emitted from a lot of different sources.
    Senator Craig. We have heard a lot today about what some 
people think is wrong about EPA's approach toward controlling 
mercury. Can you explain to me, Administrator Meyers, what the 
benefits of the cap and trade approach are that haven't been 
brought out here today?
    Mr. Meyers. Yes. I think we demonstrated the benefits of 
cap and trade, and one prime example is Title IV of the Clean 
Air Act, the Acid Rain program. Congress approved that in 1990. 
The performance of that program to date, we have exceeded 
expectations in terms of the cost, reducing the cost of 
control. It is a very transparent system for compliance, too. 
It doesn't take many resources to know what is going on, 
because we have tracked the allowances.
    So we believe that system was appropriate in mercury. We 
analyzed it. We were concerned, and we have heard the concern 
over hot spots. We did an analysis to indicate, as I indicated, 
that the larger sources, those that emit a lot under a system 
that incentivizes and essentially makes somebody pay a price 
for pollution, they have the most incentive to control. So we 
would expect to see the reductions at the largest sources 
first. That is what we saw in acid rain.
    Senator Craig. But in the end, if coal continues to be used 
in the way we are currently using it, in the same ratios of 
electrical generation, technology has to be the answer to keep 
it out of the environment to begin with?
    Mr. Meyers. Absolutely. With regard to mercury, mercury is 
in coal. So you either capture through traditional air 
pollutant control technology or you move to ACI, activate 
carbon injection or some other sorbent controls that have been 
or are being demonstrated right now.
    Senator Craig. Thank you. Thank you, Mr. Chairman.
    Senator Carper. Thank you, Senator Craig.
    Senator Klobuchar, welcome.
    Senator Klobuchar. Thank you very much, Mr. Chair. And 
thank you for being here, Mr. Meyers.
    As you know, Minnesota is the Land of 10,000 Lakes. 
However, mercury contamination has already cast a shadow over 
our fine tradition of grilling walleye and northern pike over 
our campfires. More than two-thirds of the lakes that have been 
tested in Minnesota are contaminated with mercury levels that 
exceed the Clean Water Act standards.
    A number of the species of fish in our lakes can't be eaten 
safely once a month. The mercury in the fish, of course, passes 
through the people who eat it, and is especially dangerous for 
pregnant women. Data from 2001 indicates that one of every 70 
babies born in Minnesota each year may be affected by mercury 
toxicity.
    The good news is that Minnesota has been very proactive on 
mercury, and we are a national leader. Starting in the early 
1990's, Minnesota has passed a number of State laws. These 
efforts culminated in a comprehensive law in 2007 where 
Minnesota banned nearly every remaining use of mercury in 
consumer products, even in thermostats and thermometers. We 
have also passed a law requiring the three largest power plants 
in the State to reduce their mercury emissions by 90 percent by 
2015, and our utilities were actually supportive of these 
measures.
    All told, our efforts have resulted in a reduction of 70 
percent of Minnesota's mercury emissions since 1990, and we 
will go even higher with the effects of our new law.
    So my questions are along those lines. My State's efforts 
in banning mercury from consumer products, cleaning up power 
plants, have resulted in this reduction. But I have been told 
by our State experts that 90 percent of the mercury that is 
deposited in our lakes comes from outside of Minnesota. So what 
good does it do for our States to undertake these efforts if 
the Federal Government doesn't follow suit? That is my 
question.
    Mr. Meyers. In response to your question, I think we did 
take action to address the concerns of your State and other 
States through our rule. We thought that the 70 percent control 
levels, and we effectively think, when we further analyze it, 
it would be up to 80 percent from coal, mercury from coal-fired 
power plants, would be produced under our CAMR regulations.
    So when the court vacated our regulation, in a sense, there 
is no mercury regulation at the Federal level right now. We are 
disappointed in that decision because we thought we were moving 
in the right direction.
    Senator Klobuchar. But even your direction was not as 
aggressive as Minnesota has been, that is my understanding.
    Mr. Meyers. I will posit that is true. One thing about 
CAMR, when we started, before CAMR existed, there were I think 
three or four State programs to control mercury. In the years 
since CAMR, I think over a couple dozen or more States have 
taken action.
    One of the benefits of CAMR, I think, was that States did 
act. I think your action may predate CAMR, it probably does. 
But I am not claiming causality here. The States have focused, 
were allowed to go stricter, and they could go stricter then 
have direct control programs under the CAMR system.
    Senator Klobuchar. Our utilities, as I said, agreed to 
reduce their mercury emissions by 90 percent by 2015. That 
would be Excel and Minnesota Power. If they have agreed to do 
this, why can't the rest of the Country do the same?
    Mr. Meyers. I would have to look into the configuration and 
the coal types that are used by the utilities in your State. I 
don't know also in terms of some of the State programs that are 
enacted, also I am not sure if this is the case in Minnesota, 
but I am aware in some States there were escape clauses on the 
provision. They were providing for 90 percent, as long as the 
control technology proved out.
    Again, I am not aware----
    Senator Klobuchar. Well, you should also know Excel agreed 
to a 30 percent, that 30 percent of their electricity be 
provided by renewables by 2025. So they have been very devoted 
to this idea.
    My last question, actually, another topic. In the past, one 
large source of mercury emissions in Minnesota was the 
incineration of trash to produce electricity at our nine waste-
to-energy facilities. I understand that there have been 
enormous strides made in cleaning up the emissions from these 
plants, such as to the extent that they no longer really rank 
among our principal mercury sources. Could you talk about the 
progress that has been made with this technology and what are 
your thoughts on the expansion of waste-to-energy as another 
source of electricity for our Country?
    Mr. Meyers. Certainly there has been progress. We 
promulgated rules to require those reductions. Waste-to-energy 
has been around for a couple of decades, different incentives 
have caused its growth including PURPA and qualified facilities 
under that law, which initially provided for purchase by 
traditional utilities of that power that avoided cost. I am not 
an expert in waste-to-energy, I assume there is some room for 
growth, as there is in most endeavors.
    We are supportive of those efforts, as long as they are in 
compliance with our regulations.
    Senator Klobuchar. Thank you very much.
    Senator Carper. Senator Cardin, I believe you are next.
    Senator Cardin. Thank you, Mr. Chairman.
    Let me ask unanimous consent that my opening statement can 
be made part of the record.
    Senator Carper. Without objection, so ordered.
    [The prepared statement of Senator Cardin follows:]

            Statement of Hon. Benjamin Cardin, U.S. Senator 
                       from the State of Maryland

    Madame Chairman, thank you.
    In my home State of Maryland there are 14 water bodies 
listed for not meeting water quality standards due to mercury 
pollution. Marylanders are can't eat all the fish they catch 
because fish from some Maryland streams and lakes contain 
mercury. Eating these fish can be especially dangerous to women 
of child bearing age and to young children. Unfortunately, 
Marylanders are not alone--nationwide, mercury pollution has 
contaminated 12 million acres of lakes, estuaries and 
wetlands--30 percent of the national total--and 473,000 miles 
of streams, rivers and coastlines.
    Mercury is a persistent, bioaccumulative toxic metal--it 
accumulates and concentrates up the food chain. Although it 
occurs naturally in the environment, over the past century 
human activities, including industrial emissions or practices 
and poor waste management, have substantially increased the 
amount of mercury released to the environment, particularly via 
atmospheric emissions. Each year, U.S. power plants and other 
industrial facilities spew about 150 tons of mercury into the 
air.
    Once released to air, mercury can be transported long 
distances. Consequently, a large portion of mercury that is 
deposited in Maryland originates from other sources. A 2007 
Maryland Department of Natural Resources report estimates that 
about 88 percent of the total mercury deposition in the 
Chesapeake Bay watershed originates from outside of Maryland.
    While concentrations of mercury in the air are usually low, 
mercury eventually reaches our waterways where it can be 
transformed into methylmercury by bacteria, a form of mercury 
that readily bioaccumulates in fish tissue. Humans can become 
exposed to this form of mercury via eating fish.
    Mercury is toxic to the developing nervous system and can 
impact brain development--particularly in the fetus and young 
children. Due to these concerns, the Maryland Department of the 
Environment issues guidelines for how much recreationally 
caught fish (mostly freshwater fish) can be safely eaten, while 
the U.S. Food and Drug Administration issues guidelines for 
commercially marketed fish.
    MDE considers a waterbody to be impaired--that is to say, 
not meeting its ``fishable'' use--when, for indicator fish 
species, the methylmercury concentration exceeds 300 parts per 
billion of edible fish tissue. Water bodies with average fish 
tissue methylmercury levels above 300 ppb are listed as 
``impaired'' under the U.S. Clean Water Act. Such listing 
triggers the need for a future Total Maximum Daily Load 
analysis.
    Issuing waterbody impairment advisories and recommending 
reduced fish consumption do protect human health, but represent 
insufficient action on the part of the Federal Government in 
fully protecting human health and that of the environment. We 
should act to reduce mercury emissions, remove mercury from all 
industrial practices--particularly those for which there are 
cleaner and safer alternatives, and not export mercury overseas 
where it might endanger the lives of others.
    Because of my concern for public health and protection of 
the environment, I've co-sponsored legislation related to 
reducing mercury in our environment by banning particular 
industrial practices as in the making of chlorine and caustic 
sodas.
    I look forward to hearing from our witnesses about their 
support and concern for this and other legislation. I hope that 
we can act promptly on the issue of mercury to improve global 
public and environmental health.
    Thank you Madame Chairman.

