UNITED STATES OF AMERICA ENVIRONMENTAL PROTECTION AGENCY In re: Clean Water Act § 319(g) Petition of the ) States of Connecticut, Maine, New Hampshire, ) New York, Rhode Island, Vermont, and the ) No. ________ Commonwealth of Massachusetts ) ) CLEAN WATER ACT § 319(g) PETITION The States of Connecticut, Maine, New Hampshire, New York, Rhode Island, Vermont and the Commonwealth of Massachusetts (Petitioning States), pursuant to 33 U.S.C. § 1329(g), hereby petition the Administrator to convene an Interstate Management Conference (Conference) of all states contributing significant nonpoint source mercury pollution to the Petitioning States’ waters. “The purpose of such Conference shall be to develop an agreement among such States to reduce the level of pollution…resulting from nonpoint sources and to improve the water quality…” It is the Petitioning States’ goal for the conference to meet designated uses and water quality standards for mercury within their region through the implementation of plant-specific Maximum Achievable Control Technology (MACT) limits for mercury by EPA under Section 112(d) of the Clean Air Act. MACT is expected to control power plant emissions by 90 percent using cost-effective and available technologies. 1. The Petitioning States’ waters, fish and other fauna are highly contaminated with mercury. Mercury, particularly methylmercury – the form of mercury found in fish – is an extremely potent neurotoxin. Infants, children, pregnant women, and women of child-bearing age are most at risk from this widespread poison. 2. Each of the Petitioning States has Clean Water Act (CWA) designated uses of fishing and fish consumption for most of their waters. Mercury pollution prevents compliance with these designated uses and with water quality criteria implementing these uses. Consequently, each of the Petitioning States has issued advisories limiting the types and amounts of fish that can be eaten, which constitutes an impairment of waters under Sec. 303(d) of the CWA. 3. Each of the Petitioning States has water quality criteria for mercury in water and/or in fish that, in part, implement water quality standards consistent with Sec. 303(a) of the CWA. Further, states are required under Sec. 303(d) of the CWA to develop Total Maximum Daily Load (TMDL) analyses for all impaired waters. Hence, in fulfilling these legal requirements of the CWA, each Petitioning State is subject to the Northeast Regional Mercury TMDL (TMDL) for mercury impairments in inland waters, which was approved by EPA on December 20, 2007. 4. The TMDL identified mercury from atmospheric deposition as the primary cause of the impairment. Compliance with the TMDL requires a 74 to 91 percent reduction in fish tissue mercury concentrations. For the Petitioning States to meet the reduction targets of the regional mercury TMDL, atmospheric deposition of mercury in the Petitioning States will have to be reduced by at least 98 percent relative to 1998 levels. An interim goal of reducing the deposition of mercury by at least 75 percent by 2010 has been established. The TMDL goals will 2 be reevaluated at that time to assure its full implementation and compliance. A copy of the TMDL and EPA’s approval document are attached as Exhibits A and B. 5. According to a March 2008 Northeast States for Coordinated Air Use Management (NESCAUM) study, based on data from 2002, U.S. sources contribute approximately 30 percent of the atmospheric mercury deposition in the Northeast region. In-region sources contribute approximately one-half of the atmospheric mercury deposition from U.S. sources within the Petitioning States, although individual state contributions vary. Approximately 48 percent of the Petitioning States’ atmospheric mercury deposition from U.S. sources originates from states outside of the region. The out-of-region states with the most significant contributions (and each state’s portion of the deposition attributable to U.S. sources in 2002)∗ are: Commonwealth of Pennsylvania (21.7%) State of New Jersey (5.6%) State of Ohio (5.5%) State of West Virginia (3.9%) State of Maryland (3.7%) State of Michigan (2.0%) Commonwealth of Virginia (1.5%) State of Indiana (1.3%) State of Kentucky (1.2%) ∗ Percentages listed in this paragraph and in paragraphs 21, 26, 31, 36, 41, 46, and 51, are based on 2002 data and refer to the portion of atmospheric mercury deposition from U.S. sources that each state contributes to deposition in the region or a particular state. 