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Mercury Liability and How to Avoid It

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Title: Mercury Liability and How to Avoid It Author: Mrg Simon Last modified by: Staff Member Created Date: 9/29/2004 8:19:55 PM Document presentation format – PowerPoint PPT presentation

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Title: Mercury Liability and How to Avoid It


1
2004 Legal Seminar
2
Mercury Liability and How to Avoid It The
Science, The Spin, and The Suits
2004 APPA Legal Seminar November 9, 2004
  • Mrg Simon
  • Attorney at Law
  • Manager, State Governmental Relations
  • Missouri River Energy Services
  • Sioux Falls, SD

3
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

4
Mercury The Science
  • Naturally occurring element in the Earths crust,
    Hg
  • Found in some form virtually everywhere in the
    environment
  • Distributed through volcanic activity, fires,
    movement of waters, and biological processes

5
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

6
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

7
Bioaccumulation cycle of mercury
8
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

9
Global Sources of Hg
  • 5,000-5,500 tons per year
  • All sources
  • Breakdown
  • 1,000 tons per year
  • Natural emissions
  • 2,000 tons per year
  • Natural re-emissions
  • 2,000-2,500 tons per year Anthropogenic
  • 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).

10
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
  • Mercurys Toxic Emissions and How to
  • Reduce Them, rff.org.
  • U.S. utilities portion 1 of total global
    emissions (50 - 55 tpy)
  • Source Id.

11
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

12
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

13
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

14
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

15
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/a
    dvice.html

16
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

17
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

18
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

19
The Spin Questionable Science
  • The EPAs 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.

20
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.

21
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
    microgram0.000001 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)

22
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

23
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

24
The Spin Possible Health Effects
  • Specific Disorders
  • Learning and attention disabilities
  • Mental retardation
  • Autism
  • Pervasive developmental disorders
  • Parkinsons disease
  • Alzheimers disease
  • Coronary disease

25
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

26
Environmental Cleanup
  • Maine Peoples 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

27
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.

28
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.

29
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 nations 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.

30
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.

31
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.

32
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.

33
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

34
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

35
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)

36
Questions?
  • Mrg Simon
  • Attorney at Law
  • Manager, State Governmental Relations
  • Missouri River Energy Services
  • Sioux Falls, SD
  • 605.338.4042
  • mrgsimon_at_mrenergy.com
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