    Senator Cardin. Let me just make a quick observation before 
I ask Mr. Meyers a couple of question. There are 14 water 
bodies in Maryland that have now been listed as not meeting 
safe standards as far as mercury pollution is concerned. The 
consequence is that there are fish that are caught that are not 
safe for human consumption. Warnings have been issued, as you 
know, for women of child-bearing age and children. We know that 
mercury can have a devastating effect on children as far as 
their brain development. So it is a serious health issue.
    And just to underscore a point that has been made by some 
of my colleagues in their questions, there was a 2007 
Department of Natural Resources State study that showed that 88 
percent of the mercury pollution in the Chesapeake Bay comes 
from outside the State of Maryland. So the airborne problems 
are real and they are having an effect in our States.
    Mr. Meyers, my question to you is that the EPA, in 
conjunction with other Federal agencies, has convened a 
stakeholders group to look at ways to deal with non-Federal 
sources of mercury. It is my understanding that the last 
meeting was in September 2007. My question is, when could we 
anticipate recommendations coming out of that stakeholders 
meeting on non-Federal supplies of commodity-grade mercury?
    Mr. Meyers. Senator, if I could, let me have Mr. Gulliford 
answer that.
    Mr. Gulliford. We have concluded that stakeholder group. 
They have provided input to us on a variety of issues related 
to mercury management options from Federal storage to private 
storage to the issue on the export ban and a lot of issues 
associated with it.
    Clearly, some of the issues that are important to us from a 
Federal Government standpoint are the costs of doing that. 
Should those costs be borne by the American public or should 
they be borne by those private companies that own that mercury? 
Second, is it a part of the Department of Energy's mission to 
have the responsibility to store non-Federal sources of 
mercury?
    So clearly, a lot of the conclusions from the interagency 
work group on commodity mercury are that one, we are certainly 
supportive of the decision by both the Department of Energy and 
the Department of Defense to store for considerable terms the 
Federal Government's mercury that is in the possession of the 
Federal Government.
    Second, we don't believe that it is the Federal 
Government's responsibility to store privately held mercury. 
Clearly, there are technologies in terms of containers that are 
adequate to safely store mercury for an extended period of 
time, that can be done by the private sector as easily as it 
can be done by the Federal Government. At this point in time, 
we believe that it is probably more appropriate for private 
industry to store their own mercury.
    Senator Cardin. Do you anticipate that there would be 
recommendations to restrict the exporting of excess mercury 
here from the United States to other countries?
    Mr. Gulliford. A little bit more on background of the 
commodity mercury stakeholder panel. It was not a FACA, so we 
did not ask them for recommendations. We asked them for input. 
There was no attempt to arrive at a consensus opinion. There 
are a variety of opinions held. I think there was, if you were 
to look at the type of input that we got, clearly there was an 
interest on the part of industry for the Federal Government to 
be the storer of excess commodity mercury. I think of non-
Government organizations as well, there was that interest as 
well.
    But the facts clearly don't require the effective storage 
of commodity mercury, that it has to be done by the U.S. 
Government.
    Senator Cardin. I understand that, I am somewhat 
disappointed, but I am somewhat disappointed there are not 
recommendations. My interest is getting the best information 
available to try to make the right policy judgments. It seems 
to me that one of the avenues that should be explored is that 
perhaps the Federal Government should take on a greater 
responsibility in the storage of mercury in exchange for which 
there would be restrictions on the export of excess mercury, so 
that we don't have other countries that have been more careless 
in the use of mercury having additional sources.
    Now, some have argued that that might just increase the 
mining of mercury. I am not aware, maybe you are, of any 
evidence to that effect. It seems to me if we can control what 
is in this Country and make sure they are not getting into the 
hands of irresponsible users, that would be in our interest.
    Mr. Gulliford. Again, several points to your question, your 
series of questions there. First, all the information that came 
from the stakeholder panel is available to the public. It is 
available on our website. We collected that information, 
reviewed it with the members to make sure that it was 
accurately reflected in that. So that information clearly is 
available.
    Second, however, we believe that at this point in time, the 
most appropriate actions that we can take with respect to 
mercury in products and mercury that is released as a part of 
processes or uses of mercury in processes, that the actions we 
can take to most appropriately be protective are to reduce the 
demand for mercury.
    It is clear that mercury is available from a variety of 
sources, and simply prohibiting the export of U.S. sources of 
mercury, it is very difficult to predict what the outcome of 
that would be with respect to mercury uses. You speak to issues 
of mining. Again, we believe that the most appropriate action 
we can do is to discourage or take actions to eliminate 
existing mining activities that are occurring.
    The U.S. Government has supported initiatives by the Swiss 
to look at an analysis of mercury mining in Kyrgyzstan, the 
largest mine that still operates and produces mercury, to look 
at options for reapplying the mining industry there in a way 
that does not, rather than mine mercury, looks at other 
products to mine in a way that can still support the economy 
that mining is important to in Kyrgyzstan, but reduces the 
additional input of mercury into whatever the global amount of 
mercury that exists, again, in the area of commodity-grade 
mercury that is available for products or processes.
    Senator Cardin. That is a very helpful answer. I would just 
point out, if we restrict the export of mercury there will be 
less mercury. The bottom line is going to be less.
    Mr. Gulliford. I think, though, one of the points you ought 
to also consider is what are the impacts on trade, and that 
there are a lot of uses of mercury still in this Country that 
are allowed. We assume that those uses are still allowed in 
other countries as well, and the ability of those countries to 
have access to mercury for those acceptable, allowable uses, is 
something that we ought to be concerned about with respect to 
our trade commitments and our trade agreements.
    Senator Cardin. Thank you, Mr. Chairman.
    Senator Carper. Thank you, Senator Cardin.
    We have votes which are expected to start around 11, then 
11:10 and 11:25. I am told that the debate is winding up on the 
flight insurance bill and that we can expect to start those 
votes soon but not immediately.
    We are going to get into a second round here, I think it 
will probably be truncated somewhat. But let me just start off 
by asking Mr. Meyers, as you may recall, a number of my 
colleagues have joined, Democrat and Republican colleagues, 
have joined me in introducing our Clean Air Planning Act, re-
introducing our Clean Air Planning Act, which would require 
power plants to significantly reduce nitrogen oxide, sulfur 
dioxide, mercury and CO2 emissions.
    With the Clean Air InterState Rule and the Clean Air 
Mercury Rule both involved in court challenges, do you think 
that this might now be the right time for EPA to consider 
combined multi-pollutant regulation of power plant emissions?
    Mr. Meyers. Well, sir, as you know, at the time you 
introduced your legislation, the Administration also had the 
Clear Skies Act that was before Congress and actually 
considered by this Committee in early 2005, I believe. So we 
certainly, as an Administration, have always advocated a multi-
pollutant approach, and have never wavered in that.
    With respect to where we are, there is a difference between 
CAMR and CAIR. In CAMR, we clearly have a court vacatur and 
with regard to CAIR, arguments have been heard, oral arguments 
and there is no decision yet. We await that court's review and 
decision.
    Senator Carper. All right.
    One of the questions, maybe Senator Craig asked the 
question about the source of mercury emissions that come to 
this Country, how much might be coming from China. My staff did 
a little bit of homework here, and it looks like somewhat, 
something maybe just a bit less than half of the mercury 
emissions that are deposited in this Country come from sources 
that emit in this Country, so maybe just a bit less than half 
come from sources within the U.S., and the remainder come from 
sources outside of the U.S.
    Question one for Mr. Gulliford, and then I will have some 
other questions for the record, Mr. Gulliford, in Mr. Meyers' 
written testimony, potentially negative consequence are 
mentioned in association with an export ban. I don't know of 
any consequences worse than the negative health impacts on our 
children. Could you please explain for us the anticipated 
negative consequences that would justify delay in implementing 
an export ban?
    Mr. Gulliford. Again, the issues of an export ban really 
aren't very well studied in terms of what the implications may 
be on additional mining. We do believe we understand the 
Kyrgyzstan mining situation and that it is unlikely that 
additional mining could occur there. I don't think we do 
understand very well the potential implications for mining in 
China. So that is the first issue with respect to unintended 
consequences.
    Second, do we achieve the consequences that we want to. If 
you look at the use of a lot of the mercury where uses are 
currently increasing, it is in artisenal mining. We know that 
people in different countries, poor countries where people do 
artisenal mining, they look at mercury as a way to enhance 
their recovery of gold. For that reason, they pay for mercury. 
We have no reason to expect that mercury export ban would 
change the dynamics of the mercury that gets into the hands of 
those people and allows them to use it.
    Clearly, we believe that the better approach is the one 
that we have chosen to work with UNEP and mercury partnerships, 
to work with those people to help them understand that there 
are alternatives to the use of mercury, and there are also 
safer ways, even, to use mercury in artisenal mining. We 
believe that the benefits of that work is clearly superior.
    Senator Carper. Thank you. I have used 4 minutes and I am 
going to relinquish the remainder of my time, and Senator 
Voinovich, if you could just keep your questions to about 4 
minutes, that would be good.
    Senator Voinovich. I have no questions.
    Senator Carper. Senator Voinovich has no questions.
    Senator Lautenberg? All right. Senator Whitehouse? Last 
opportunity.
    Senator Whitehouse. I am told that the vote has been 
called.
    Senator Carper. Yes, the vote has been called.
    Gentlemen, the record will remain open for about another 
week. A number of our colleagues, including myself, will want 
to ask some additional questions. We would ask that you respond 
in writing as promptly as you could.
    Senator Lautenberg?
    Senator Lautenberg. When we are we going to leave for the 
vote?
    Senator Carper. My inclination is actually to get started 
on the second panel.
    Senator Lautenberg. Then if I might just take a minute to 
introduce Ms. Jackson.
    Senator Carper. Sure. We are happy to do that.
    With that, the first panel is excused. Thank you very much 
for joining us today.
    I would invite the second panel to come forward.
    Senator Lautenberg, please feel free to introduce 
Commissioner Jackson. My recollection is, Commissioner Jackson, 
that you had been invited to testify a couple of months ago at 
another panel, and you were unable to come, someone else did 
come in your absence. As I recall, she did an excellent job. We 
are delighted that you are here today.
    Senator Lautenberg.
    Senator Lautenberg. She is committed to New Jersey, Mr. 
Chairman. Thank you very much.
    Mr. Chairman, I am honored to introduce to our Committee 
the Commissioner of New Jersey's Department of Environmental 
Protection, Lisa Jackson. Commissioner Jackson is a highly 
effective advocate for our environment in New Jersey, and I 
think probably does some good for Delaware, even in her pursuit 
of that assignment. She has dedicated her career to public 
service, having previously served 16 years at the Federal level 
with EPA. Together, we have worked on project important to New 
Jersey, keeping our air clean, fighting global warming and 
protecting our State's strong chemical security laws.
    So as usual, I look forward to her testimony and to her 
continuing to work on her protection of our environment. We 
thank you very much for being here.
    Thanks, Mr. Chairman.
    Senator Carper. Senator Lautenberg, thank you for that 
introduction. I think what I am going to do is just briefly 
introduce the other panelists, and then ask Commissioner 
Jackson to actually begin her testimony. Then when you 
conclude, we will probably run and begin the first of four 
votes.
    Our second panelist, following Commissioner Jackson, will 
be Dr. Michael Durham, Officer and Board Member of the 
Institute of Clean Air Companies. Thank you for coming today.
    Next is Dr. Steven Benson, Senior Research Manager and 
Advisor of the Energy and Environmental Research Center. Thank 
you for coming.
    Dr. Leonard Levin, Technical Executive of Air Quality, from 
the Electric Power Research Institute. Thank you for joining 
us.
    Finally, Vickie Patton, Deputy General Counsel, Climate and 
Air Program of the Environmental Defense Fund. It is good to 
see you. Thank you so much for coming.
    Commissioner Jackson, your entire testimony will be made a 
part of the record. In fact, the same is true for all of our 
witnesses. Feel free to summarize as you see fit. I will ask 
you to stay within a 5-minute time period, if you could. Thank 
you.

