2004 Legal Seminar

2004 APPA Legal Seminar

November 9, 2004

Mercury Liability and How to Avoid It

The Science, The Spin, and

The Suits

Mrg SimonAttorney at Law

Manager, State Governmental RelationsMissouri River Energy Services

Sioux Falls, SD

Understanding Mercury Issues

• The Science: mercury primer, federal regulation

• The Spin: mercury and politics, federal and state regulations, non-governmental organizations

• The Suits: variety of litigation, including claims against individual utilities

Mercury: The Science

• Naturally occurring element in the Earth’s crust, Hg

• Found in some form virtually everywhere in the environment

• Distributed through volcanic activity, fires, movement of waters, and biological processes

The Science

• Elemental mercury (Hg0) also known as quicksilver– Most volatile form because it

transforms into the vapor phase at room temperature

• Inorganic (Hg++)– Combines with chlorine and/or

other elements to form salts (used in antiseptic creams and antibacterial treatments)

– Processed by the body fairly quickly and is excreted in solid waste

The Science

• Organic mercury results from the combination with carbon– Creates methyl mercury or

related compounds

– Methyl mercury can build up in muscle and fat tissue over time, a process called bioaccumulation

– At critical levels, such build up can interfere with neurological development and function

Bioaccumulation cycle of mercury

The Science of Hg and Coal

• Organic mercury results from the combination with carbon (e.g. coal)

• Hg content and speciation of coal varies by coal rank (type)– Bituminous, Subbituminous,

Lignite

• Hg emissions are affected by combustion technology – Stoker-fired, cyclone-fired, FBC,

IGCC

Global Sources of Hg

• Source: EPA, Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of performance for New and Existing Stationary Sources: Electric Utility Steam Generating units; Proposed Rule, Vol. 69, No. 20, Federal Register, January 30, 2004, at 4658 (EPA Proposed Hg Rules, Jan. 2004).

• 5,000-5,500 tons per yearAll sources

Breakdown:• 1,000 tons per year

Natural emissions

• 2,000 tons per yearNatural re-emissions

• 2,000-2,500 tons per year Anthropogenic

U.S. Sources of Hg

• U.S. portion of global anthropogenic emissions: 3% of total global emissions (150-165 tpy)

• About 50% of Hg deposited in the U.S. comes from U.S. sources • Source: EPA Proposed Hg Rules, Jan. 2004, at 4658; John W. Anderson: Mercury’s Toxic Emissions and How to Reduce Them, rff.org.

• U.S. utilities portion: 1% of total global emissions (50 - 55 tpy)

• Source: Id.

Widespread Intentional Uses• Medical instruments: thermometers,

blood pressure machines

• Pharmaceuticals: preservative for vaccines, dental amalgam

• Electrical equipment: widely used for a variety of switches and wiring applications

• Industry: used in gold mining industry, chlorine manufacturing

• Household and commercial uses: barometers, fluorescent lamps, latex paint

• Batteries: account for 88% of the mercury content in municipal solid waste

The Science of Health Effects

• Early ill effects on humans: Mad Hatter

• Epidemic poisonings in Japan and Iraq

• Inhalation and oral exposure most toxic routes

• Hg acts as a neurotoxin, affecting pulmonary and central nervous systems

• Linked (at varying levels of certainty) to a wide variety of developmental and degenerative diseases

Mercury: The Spin

• Scientific community is divided on the basics beyond adverse effect

– Specific dose

– Frequency of exposure

– Confirmed health effects

• Stakeholders polarized

– Non-governmental organizations (NGOs)

– Industry

• Let the spin begin

Fish Consumption Advisories

• Fish consumption advisories – most states have issued warnings for at least one fish species

• Advisories cause heightened concern of conservation, environmental, and public health groups

See: http://epa.gov/waterscience/fish/states.htm

Tuna Consumption Warnings

• March 2004 EPA and FDA issued a joint notice that advised pregnant and nursing women, women who may become pregnant, and young children to limit their consumption of canned albacore tuna to six ounces per week (1 meal)See: http://www.epa.gov/waterscience/fishadvice/advice.html

Vaccine Warnings

• In September 1999, the American Academy of Pediatrics issued a policy on mercury in vaccines that directed physicians to warn parents of the risks associated with Thimerosal and to make available alternatives to Thimerosal where available

Legislative and Regulatory Efforts

• Federal legislation deadlock: Clear Skies, Carper, Jeffords

• Prominent EPA resignations over policy differences

• State regulations– California: Safe Drinking

Water and Toxic Enforcement Act of 1986 (Proposition 65)

– Minnesota: Mercury-Free MN

EPA Rules

• Precipitated by suit NRDC v. EPA• Power plants final unregulated

source of Hg• Proposed alternative rules in

January 2004– Maximum Achievable Control

Technology– Cap and Trade

• Over 750,000 comments so far• Rule to be finalized March 2005

The Spin: Questionable Science

• The EPA’s 1997 Mercury Study RTC [Report to Congress] supports a plausible link between anthropogenic releases of Hg from industrial and combustion sources in the U.S. and methyl mercury in fish.”

• Source: EPA Proposed Hg Rules, Jan. 2004, at 4658.

• “…also result from existing background concentrations of HG (which may consist of Hg from natural sources, as well as Hg which has been re-emitted from the oceans or soils) and deposition from the global reservoir (which includes Hg emitted by other countries).”

• Source: Id.

The Spin: Questionable Science

• “…it is not possible to quantify how much of the methyl mercury in fish consumed by the U.S. population is contributed by U.S. emissions relative to other sources of HG (such as natural sources and re-emissions from the global pool). As a result, the relationship between Hg emission reductions from Utility Units and methyl mercury concentrations in fish cannot be calculated in a quantitative manner with confidence.”