3 State of North Carolina (1.1%) State of Illinois (0.9%) Other studies are consistent with the findings of this report in terms of the amount and relative importance of atmospheric mercury deposition to the Petitioning-State region from out-of-region sources in the U.S. A copy of the March 2008 NESCAUM Report is attached as Exhibit C. 6. Each Petitioning State has and is implementing stringent programs to control and eliminate in-state sources of mercury pollution to meet TMDL requirements. But because out-of-region mercury significantly contributes to mercury pollution in the Petitioning States, the Petitioning States’ programs alone cannot bring the Petitioning States into compliance with water quality standards and the regional TMDL. The Conference of the New England Governors and Eastern Canadian Premiers (NEG-ECP) is an organization of the governors of the six New England states and the premiers of the five Eastern Canadian provinces. The governors and premiers collaborate on regional issues and take action on policy areas including the environment, energy, economic development, trade, security, and ocean issues. In 1998, a regional Mercury Action Plan (MAP) developed by representatives of the states and provinces was approved by the NEG-ECP. The MAP identifies steps to address those aspects of the mercury problem in the region that are within the region’s control or influence and sets an overall regional goal to virtually eliminate the discharge of anthropogenic mercury into the environment to ensure that serious or irreversible damage attributable to these sources is not 4 inflicted upon human health and the environment. The MAP set forth goals of 50 percent reduction of regional mercury emissions by 2003, and 75 percent reduction by 2010. In 2003, it was reported that the goal of 50 percent had been exceeded with reductions achieved amounting to approximately 55 percent. When considering only the New England states plus New York State, the emissions reduction in the same time period was approximately 70 percent. This overall reduction was primarily due to an 87 percent reduction in emissions from municipal waste combustors (MWCs), a 97 percent reduction in emissions from medical waste incinerators (MWIs), and a 100 percent reduction in emissions from chlor-alkali facilities. 7. Out-of-region U.S. sources of atmospheric mercury contribute significantly to, and share responsibility for, the toxic mercury in the Petitioning States’ fish and wildlife, and the potential effects on the humans who consume them. The significant mercury pollution from out-of-region sources contributes to both violations of State water quality standards and EPA’s methylmercury fish tissue criterion, and must be significantly reduced to meet the regional TMDL. 8. EPA classifies atmospheric deposition as nonpoint source water pollution. See http://www.epa.gov/OWOW/NPS/qa.html (atmospheric deposition is nonpoint source pollution). 9. The sources of atmospheric mercury deposition fall within § 319, 33 U.S.C. § 1329. 5 10. Therefore, the Petitioning States are not meeting CWA requirements regarding mercury as a result, in whole or in part, of nonpoint sources from other States. 11. Further, the CWA’s fundamental goal of “fishable” waters, and the Petitioning States’ designated uses of fishing and fish consumption are not being met, at least in part, because of significant nonpoint mercury pollution from other States originating from atmospheric emissions transported to and deposited within the Petitioning States. 12. Section 319(g)(1) provides that: (1) if any portion of navigable waters, in a State which is implementing an approved 319 plan (2) “is not meeting applicable water quality standards or the goals and requirements of this chapter” (3) “as a result, in whole or in part, of pollution from nonpoint sources in another State,” (4) “such [receiving] State may petition the Administrator to convene, and the Administrator shall convene, a management conference of all States which contribute significant pollution resulting from nonpoint sources to such portion.” The Conference’s purpose “shall” be to forge an agreement to reduce the sources of nonpoint source pollution from the source state(s). 13. The Administrator’s duty is not discretionary, but mandatory. Section 319(g) repeatedly uses the word “shall.” The Administrator must convene a Conference, and the Conference’s purpose is clearly established. 14. Each Petitioning State has an approved § 319 plan covering portions of its navigable waters, including portions impaired by mercury pollution. 6 15. The Northeast Regional Mercury TMDL relied on a regional fish tissue mercury database compiled from agencies and organizations in the participating states. The dataset contains mercury measurements for 64 freshwater fish species with yellow perch and brook trout being the most prevalent species. For the purpose of the TMDL, length-standardized mercury concentrations were calculated for four species: smallmouth bass, largemouth bass, walleye, and yellow perch. The standard length and mean and 90th percentile mercury concentrations for standard length fish are shown in the table below. For all fish species, mean and 90th percentile concentrations exceed EPA’s recommended methylmercury fish tissue criterion of 0.3 mg/kg. Standard Lengths and Mercury Concentrations of Selected Freshwater Fish Species in the Northeast Species Standard Mean Hg 90th percentile Hg Length Concentration Concentration (cm) (mg/kg) at (mg/kg) at Standard Standard Length Length* Smallmouth bass 32 0.69 1.14 (Micropterus dolomieu) Largemouth bass 36 0.61 1.05 (Micropterus salmoides) Yellow perch 20 0.38 0.69 (Perca flavenscens) Walleye (Sander 45 0.60 0.93 vitreus) 16.