    STATEMENT OF LISA P. JACKSON, COMMISSIONER, NEW JERSEY 
             DEPARTMENT OF ENVIRONMENTAL PROTECTION

    Ms. Jackson. I am happy to. Thank you, Mr. Chair.
    I have to thank Senator Lautenberg for that lovely 
introduction, but also for his leadership on so many 
environmental issues in our State and for his support of me 
personally and for the Governor's environmental agenda.
    And Senator Carper, I have to thank you for keeping a 
multi-pollutant focus, first and foremost, when it comes to air 
emissions. I think that will in the end be a good solution to 
many of our problems, including the mercury problem that we 
discuss here today.
    I will summarize my remarks as follows. The court cited 
Lewis Carroll in vacating the rule, so I will keep the same 
analogy and ask members of the panel and members of this 
Committee to look through the looking glass at an alternative 
reality to where we find ourselves nationally with respect to 
mercury regulation. The State of New Jersey really has been a 
leader on regulating mercury. And it is regulation, it is 
strong regulation for mercury.
    But like the State of Minnesota, it was regulation that was 
supported by our electric generating industry within the State. 
As a result of having moved forward with regulation, decades 
ago, a decade ago at least, we have experience now that we 
offer to this Committee that we hope is instructive to you as 
you consider S. 2643. Certainly, New Jersey supports S. 2643. 
We believe it is the right path in terms of continuation of 
mercury regulation. New Jersey has a long history of working 
with its stakeholders as well, and on implementing regulation, 
and, I have to note, fine-tuning them as we learn. Because have 
learned in New Jersey and in States throughout the Northeast 
that forcing technology in American ingenuity means that we 
learn to improve technology as we go. I think that is my lesson 
here.
    Indeed, Alyssa Wolfe was here about a year ago. I couldn't 
appear at that time because of wildfires in our State. I am 
glad to say that is not the case today.
    New Jersey is not alone in supporting S. 2643. The 
Environment Council of the State recently adopted a resolution 
at their meeting in New Orleans encouraging EPA to 
expeditiously issue a mercury rule.
    I would like to talk a little bit about the technology, 
because I know that is the focus of this panel. In the last 
year, mercury control projects in New Jersey confirm that 90 
percent control of mercury from coal-fired electric generating 
units is achievable, is achievable now. Our first experiences 
with municipal solid waste incinerators, we have 12 years of 
having required mercury regulation of MSWs, and in that time, 
mercury emissions have dropped by about 90 percent in the first 
year of carbon injection installations on 13 incinerators.
    After years of experience, mercury control levels are now 
between 95 and 99 percent for all units in the State. Carbon 
injection for those units has proven to be low cost, quick to 
install and highly effective on units as long as those units 
have good particulate control. For the 13 incinerators in New 
Jersey, carbon injection took less than 1 year to install, and 
that was back in 1995.
    With respect to coal, the ten facilities in our State are 
in various stages of implementing mercury control. What we have 
learned so far is that carbon injection prior to fabric filters 
achieves over 90 percent mercury control and very low emissions 
of mercury. We have some units in our State, particularly the 
connective deepwater facility, which achieves our mercury 
emissions requirements without injecting any extra carbon, 
primarily because their process produces carbon and that 
provides enough carbon to effectively control mercury emissions 
as well.
    Initial testing shows units with well-designed 
electrostatic precipitators, ESPs, can achieve close to or 
greater than 90 percent reduction. Some ESPs do need to be 
supplemented with fabric filters as we are finding out at the 
PSEG facility in Mercer County. And recent tests of carbon 
injection at RC Cape May's BL England Plant showed over 95 
percent control. I would like to note for the Committee that 
that is with high sulfur coal. So we are seeing 90 percent 
removal, and that is a high sulfur coal, which I know has been 
a concern. I am sure we may hear from some members of the panel 
with respect to that issue.
    Units with less effective particle control are less 
effective at capturing the mercury, even if you inject carbon. 
So some units in the U.S. will likely need to upgrade 
particulate control in order to achieve 90 percent. That is in 
my mind very appropriate, this is maximum available control 
technology. It is very important to remember when you look at 
costs and benefits that you remove much more than mercury. You 
deal with hazardous metals, hazardous organics, particulate 
matter, even dioxins in some cases.
    Addition of fabric filters can take longer than a year.
    I will not talk about the court action, although I am happy 
to in my remarks, and we certainly have a section in my written 
testimony.
    In summary, I would just like to say that continuing to 
have a 90 percent reduction option is extraordinarily 
appropriate in my mind for mercury. Ninety percent reduction in 
mercury emissions from coal-fired plants is achievable. It is 
an appropriate requirement of S. 2643. I applaud the fact that 
that piece of legislation would look at more than just mercury, 
would be multi-pollutant in its approach.
    And I would suggest only one, with respect, potential 
modification, which is to do what we have done in New Jersey, 
which is to provide an emission rate option, so that you have 
an option of 90 percent removal or a rate of emissions per 
megawatt hours, say, or megawatt, such that if you start with 
very low mercury coal, you are not trying to get to an 
extraordinarily low level of mercury if you mandate 90 percent 
across the board.
    I do not believe emission trading for neurotoxins is an 
appropriate approach, frankly. Mandating a Section 112 MACT 
performance standard will ensure that kind of trading does not 
occur.
    I also believe we need MACT standards for all hazards. 
Thank you very much.
    [The prepared statement of Ms. Jackson follows:]

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    Senator Carper. Commissioner Jackson, thank you for your 
testimony.
    Given the experience that you have in New Jersey, what you 
have done is actually quite relevant to what we are considering 
here today. So we are grateful for the example and also for 
your input.
    We are going to recess the hearing for about 35 minutes or 
so. We are in our first vote, we have about three more to 
follow, and I hope to be back to reconvene at about 12:15. For 
this time, the hearing is recessed.
    [Recess.]
    Senator Carper. We just finished four votes, now we are 
done, we will be able to complete our hearing and go on with 
our lives.
    Dr. Durham, you are next. You are recognized for 5 minutes 
and your entire statement will be part of the record for you 
and for each of our other witnesses. Thank you for your 
patience.