• Source: Id.

The Spin: The Reference Dose

• “Reference Dose” (RfD) of methyl mercury (aka acceptable level of ingestion) from sources such as seafood (0.1ug/kg/day where ug is a microgram=0.000001 of a gram) is intentionally low by an “uncertainty factor” of 10 (aka safety buffer of wide separation between real risk and perceived potential risk)

The Spin: The Reference Dose

• U.S. Centers for Disease Control:– 8% of women of

childbearing age have blood levels at or above RfD

– These women ate shrimp and tuna more often

Possible Health Effects• Wide variety of symptoms linked

to mercury exposure include:

– Impaired vision, speech, hearing and walking

– Sensory disturbances – Incoordination of movements– Nervous system damage, similar

to congenital cerebral palsy– Mental disturbances– Psychomotor retardation– Chronic inflammation of mouth

and gums– Personality change– Nervousness – Fever or rash

The Spin: Possible Health Effects

• Specific Disorders– Learning and attention

disabilities– Mental retardation– Autism– Pervasive

developmental disorders

– Parkinson’s disease– Alzheimer’s disease– Coronary disease

The Suits: The Parties

• State and federal governmental entities

• Non-governmental organizations

• Individuals/classes of individuals

• Industrial users and/or emitters

• Regulated industries• Trade associations• Vendors of control

technology, disposal

Environmental Cleanup

• Maine People’s Alliance and NRDC v. Mallinckrodt

• 1999 (approx.): MPA and NRDC brought suit to force the cleanup of mercury from the Penobscot River caused by the HoltraChem chlorine manufacturing plant from 1967-2000

Real Property Claims• A former mercury lighting manufacturing plant

turned condo in Hoboken, New Jersey.• Purchasers did their due diligence, with legal

and environmental reviews.• Two years after residents moved in, two-thirds

tested positive for high levels of mercury. • The owners sued the former building owner,

the lawyer who helped in the purchase of the building, and the environmental company hired to inspect the building.

• In October 1997, the U.S. EPA made a final decision to demolish the mercury-contaminated building, relocate the residents, and clean up the site, at a cost of $14 million.

• In April 1998, General Electric was ordered to pay roughly $4 million to help with the cleanup.

Dental Industry• 2002 Maryland class action against ADA

and MSDA. – Active misrepresentation and deception of

consumers about the high levels of mercury used in dental fillings, in violation of Maryland Consumer Protection Act.

– Also alleged defendants prevented legally mandated warning from getting to consumers, constituting fraudulent and deceptive business practices.

– Included claim that symptoms subsided after mercury fillings were removed.

• Most (34 of 36) dental amalgam suits dismissed according to ADA.

• Some states, including Maine, require dentists who use mercury amalgam to display a state Health Department poster and brochures, which include information on the health and environmental effects of mercury.  Sec. 1. 32 MRSA §1094-C.

Food Industry• State of California v. Albertsons (2003):

Attorney General Bill Lockyer sued major grocery store chains and restaurants for failing to post warnings about mercury in fresh or frozen shark, swordfish, and tuna, as required by Proposition 65. Pending in San Francisco Superior court.

• State of California v. Tri-Union Seafoods (2004): Attorney General sued the nation’s three largest canned tuna companies for failing to warn consumers, as required by Proposition 65, that albacore and light tuna contain mercury, known by the state to cause reproductive harm and cancer.

• A similar suit was filed by a private party, The Public Media Center, against tuna companies.

Vaccine Makers• Suits allege that the mercury-

based preservative Thimerosal, used in more than 30 childhood vaccines, has caused mercury poisoning in many children.

• The suit claims the “poisoning” has resulted in symptoms similar to those of autism and were first manifested after receiving vaccines containing Thimerosal.

• Similar suits have been filed in many states since FDA and AAP warnings were issued in 1999.

Coal-fired Power Plants: Environmental Suits

• Grand Canyon Trust and the Rio Grand Chapter of the Sierra Club v. Public Service Company of New Mexico.

• Alleges the discharge by San Juan Generating Station of 751 pounds of mercury per year has caused degraded visibility at Mesa Verde National Park, as well as mercury advisories in nearby San Juan River, McPhee Reservoir, and Navajo Reservoir, all in violation of the Clean Air Act.

• The Court found the groups had standing to maintain the action. Groups seek a permanent injunction and civil fines, and filed notice of intent to sue in 2004.

Coal-fired Power Plants: Recreational Impairment

• Ament v. American Electric Power, Marion County (TX) Dist. Court, May 29, 2003

• Owners of lakefront property, lakefront businesses, and fishing guides who claim to depend on the lake and its resources for their livelihoods.

• Claim two power plants and an ammunition plant have emitted mercury, causing damage to the soil, water, fish, flora, and fauna in and around Caddo Lake, the only naturally formed lake in Texas.

• Seek injunctive relief.

Coal-fired Power Plants: Personal Injury Claims

• 2003: JEA (and other area utilities) received a notice of intent to sue by the families of over 30 children with autism– No suit filed to date

Hg Control Technology Vendors

• New coal plants, retrofits seek vendor guarantees of performance for Hg monitoring and control devices

• Failure of systems to perform will prompt utility v. vendor claims

• Concern: Adequacy of available remedy– Damages range from

fines to plant shut down– Solvency of vendor

Defense Strategy

• Avoid liability (not suits)• Focus on the science

– Reference dose– Actual causal link subject

of debate in scientific community

• Proactive measures– Generation and control

technology– “Trading” efforts

(thermometer exchange)

Questions?

Mrg SimonAttorney at Law

Manager, State Governmental Relations

Missouri River Energy Services

Sioux Falls, SD

605.338.4042

mrgsimon@mrenergy.com