    STATEMENT OF MICHAEL D. DURHAM, PRESIDENT AND CEO, ADA 
                    ENVIRONMENTAL SOLUTIONS

    Mr. Durham. Thank you, Senator Carper.
    Good morning. I am Michael Durham, President of ADA 
Environmental Solutions, a company that develops and 
commercializes air pollution control technology. I am here 
today as an officer of the Institute of Clean Air Companies, a 
national trade association of more than 100 companies that 
supply air pollution control and monitoring technologies for 
electric power and industrial plants. We thank you for the 
invitation to testify on the status of mercury control 
technologies.
    When I first testified to this Committee in 2002, we had 
completed only two full-scale tests of activated carbon 
injection. While we had achieved 90 percent capture of mercury 
in the first test on eastern coal, we discovered limitations of 
the technology in the second test on western coal. This issue 
is highlighted in a January 2005 report to this Committee, 
referenced earlier by Senator Voinovich, in which EIA projected 
the legislation requiring 90 percent mercury control could cost 
$358 billion.
    Since 2002, the science and understanding of mercury 
control has moved rapidly from R&D into full system deployment. 
Through funding for DOE, EPRI and power companies, we have been 
able to discover the root cause of, the limitations on western 
coals and successfully develop different solutions so that now 
90 percent capture can be readily achievable. Today, control of 
mercury on western coal represents our easiest and lowest-cost 
application for mercury control.
    Demonstrations have also been conducted on other control 
technologies, such as mercury removal in wet scrubbers, and 
enhancements such as oxidizing catalysts. ACI has now been 
tested full-scale on over 50 plants, representing a variety of 
power plant configurations burning different coals. Today we 
have more operating and performance data on mercury control 
than was available for any other pollutant prior to Federal 
regulation. Recent analyses by DOE and EPA suggest that cost 
will only be a small fraction of early EIA estimates.
    Following the rapid development of a number of viable 
control technologies, strict regulations were enacted over a 
dozen States, and new power plants were required to achieve 90 
percent capture. This has created a healthy market for 
commercial mercury control technology and today vendors are 
actively installing systems across the Country.
    In addition to mercury that will be captured as a result of 
the installation of SO2 scrubbers and NOx 
control catalysts, there have been over 85 commercial contracts 
awarded for ACI. Systems are being installed on new and 
existing power plants representing 40,000 megawatts of power, 
approximately 12 percent of the fleet.
    Because of the simplicity and versatility of ACI, systems 
were purchased for boilers with different equipment 
configurations ranging in size from 50 to 900 megawatts, 
burning all three of the U.S. coals, including bituminous, sub-
bituminous and lignite. In addition to these 85 contracts, 
another 70 ACI systems will be awarded in the next 2 years to 
meet the latest State regulations.
    As you consider a Federal mercury regulation, you should be 
aware that because of differences in the age, location and 
design of the 1,100 plants within the U.S. fleet, there will be 
significant plant by plant variations in cost and technical 
difficulties of achieving high levels of mercury control. There 
have been similar challenges faced by other regulated 
pollutants that have spurred the development of a suite of 
technology options for each pollutant.
    ICAC recommends that you consider flexibility in the 
legislation as a way to address differences in plant by plant 
operations. Flexibility can reduce overall costs, and alleviate 
burdens for the most challenging applications. A well-designed 
program with flexibility can ultimately achieve greater 
reductions in mercury emissions without jeopardizing the 
reliability of electricity supply.
    There are a number of examples of flexibility in recent 
State mercury regulations, such as system-wide averaging, two-
phase approach, soft landings and safety valves. You might also 
consider the fact that all mercury control technologies 
incorporate interactions with other air pollution control 
equipment, often resulting in co-benefits. Therefore, costs can 
be minimized under a multi-pollutant regulatory framework in 
which decisions about mercury can be integrated with strategies 
to address the other criteria pollutants.
    In summary, I would like to add that there are still 
challenges remaining for some power plant applications that 
provide opportunities for technology innovations and further 
cost reductions. We are working with the electric power 
industry to develop and implement new clean coal technologies 
to continue the progress the industry has made over the past 
decades burning coal with significantly lower emissions.
    Thank you.
    [The prepared statement of Mr. Durham follows:]

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    Senator Carper. Dr. Durham, thanks, and I look forward to 
following up on some of the points that you have raised during 
our Q&A. Thank you.
    Dr. Benson, welcome.

   STATEMENT OF STEVEN A. BENSON, SENIOR MANAGER, ENERGY AND 
   ENVIRONMENTAL RESEARCH CENTER, UNIVERSITY OF NORTH DAKOTA

    Mr. Benson. I would like to thank the Chair and members of 
the Committee for the opportunity to testify today. I am a 
senior research manager at the Energy and Environmental 
Research Center at the University of North Dakota.
    At the EERC, we conduct research, development and 
demonstration projects on a wide range of energy and 
environmental issues, including energy production and 
environmental issues associated with the utilization of 
renewable as well as fossil energy resources. For the past 20 
years, we have been involved in the development and testing of 
mercury measurement and control technologies in bench, pilot 
and full-scale systems. To date, we have conducted mercury 
emissions control testing in over 80 power plant units that 
fire lignite, sub-bituminous and bituminous coals in the United 
States and Canada.
    Today I will provide a perspective on the status of mercury 
control technologies and coal-fired power plants. Over the past 
5 years, a variety of technologies have been tested, including 
sorbents to capture mercury, such as activated carbons, metals, 
silicates. There has been chemical addition and catalyst used 
to oxidize mercury to a soluble form for capture in scrubbers, 
as well as combinations of sorbents and oxidizing agents.
    While significant progress has been attained for achieving 
greater than 90 percent removal of mercury from combustion flue 
gases for selected coals and selected system configurations 
during short-term testing, technology necessary to maintain 90 
percent mercury control throughout the coal-fired fleet has not 
been demonstrated adequately to ensure long-term performance 
and reliability. Demonstrated technology performance and 
reliability to meet mercury emission standards is essential to 
ensuring reliable electricity generation at low cost.
    I will comment on both performance and reliability relative 
to mercury control technologies. Typically, the most important 
factors that limit technology performance are coal composition, 
coal composition variability and plant configurations. Remember 
that coal fired, plant configurations and operations are 
typically unique to each plant.
    We found that in order to attain optimum mercury capture 
performance, the technology must be tailored based on the forms 
of mercury in the flue gases, which are driven by coal 
composition, system configuration and operating parameters. For 
example, injection of plain and enhanced activated carbon 
upstream of particulate control devices in power plants has 
shown greater than 90 percent control in some cases. However, 
in other cases, difficulty in obtaining greater than 60 percent 
mercury control has been observed, even with injection of high 
levels of enhanced activated carbon.
    Broadly applying mercury control technologies across the 
fleet of more than 1,200 power plants requires long-term 
demonstrated performance of the suite of technologies based on 
fuel type and plant configuration. Technology reliability is 
essential for the electric power industry. The technologies 
must provide high levels of mercury removal efficiency 24 hours 
a day, 365 days a year, as a function of fuel variability, 
plant operations and seasonal changes. Uncertainties exist in 
the ability of the technology to maintain high levels of 
mercury control if changes occur in coal composition, fuel 
blending ratios and load conditions. In addition, concerns for 
the performance of the technology under very low temperature 
conditions and high temperature conditions exists.
    In conclusion, we have made significant progress in the 
development of mercury control technologies for coal-fired 
power plants. However, unresolved issues remain. The wide range 
of coal types, plant configurations, increases the 
uncertainties in the ability to effectively control mercury 
emissions. Less than 10 percent of the power plants in the 
United States have been tested. Technology performance is 
typically based on short-term testing of a few hours or a 
month.
    Longer term testing of mercury emissions control 
technologies on selected power plant configuration and fuel 
properties as needed to reveal any unintended environmental 
side effects of the mercury control strategy, identify and 
minimize the effects of sorbent poisons, such as 
SO3, and also identify other balance of plant 
issues, such as corrosion that may limit the lifetime of the 
power plant. Longer term testing must be designed to address 
these remaining issues, as well as refine the technologies to 
ensure that the electric utility industry can meet new mercury 
standards while providing low cost, reliable electricity in the 
future.
    However, the number of projects and programs on mercury 
control have dropped off sharply recently and the funding for 
future long-term testing is very limited and in some cases, has 
been zeroed out.
    Thank you for the opportunity to testify and I will be glad 
to answer any questions.
    [The prepared statement of Mr. Benson follows:]

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    Senator Carper. Dr. Benson, thank you very much for that 
testimony.
    Now we will turn to Dr. Levin. Welcome, and thank you, sir.

    STATEMENT OF LEONARD LEVIN, PH.D., TECHNICAL EXECUTIVE, 
               ELECTRIC POWER RESEARCH INSTITUTE

    Mr. Levin. Thank you, Chairman Carper, members of the 
Committee.
    I am Dr. Leonard Levin, Technical Executive at the Electric 
Power Research Institute, located in Palo Alto, California. I 
am here at the request of the Senators to discuss some recent 
research findings that relate the sources of mercury to its 
movement in the atmosphere, its ultimate fate when deposited to 
U.S. waterways and to the fish populations that live there, and 
how those findings relate back to mercury source management.
    Mercury reaches humans primarily by the consumption of fish 
that may have elevated mercury levels. For that reason, public 
health benefits can in part be indirectly evaluated by how much 
less mercury deposits from the atmosphere to waterways 
containing these fish, once controls are placed on mercury 
sources. One newly published study provides a good picture of 
links among U.S. and global mercury emissions, how those have 
changed over the last 10 years and what we can expect to see in 
the resulting deposition of mercury in the United States from 
the atmosphere.
    This study, and other new findings based on observed data, 
join a record of extensive modeling studies over the past few 
years, to provide a more understandable picture of the benefits 
to public health from regulating U.S. mercury sources. There 
are some key points relating to mercury deposition that relate 
back to this link between source controls and public health 
benefits. First, every source of mercury to the atmosphere 
emits three principal forms kinds of mercury. These three forms 
behave quite differently in the environment. One form of 
mercury is water soluble and is readily washed out of the 
atmosphere by precipitation. The other two forms of mercury are 
not water soluble and are more likely to be dispersed by large-
scale wind patterns and pass out of national airspace before 
eventually being removed from the atmosphere at greatly reduced 
levels.
    Second, more than 95 percent of global emissions of mercury 
originate outside the United States. Some of this global 
emissions total will deposit within U.S. waters. This 
establishes in essence a limit on how much the mercury entering 
fishable U.S. waters can be reduced by controls on U.S. sources 
alone.
    Third, by far, most of the fish consumed by women of child-
bearing age in the United States, the most sensitive 
individuals via potential exposure of developing fetuses, are 
sold in commerce and are harvested in the North Pacific, upwind 
from the United States, or come from farmed fish. For that 
reason, even severe cuts in U.S. emissions are bound to have 
limits on how effective they are in reducing U.S. mercury 
exposure generally.
    It is increasingly evident that specific control approaches 
tailored to the particular source being managed will provide 
the greatest return in overall public health benefits. The 
continuing development and testing of new control technologies 
is a needed step in this process. The forms of mercury emitted 
dictate that, beyond a certain point for each mercury source, 
further controls will lead to less and less additional health 
benefit.
    Together, all these factors and the scientific evidence for 
them call for close scrutiny of mercury in the U.S. both prior 
to and following any control steps. That scrutiny is just 
beginning with testing of required new measurement methods and 
the initial design of a multi-year national monitoring network 
for environmental mercury.
    We should not anticipate rapid and obvious declines in fish 
mercury everywhere in the Nation once even the largest mercury 
sources are controlled, but instead look forward to an extended 
effort to manage mercury wisely and be vigilant about any 
resulting environmental health benefits.
    Thank you.
    [The prepared statement of Mr. Levin follows:]

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    Senator Carper. Dr. Levin, thank you so much.
    Ms. Patton, thank you for joining us today.

      STATEMENT OF VICKIE PATTON, DEPUTY GENERAL COUNSEL, 
                   ENVIRONMENTAL DEFENSE FUND

    Ms. Patton. Thank you very much, Senator Carper and Senator 
Voinovich and Senator Barrasso for the opportunity to be here.
    My name is Vickie Patton. I am the Deputy General Counsel 
at the Environmental Defense Fund. I served in EPA's Office of 
General Counsel both in the first Bush administration and then 
also under the Clinton administration, where I had the 
privilege of working with a number of technical experts on air 
pollution.
    In 1990, Congress debated with overwhelming bipartisan 
support an overhaul to the 1990 Clean Air Act Amendments, in 
which it laid out a blueprint to address the most toxic, 
indeed, hazardous air pollutants, including mercury pollution. 
Since that time, since Congress laid out its blueprint for 
action, we have made a lot of progress. We have plowed a lot of 
ground through good American ingenuity and innovation.
    EPA has issued a 1,700 page report to Congress laying out 
the very serious health effects of mercury pollution. The 
National Academy of Sciences has issued a similar report, 
documenting the toxicological effects of mercury pollution. And 
what it has instructed us is that mercury poses a particularly 
serious threat to our most vulnerable populations, our 
children. Since that time, there has been a new body of data 
highlighting the connection between mercury exposure and the 
environment and heart disease, cardiovascular effects.
    At the same time, a number of scientists have looked at the 
societal benefits of controlling mercury pollution from coal-
fired power plants, the Nation's largest source of man-made 
mercury pollution. Scientists at the Harvard Center for Risk 
Analysis examined the societal, the monetary benefits of 
protecting Americans from the cardiovascular effects, from 
heart disease, children from cognitive developments.
    Similarly, a group of scientists at Mount Sinai Medical 
Center teamed up with scientists at Children's Hospital and 
they conducted an assessment of the benefits of protecting 
children, their cognitive development, from mercury pollution. 
Both of these studies revealed that the monetary benefits of 
controlling coal-fired power plants at a high degree were in 
the billions of dollars. Of course, to a parent who is faced 
with a young child who has been exposed to mercury pollution, 
the value of protecting that child and securing its potential 
is priceless.
    While we have been looking at the very serious health 
effects, American engineering firms have been demonstrating the 
great capacity to control mercury pollution. There have been 
pilot scale tests, there have been full-scale tests, we have 
examined the potential to control mercury at all coal types: 
lignite coals, bituminous coals, sub-bituminous coals, at all 
sorts of control technology configurations. And today, if you 
look at the Institute for Clean Air Companies website, you will 
see that there 90 bookings for advanced mercury controls at 
coal plants across the Nation, all parts of the Country, 
burning all sorts of coal types with all different kinds of 
control technology configuration.
    These bookings reflect some 40,000 megawatts of coal-fired 
capacity in America. This is good news. And it is not 
surprising, because 10 years ago, when EPA put in place a 
protective program to control mercury, 90 percent for medical 
waste incinerators and trash combusters, it was the same 
technology that proved that we could in fact reduce mercury 
dramatically from those sources of pollution.
    While we have made great strides in terms of understanding 
the health effects of mercury and American innovation in 
bringing technology to bear, our national policy has faltered. 
EPA has put in place a flawed program to address this 
neurotoxin, using a meager trading program, a trading program 
that would in its first phase reduce mercury by only 20 percent 
and postpone any meaningful reductions for yet another 
generation of children. While Environmental Defense Fund has 
been a strong proponent of trading programs and using market-
based mechanisms to solve environmental problems, trading is 
inappropriate for a neurotoxin that has very serious health 
effects.
    In fact, there are a body of studies that show us that 
coal-fired power plants are associated with depositional 
hotspots. There was a landmark study done by EPA scientists and 
Michigan scientists in Steubenville, Ohio that associated coal-
fired power plants with some 70 percent of the mercury 
deposited at this monitoring site that operated for 2 years 
continuously at the Franciscan University in Steubenville, 
Ohio. Similarly, scientists have looked at thousands of data 
points across New England and found evidence of serious 
biological hotspots. They have done sophisticated modeling 
analysis to show that if you reduce mercury in the immediate 
vicinity of where we are finding hotspots of mercury in the 
common loon and the yellow perch that it will have significant 
benefits.
    But we also have real world empirical studies where State 
scientists in Florida looked at the benefits of reducing 
mercury from medical waste incinerators and combusters in South 
Florida. What they found is when they cut pollution 90 percent 
from those units that there was an immediate and commensurate 
response in the health of the Everglades in South Florida. So 
the mercury pollution in largemouth bass has been demonstrably 
reduced, as has other evidence of mercury pollution in the 
environment, and the grand egret.
    So there are lots of examples where we know that when we 
reduce mercury pollution in our local environment, it has real 
world benefits. And we can demonstrate that through real world 
studies.
    Sometimes when we debate air pollution issues in America it 
is easy to kind of lost sight of time, it is easy to lose sight 
of the perspective because we get caught up in issues about 
technology, we get caught up in issues about D.C. Circuit 
cases. But I want to thank you, Senator Carper and Senator 
Voinovich, for trying to help keep America's eye on the ball 
and ensure that we don't lose our perspective and lose our way. 
Coal-fired power plants are the Nation's largest single source 
of man-made mercury pollution. The National Academy of 
Scientists issued a seminal toxicological study in which it 
found that the children who are exposed at these environmental 
levels to mercury pollution may struggle to keep up in school, 
they may require remedial classes, they may require special 
education. This has real world impacts in thwarting the 
potential of our children.
    EPA's own toxicologist, Dr. Kathryn Mahaffey, looked at 
umbilical cord data. What she found is some 630,000 children 
each year are exposed to mercury levels that can impede their 
neurological development. This is EPA's own toxicologist. If 
you look at the consequences over the last 18 years of debate 
and delay, that means some 11 million children have been 
exposed to mercury pollution in our environment. While we have 
struggled federally to solve the problem, States have really 
charted the way. States across the Country have adopted very 
protective programs to address mercury pollution.
    So with your leadership, I would like to respectfully 
request that we follow the lead of the States like Delaware and 
Illinois and Arizona and Colorado and Oregon and Washington and 
New Jersey and Massachusetts and Michigan that have adopted 
very protective programs, and we do the same to ensure that 
each child can realize its full potential. Thank you very much.
    [The prepared statement of Ms. Patton follows:]

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    Senator Carper. Thank you very much.
    Senator Voinovich has to leave at 1 o'clock. I am going to 
ask just one question and then turn the time over to Senator 
Voinovich for his questions.
    My question is, and this really is a question that draws 
from Senator Voinovich's earlier comments and concerns, I will 
attempt to paraphrase him. Among the concerns that he and a 
couple other of my colleagues and one or two of our witnesses 
has raised is, is there technology in existence today that will 
actually enable us to reduce our emissions from most different 
kinds of mercury, from different kinds of coal, different kinds 
of plants? Do we have the technology today that would enable us 
to reduce emissions by 70, 80 or 90 percent or more? That is 
the first part of the question.
    If we do, or if we don't, let's say if we don't, is it 
really going to cost something like $300 billion, I think that 
was one of the numbers I heard, over $300 billion to actually 
develop the technology and implement and deploy it across the 
thousand-plus coal-fired plants? So the cost of deployment, Dr. 
Durham, I think I heard you say the cost is actually a good 
deal less than that.
    A third related question is cost benefit analysis, given 
whatever cost it is likely to take, does the benefit actually 
convince us that we ought to undertake the cost? And last, a 
concern that Senator Voinovich is consistent in raising in 
hearings of this nature, is the question of fuel shifting. Half 
of our electricity comes from coal. The concern is, if we 
undertake this step to dramatically reduce mercury emissions 
over the next half dozen or so years, what does that do for 
folks who are paying their utility bills? Also, what does it do 
in terms of encouraging fuel shifting to natural gas, something 
we don't want to encourage?
    Commissioner Jackson, given the experience you have had in 
New Jersey, could you start off, please?
    Ms. Jackson. I am happy to, Senator, thank you. New 
Jersey's experience is that the technology is available today 
for our plants. It is either in implementation, being 
implemented now and we expect to see full implementation easily 
well in advance of 2012, which is our latest deadline for 
implementation. Our rules gave until 2007 if you were only 
controlling mercury. But if you were doing a multi-pollutant 
approach, you have until 2012. We will probably make 2010 for 
our ten plants.
    In terms of cost, I will defer to Dr. Durham. But clearly, 
our experience has been whether it is municipal incinerators or 
these plants that it this is a low-cost, carbon injection has 
proven to a very low-cost alternative. The benefit of making 
sure that you have good particulate control extends beyond 
mercury to a range of other potential pollutants, not to 
mention particulates.
    Senator Carper. So your experience in New Jersey is that 
the technology is available now, the cost is not prohibitive 
for the plants it is being incorporated into. Thank you.
    Dr. Durham?
    Mr. Durham. In the study referenced by Senator Voinovich by 
EIA, those costs were based around the fuel switching issue. At 
the time, we were struggling with controlling mercury from 
western coals. So with a premise that EIA could only consider 
technologies capable of achieving 90 percent without technology 
for western coals, it assumed they would all have to switch to 
natural gas.
    Since then, we have come up with technology solutions for 
the western coals that are significantly lower than we had ever 
hoped for. And as a result, most of the commercial mercury 
control systems being sold today on new power plants, most of 
them burn western coals, achieving 90 percent. The first one, 
the permit for a new power plant, the Council Bluffs Station, 
is now operating at a level of about a factor of five lower 
than the system was designed for. So it is using a fifth the 
carbon it was designed for and achieving 90 percent. The first 
commercial system on an existing power plant has been operating 
over a year at 90 percent mercury removal on western coal.
    So the issue around switching away from western coals 
because of this has actually been switched because of 
technology advances. Now western coals are our easiest and 
cheapest application.
    Senator Carper. Let me turn to Senator Voinovich. I want to 
make sure he has some time before he has to run off. Senator 
Voinovich.
    Senator Voinovich. You are basically taking it down the 
road I was going, thank you.
    If I heard correctly before, if you do aggressive 
SOx anSOx reduction, you get co-benefits. 
Does anyone want to comment about how much reduction do you get 
from that procedure? In other words, the argument is that when 
we looked at this the last time that the cost of the controls 
for mercury were very expensive and that we would be better off 
not mandating a high level and that we would give the 
technology a chance to mature and take advantage of co-benefit, 
which does reduce the mercury emissions. That is a comment on 
that.
    The second question is the one I asked the other panel, and 
that is the difference between 70 and 90 percent, in so many 
instances, how much more health benefit are you going to get 
between 70 and 90 percent? And how much additional cost do you 
incur by going that extra 20 percent? So the first question I 
think would be just how much are we getting when we have co-
benefit?
    Dr. Durham. The co-benefits issue is primarily on eastern 
coals. That is because as Dr. Levin talked about, different 
forms of mercury are produced. The eastern coals produce a form 
that can be captured in the wet scrubbers. So the use of wet 
scrubbers for capturing mercury is probably one of the primary 
means of capturing mercury.
    Senator Voinovich. In other words, when you use high-sulfur 
coal, you use scrubbers. When you use scrubbers, you reduce the 
mercury emissions. When you use low-sulfur coal, in many 
instances you don't use the scrubbers and as a result, you 
don't get the co-benefit because you are not using scrubbers?
    Dr. Durham. Not necessarily. Actually, many of the plants 
burning western coals do have scrubbers. But the form of 
mercury that is created by the western coals is not removed in 
a scrubber, because it is not water soluble. So the issue of 
co-benefits is pretty much localized around the eastern coal 
applications. That range is, I think Dr. Benson mentioned 60 to 
90 percent. We're looking at ways of enhancing it. Dr. Levin's 
organization, EPRI, is doing a lot of work on enhancing how do 
we get more of that co-benefit, either by oxidation catalysts 
or improving the chemistry within a scrubber to try to assure 
that 90 percent level for the scrubbers on eastern coals.
    Senator Voinovich. Dr. Levin.
    Mr. Levin. My specialization in particular is on 
environmental effects of mercury. Regarding the health benefits 
that the Senator referred to, the modeling that we have looked 
at shows that in moving from a 70 percent to a 90 percent 
national control goal, there is decreasing health benefit as 
measured by lower deposition into U.S. waters resulting from 
going between 70 percent and 90 percent. The reason is that the 
incentive for any source is to capture early and more readily 
the water-soluble form of mercury at the emission point, and 
then to later introduce controls such as activated carbon that 
will more effectively capture the less water-soluble form.
    The problem is that this elemental form of mercury, because 
it is less water soluble, is also less likely to be deposited 
within the United States, more likely to be widely dispersed 
into the atmosphere. Some of it will eventually deposit to the 
United States. Most of it will remain in the atmosphere or be 
deposited elsewhere around the globe.
    That is the reason that there is not a commensurate 
decrease in deposition, and therefore potential health 
benefits, in going from 70 to 90 percent. You would hope to 
find an additional 20 percent increase in health benefits. 
Instead what we find is deposition decreases of anywhere from 5 
to 10 percent; in many cases less than 5 percent, due to that 
additional 20 percent control level, because of the different 
form of mercury that is being captured at the margin.
    Senator Voinovich. Dr. Benson, do you want to comment on 
that?
    Mr. Benson. Relative to the control technologies and the 
effectiveness of control technologies, it is very coal-
dependent. Typically, we get the opportunity to work on very 
challenging cases of mercury capture where there are poisons 
and that impact the ability of mercury control technologies to 
capture the vapor phase mercury.
    With respect to the co-benefits, I agree with Dr. Durham's 
perspective. There are ways to enhance western coals for SCRs 
and scrubbers to capture the mercury but you need to add 
something like a chemical or enhance the operation of a 
catalyst to make sure you control the mercury emissions.
    Senator Voinovich. Thank you. I appreciate it.
    Senator Carper. Let me go back and ask the panel, someone 
mentioned the word flexibility and why it was important that we 
just not mandate a particular standard for every single power 
plant, but to realize that there are differences in coal, there 
are differences in the way these plants operate. Could somebody 
just take a minute and talk to us about flexibility? I don't 
know if it was Ms. Patton or Dr. Durham, but someone mentioned 
the need for flexibility in terms of as we go forward with 
legislation.
    Dr. Durham. As we have talked about, each plant was 
designed with different equipment, different coals, all these 
characteristics. Even for plants that may be identical, we see 
differences in operation. So the flexibility comes about in 
that there are going to be some that can easily achieve 90 
percent, and others, it is going to be a struggle where it may 
end up being two or three times the cost to get 90 percent 
mercury control from that one unit.
    And it may be an issue that you can have two operating 
units, one that Ms. Jackson mentioned that got 95 percent. That 
could be sitting next to an identical unit that is only getting 
85 percent. With some flexibility to average those at 90 as 
opposed to now, how do we get that 85 to 90, it may cost twice 
as much as it took to get from zero to 85. So that kind of 
flexibility allows balancing, it allows the utility to consider 
low-cost options across their fleet.
    Senator Carper. That is a very helpful point.
    I have a question, if I could, for Commissioner Jackson, 
please. The actions taken and the results achieved by the 
Garden State to reduce mercury pollution are, I think most of 
us would have to agree, impressive. How would a Federal rule 
build on the health benefits realized by your State's action?
    Ms. Jackson. Thank you, Senator. A Federal rule would, 
quite simply, eliminate or at least begin to eliminate the 
mercury emissions that come to us from upwind, which we believe 
remain and are significant. We have done a lot of work to 
address our plants and our neighbors downwind, but we are 
looking for help from the Federal Government. New Jersey is not 
un-used to going first, but we tend to look back and hope that 
the rest of the Country will join us.
    Our experience is, this is not expensive. A small amount of 
flexibility goes a long way. The ability to look at an annual 
average gives plants a lot of ability to manage their 
individual plant emissions. And we would look for some 
recognition that averaging across the fleet might be too large 
an area, that looking at a plant or an area might make sense. 
But we are very concerned about our upwind neighbors.
    Senator Carper. Thank you.
    Let me ask a question of Ms. Patton. In your opinion, why 
do you suppose EPA would want to regulate mercury through a cap 
and trade regimen, but be against a cap and trade approach for 
CO2?
    Ms. Patton. Senator Carper, the history with emissions 
trading is a very robust and good history. When Congress in 
1990 applied emissions cap and trade system to the challenge of 
reducing sulfur dioxide by millions of tons, the Nation secured 
very important health and environmental benefits at a fraction 
of the estimated cost. So it doesn't make sense for the 
Environmental Protection Agency to oppose addressing the urgent 
challenge of global warming with the same tool that has proven 
so effective in securing societal benefits at a fraction of the 
cost. We would hope that EPA does, as it grapples with these 
issues, look at the authorities it has under the Clean Air Act 
to address global warming, pollution in a thoughtful, cost-
effective way, in the same way that we have addressed other 
problems.
    But with mercury, we have to be very judicious in how we 
use emissions cap and trade tools and emissions trading tools, 
because if we misapply them and we don't apply them constant 
with what the science tells us and what is necessary to protect 
human health, not only do we risk creating hot spots or not 
addressing the problem we set out to address, but we undermine 
the legitimacy of these very important public policy tools in 
the public square and that doesn't serve anyone's interest.
    Senator Carper. Thank you.
    A question for Dr. Durham, then I have one last question to 
ask Dr. Levin and Dr. Benson. I will just telegraph my pitch 
and tell you what I am going to ask you so you can think about 
it while I ask this question of Dr. Durham.
    If we were to go down the road and adopt legislation in 
markup and Committee and take to the floor legislation similar 
to that which a number of us have co-sponsored on mercury, what 
would be some advice that you would have for us? Similar to 
what Dr. Durham said, he said make sure you provide for some 
flexibility. If you have one plan alongside another, 85, 95 
percent example that he gave us, to get 85 percent up to 90 
costs a whole lot of money, and just make sure that we can take 
advantage of the 95 percent, which was more cost-effective, and 
settle for 85 percent in the other plant. That is the kind of 
advice I would welcome for our consideration today.
    While you are thinking about that, let me ask Dr. Durham 
one last question. What impact do you suppose we see with the 
multi-pollutant regulation like the Clean Air Planning Act that 
a number of us have co-sponsored and introduced? What impact 
would it have on the cost effectiveness and overall efficiency 
of control technology?
    Dr. Durham. As I mentioned, Senator Carper, all of the 
mercury control technologies interact one way or another with 
one of the other air pollution control systems. There is no 
single box for mercury control. So for example, on the eastern 
coals, one of the most cost effective approaches is through 
what started out as the CAMR program, building on the CAIR, is 
that we are going to get a lot of mercury capture in scrubbers 
and SCRs for NOx control. They can be modified, our 
companies have technologies for improving the mercury removal 
in scrubbers and improving what a catalyst can do for that. So 
that would be very significant.
    On the ACI technologies, the addition of fabric filters not 
only enhances the mercury capture in an ACI system, it lowers 
the amount of carbon that is being used and has a co-benefit of 
increased fine particle capture. So because of these 
interactions, it is really difficult to make a decision about 
mercury in a vacuum. It is much more cost effective if you 
consider all the other pollutants at one time.
    Senator Carper. Thank you.
    Dr. Benson and Dr. Levin, if we are to proceed with this 
legislation, what are some things you would have us keep in 
mind to address some of the concerns that you have raised and 
maybe the concerns that others have raised, including my 
colleagues?
    Mr. Benson. I think one of the key things you need to keep 
in mind is that there is a wide distribution of fuel types, 
there is a wide distribution of power plant types that are out 
there. Dr. Durham has indicated, some of them are going to be 
fairly easy, fairly cost effective to enhance the mercury 
control, or to provide mercury controls that can meet 90 
percent and above.
    However, for other power plants, because of either a coal 
property that is different or a blending scenarios, something 
in the operations, mercury is very difficult to control. 
Allowing some flexibility, since most mercury control 
technologies are tailored to a specific coal type, boiler 
operations, as well as a design so you can meet the 90 percent 
standards, or, it depends upon the cost of getting there.
    In some cases, equipment will have to be added to a plant, 
in other cases all you need to do is add in an oxidizing agent 
and an activated carbon for example. Flexibility and an 
understanding that tailoring is required for optimum mercury 
control.
    Senator Carper. Thank you, sir. Dr. Levin, the last word.
    Mr. Levin. Thank you. If the ultimate goal of environmental 
regulation is the protection of human health and welfare, it is 
not sufficient to control sources without monitoring the 
results and being vigilant about the effects of that regulation 
on human health, in particular. For that reason, it is 
important that the national monitoring program of mercury in 
the environment proceed as quickly as are the steps to impose 
controls on mercury sources of any sort.
    That mercury monitoring network has barely begun at the 
moment and has to increase substantially in effort and in time 
and spatial coverage, as well. The first steps of that effort 
were taken several years ago with a scientific meeting in 
Florida to designate the compartments of the environment that 
should be monitored for changes in mercury over time as sources 
change. The most recent step was the meeting in Annapolis last 
week of scientific specialists under EPA's sponsorship to get 
down to more detailed monitoring network design.
    The bill that was before the Senate last year to institute 
a large national effort with Federal agencies to undertake a 
measurement and monitoring network was a good step toward that 
as well. I think that effort to look at the consequences of 
controls is a very important and integral part of the national 
effort.
    Senator Carper. Thank you both.
    For our other witnesses, any other very brief closing 
comments that you would like to leave us with before we turn to 
our final panel? Commissioner?
    Ms. Jackson. Thank you, Senator. I would just like to 
emphasize again, I would ask the Committee to consider a hybrid 
standard, a removal percentage and perhaps a mass rate per 
megawatt hour, which would allow flexibility but still give a 
strong regulatory signal and a strong regulatory standard that 
could be measured easily and effectively and I think at a low 
cost.
    Senator Carper. Good. Thank you. Dr. Durham? Just a very 
brief closing statement.
    Dr. Durham. Yes, Senator. Again, just to emphasize that 
technology is making huge advances, it will continue. There are 
still challenges out there, but a rule with flexibility will 
assist that situation and regulations provide the certainty for 
investments in this activity.
    Senator Carper. Thank you. Ms. Patton, just a very brief 
closing comment.
    Ms. Patton. Sure. I would just respectfully request that 
any flexibility be firmly rooted in science and fleet-wide 
averaging has the risk of creating uneven distribution of a 
neurotoxin. So you can achieve a great deal of flexibility 
through a plant-wide approach rather than unit-specific limits 
and through the annual averaging that Commissioner Jackson 
described.
    There was a big mercury meeting in Knoxville, Tennessee 
last month. I brought with me a presentation from Alstom, one 
of the Nation's, if not the world's, largest engineering firms. 
I will just wrap up with the words of the Alstom engineer who 
was there, who said, ``Technology is ready, let's resolve the 
politics.'' With your leadership, we look forward to resolving 
the politics and moving forward to protect children's health.
    Senator Carper. That is a good note to close this portion 
of our hearing on.
    Our thanks to each of you. I apologize that our four votes 
delayed this hearing. Thank you for sticking with us and for 
your testimony and for your willingness to respond to the 
questions that we will submit within the next week. Thank you 
so much.
    Our final panel includes two witnesses, Dr. Linda Greer, 
who is the Director of the Public Health Program of the Natural 
Resources Defense Council, and also Arthur Dungan, who is the 
President of the Chlorine Institute, Inc. It is good to see you 
both. Thank you for joining us today. I regret that you have 
had to wait so long.
    We are anxious to hear your testimony. I will not ask a 
large number of questions but will have a couple of questions, 
I am sure, that I will ask of each of you.
    Dr. Greer, if you will go ahead, and each of you, feel free 
to summarize your testimony. Your entire testimony will be made 
part of the record. Welcome and thanks for joining us.

  STATEMENT OF LINDA E. GREER, PH.D., DIRECTOR, PUBLIC HEALTH 
           PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL

    Ms. Greer. Thanks very much and good afternoon. I want to 
compliment the Committee for holding this mercury hearing and 
particularly for this third panel on mercury export and trade.
    As we have heard today, many people are aware of the great 
problems of mercury contamination of the food supply in our 
Nation and for that matter, many people are also aware of the 
largest source of domestic mercury pollution in the United 
States, which is coal-fired power plants. But most people are 
very much less aware or unaware of another source of global 
mercury pollution, a very important source, which is from the 
intentional use of mercury as a commodity metal in industrial 
process and processes.
    Unfortunately, most of those uses occur in the developing 
world in very highly polluting industries, particularly such as 
artisenal and small-scale mining, where mercury is released 
virtually uncontrolled in very large quantities every year. 
Unfortunately also for us, mercury is a global pollutant. There 
has been a lot of hand-wringing about that today in this 
hearing. And as a result of that, mercury used and abused 
elsewhere in the world comes right back at us, both in our air 
currents over the Pacific Ocean, also in the fish that we eat, 
because 75 percent of the fish that Americans eat is imported 
fish. Much of this fish is swimming in the South Pacific off 
the shores of countries that use very large quantities of 
mercury and release a lot of mercury pollution.
    The solution to this problem is not to stop eating fish, 
which is otherwise a very healthy food for us. The solution to 
the problem is to stop global mercury pollution. And as we have 
already mentioned today in other testimony, to address this 
comprehensively requires that we address the global stage and 
not just mercury within our own borders.
    So really the key question for us in the United States is, 
what should we be doing about global mercury pollution; what is 
the contribution that we can make to most substantially reduce 
the mercury in our food supply?
    Well, we in the United States have already substantially 
reduced our use of mercury within our borders. We have gone 
from about 2,000 tons a year in 1980 to less than 500 tons a 
year in the year 2000. That downward trend is continuing. I 
believe Art Dungan will talk about that from his own industry 
after me.
    Studies therefore reveal that where we really are making a 
contribution, a continuing and large contribution, is in 
supplying mercury to other users around the globe. The single 
most important thing that we could do in this Country to stem 
the tide of mercury pollution globally would be for us to 
curtail the surplus mercury that we are no longer using that we 
are sending into global trade which is then being used in these 
highly polluting industries, which of course, brings us to the 
topic of this third panel.
    So it is a very simple proposition. What we need to do is 
take what we are selling off the global market and store it and 
do it as soon as possible. What is recommended in both the 
House and Senate bills is by 2010.
    And I had to chuckle a few times during your questioning on 
the coal-fired power plants, because in this case, we have very 
low-hanging fruit. There is no question that the technology is 
here today to do this. As a matter of fact, both the Department 
of Defense and the Department of Energy have been safely 
storing vast stockpiles of mercury for decades without any 
major incident.
    As a technical matter, it is quite easy. Mercury is not 
reactive, it is not explosive, it doesn't take up much space. 
NRDC has calculated that it would take essentially one U-Haul 
rental truck to store all of the Nation's exported mercury for 
1 year. And the cost of storage is very cheap, it is 
essentially pennies per pound.
    Mercury is also not a valuable commodity that we are taking 
off the market. The 2006 figures for the value of all of our 
exported mercury was $7.6 million, which is roughly a quarter 
of the quantity of money that was in the tuna industry's 
advertising campaign to get us to eat more of that product.
    In my remaining minute, I have just a couple of important 
details that I would like to hit about the differences between 
the House and Senate bill on the mercury export ban. As you 
know, both the House and Senate introduced bills in 2007. Since 
then, the House bill was subject to extensive review and 
negotiation with interested parties. EPA held four meetings to 
review issues such as U.S. supply and demand, technical 
capabilities to store, cost for storing, et cetera. The result 
was a modification to the Senate bill, S. 906, that creates a 
safe and legal storage option for the mercury that we would 
cease to export into global commerce, and the result is also a 
bill that now has very wide political support.
    There was one misunderstanding that came out earlier in the 
hearing when we were discussing the House bill, when EPA 
witnesses were here. That was whether or not the U.S. taxpayers 
would be paying for this storage. In the House bill, the U.S. 
taxpayers are not paying, the cost is borne by the generators 
of the surplus mercury and is paid to the Department of Energy 
so that it would cover the expenses, not just of day-to-day 
storage, but of any possible problems in the future that might 
occur because of storage.
    So whereas the Senate set up a task force to address the 
storage issue, time has marched on since the introduction of 
the Senate bill. The House basically fast-tracked that task 
force by calling the interested parties together and resolved 
the matters. We are urging the Senate to take a close look at 
this consensus legislation from the House and use the House 
bill as an alternative for markup.
    In closing, I would like to emphasize that the opportunity 
that we have before us will really make a huge difference. The 
U.S. is one of the top five mercury exporting nations. There 
are seven to eight times the amount of mercury that we release 
annually from coal-fired power plants that we ship into global 
commerce every year. For literally pennies a pound, we can take 
out of circulation and out of the hands of extremely poorly 
controlled industrial uses around the world this toxic 
substance.
    Furthermore, industry, State regulators and the 
environmental community agree that this is a good idea and we 
have worked diligently to craft a path forward for safe storage 
that is acceptable to all of us. Truly, if we can't do this in 
2008, we can't do anything. So I hope that we can work together 
in the coming weeks to make good on this opportunity.
    Thank you.
    [The prepared statement of Ms. Greer follows:]

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    Senator Carper. Dr. Greer, thank you so much.
    Mr. Dungan, we are happy you are here. Your whole testimony 
will be part of our record. Please proceed.

    STATEMENT OF ARTHUR E. DUNGAN, PRESIDENT, THE CHLORINE 
                        INSTITUTE, INC.

    Mr. Dungan. Thank you, Mr. Chairman.
    I am Art Dungan, President of the Chlorine Institute and I 
am here representing the Institute. I appreciate the 
opportunity to testify before you concerning mercury 
legislation.
    My testimony will cover the Mercury Market Minimization Act 
of 2007, Senate Bill 906, and the Mercury Export Ban Act of 
2007, House Bill 1534. In the United States, there are 
currently six facilities that produce chlorine using the 
mercury cell process. Of these six facilities, two have 
announced their intention to convert to another technology 
within the next 12 to 24 months. The remaining four plants, and 
possibly a plant scheduled for conversion, would be affected by 
this bill.
    The Chlorine Institute and the chloralkali producers using 
the mercury cell process have worked aggressively and 
voluntarily to reduce mercury usage and releases to the 
environment, and have worked cooperatively with all agencies as 
they set regulatory standards limiting mercury releases.
    In 1996, the Chlorine Institute and the mercury cell 
producers voluntarily agreed to reduce mercury use by 50 
percent. As indicated in our most recent annual report to EPA, 
the overall reduction in annual mercury usage in the tenth year 
was 92 percent.
    The Chlorine Institute wishes to comment on Sections 3 and 
4 of Senate Bill 906. The Institute supports Section 3, which 
prohibits the sale or distribution or mercury by the Department 
of Defense or the Department of Energy. Mercury needed by the 
United States industries can amply be supplied by private 
mercury sources. Concerning Section 4 of the bill, the 
Institute is opposed to establishing a ban on mercury exports 
until the United States has a program established and in place 
for the permanent storage of mercury.
    Implementation of an export ban will not only affect the 
remaining mercury cell plants but other sources of mercury. 
Over a 40-year period, other domestic sources of mercury, such 
as byproduct mining and recycling programs, will have a far 
greater contribution to the United States mercury supply than 
the chloralkali industry. It is estimated that the current 
quantity of net mercury exports is about 300 tons per year. 
With an export ban in place, this surplus mercury will have to 
be stored somewhere. Few options would have the safeguards that 
a permanent, federally managed storage site would have.
    The Chlorine Institute respectfully asks the Committee to 
consider House Bill 1534. When originally proposed in March 
2007, H.R. 1534 was very similar to S. 906. H.R. 1534 as passed 
is the result of several affected stakeholders working 
cooperatively to produce a bill. This coalition included the 
National Resources Defense Council, the Environmental Council 
of States, the American Chemistry Council, the National Mining 
Association and the Chlorine Institute.
    The Coalition negotiated several important changes to House 
Bill 1534. Utmost were the mercury management and storage 
provisions which provide an important viable long-term storage 
solution if an export ban is enacted. The bill also provides 
several other important provisions, including performance 
criteria, indemnification and fees. We urge the Committee to 
adopt H.R. 1534.
    In summary, the Institute is opposed to a prohibition of 
the export of mercury unless and until the United States has a 
program established and in place for the permanent storage of 
mercury. The Institute supports the establishment of a Federal 
stockpile for the permanent storage of surplus mercury. The 
Institute supports H.R. 1534 as passed by the House and urges 
the Senate to pass the same legislation.
    I thank you again for the opportunity to appear before the 
Committee and share the Chlorine Institute's views.
    [The prepared statement of Mr. Dungan follows:]

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    Senator Carper. Mr. Dungan, thank you very much.
    A couple of questions, if I could, for Dr. Greer and then 
one for you, Mr. Dungan. Dr. Greer, I think you mentioned in 
your testimony that the European Union has already adopted a 
similar mercury export ban, similar to that which we find in 
Senator Obama's bill. Have you seen or have they seen an impact 
on the mercury market as a result of these actions?
    Ms. Greer. Actually, it is not in effect yet. They are in 
our equivalent of conference committee, resolving their two 
editions. So they are ahead of us, slightly. I have a case of 
beer bet on whether the United States gets there before the 
European Union.
    Senator Carper. Which side are you on?
    Ms. Greer. I am definitely on our side.
    [Laughter.]
    Senator Carper. All right. Mr. Dungan, I understand in the 
House legislation, which you endorse, the House provisions on 
the Mercury Export bill, the U.S. Government would charge a fee 
to cover all costs of mercury storage. First of all, is that 
true? And what are your thoughts about adding this provision to 
the Senate bill? I think you may have alluded to this. And 
would you be more inclined to support this bill with that 
provision added?
    Mr. Dungan. Yes. The House bill does include a provision 
for costs. The Department of Energy is supposed to develop the 
actual long-term cost for the storage of mercury and whoever 
supplies mercury to the stockpile would pay that cost. This is 
the lifetime cost, which is basically forever, perpetual cost 
for storing of that mercury. EPA has estimated that would be 
about $3 a pound at a maximum level.
    So industry, whoever puts mercury into that stockpile would 
pay that cost. So the cost to the Government should be zero.
    Senator Carper. All right, good. Thanks.
    One last question, Dr. Greer. I believe, correct me if I am 
wrong, but I believe you stated that major sources of mercury 
contamination in our food come from quite a distance from our 
shores. Do you believe that we should still do nothing to 
regulate the major sources here in the United States from power 
utilities?
    Ms. Greer. No, absolutely not. We really do have to look at 
both sources. Our imported ocean fish, for fish like tuna fish 
and some swordfish, swims very close to these international 
sources of mercury pollution. But for all of our freshwater 
fish and all of our hotspots of contamination, we have no 
choice but to also work on the coal-fired power plants.
    Senator Carper, 15 of the 19 States represented on this 
Committee have mercury restrictions for fishing within their 
States. It is really quite critical for our own sports fish, 
our own health of the Great Lakes and our own coastlines for us 
to be regulating our largest source of pollution, which is 
coal-fired power plants. We need to do both.
    Senator Carper. Good. Thank you. I have other questions for 
each of you, I am not going to ask them now. Our caucus 
luncheon started 45 minutes ago, I am late. And I hope we 
haven't made you late for something as well. But we are really 
grateful to you for being here, for adding significantly to the 
value of this hearing.
    We would ask that you give us another week or so to 
followup, if we have some questions, and if you get them, to 
please respond promptly.
    Thank you again, and with that having been said, this 
hearing is at last adjourned.
    [Whereupon, at 1:32 p.m., the committee was adjourned.]

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