Critics Swift to Jump on Rule to Reduce Mercury Emissions

The Bush administration plans today to unveil its long-awaited rule cutting mercury emissions from power plants, the first such step by the federal government.

But the regulation already has drawn angry criticism from environmentalists, public health advocates and lawmakers who said it failed to protect the public -- especially young children.

Mercury that falls into lakes, rivers and oceans accumulates in fish tissue, and fish consumption has been linked to neurological and developmental damage. An EPA analysis has found that about 600,000 babies born in the U.S. each year may be exposed to dangerous levels of mercury in the womb, primarily from mothers who have eaten fish.

The Environmental Protection Agency says its target will be to cut emissions of the neurotoxin to 38 tons annually by 2010, a 21% reduction from 1999 levels, and to 15 tons by 2018, nearly a 70% reduction. EPA officials say they eventually will achieve these figures through a flexible, market-based plan that is the most effective and economical way to protect public health.

But critics, including state and local air-pollution regulators, have said far steeper reductions are possible and criticized the EPA for delaying reductions for decades at the behest of a politically powerful industry. They vowed to challenge the new rule in court.

“This is, without a doubt, the most dangerous, dishonest and illegal air pollution rule I have ever seen come out of the agency,” said John Walke, a Natural Resources Defense Council attorney who previously worked for the EPA.

Current and former EPA employees said the new rule also failed to live up to administration promises to consider alternatives that would result in more rapid reduction of mercury emissions, a charge denied by administration officials.

EPA officials were hammering out final details of the rule Monday. But they disclosed a broad outline that was not expected to change. An environmental group provided a draft of the rule.

The rule would set a national, annual cap on emissions from power plants and allow individual companies to choose whether to reduce their own emissions or buy “credits” from other companies that do so. The EPA says this is designed to provide an incentive to cut emissions nationwide without mandating costly reductions from individual facilities.

Mercury occurs naturally in the environment and is a byproduct of burning coal. But the element, once common in school laboratories and manufacturing, is increasingly regulated because of its effect on the human nervous system. Its ubiquitous presence has prompted fish consumption warnings from federal agencies and 45 states.

The largest domestic source of mercury is the coal-fired-power industry, whose 1,300 plants emit 48 tons annually. But EPA spokeswoman Cynthia Bergman said any national regulation would have limited effect because much of the airborne mercury deposited in the U.S. came from abroad and most of the fish consumed domestically was caught in international waters.

“What’s critical to us is that until global mercury emissions can be reduced, it is important that pregnant women and women of childbearing age adhere to the guidelines” about restricting fish consumption, she said.

She said the market-based approach provided the biggest polluters an incentive to reduce emissions quickly. She said they would have a strong interest in earning pollution control credits that would become more valuable later when the national emissions cap was more stringent. She acknowledged, however, that the use of credits would delay until after 2018 the date by which the full compliance goal would be met.

The mercury rule is among the most controversial of the Bush administration’s efforts to regulate air pollution. The president’s overall market-based legislative package, known as “Clear Skies,” stalled during his first term and last week failed to make it out of a Senate committee.

In contrast, the EPA last week issued a widely praised market-based rule to cap emissions of nitrogen oxides and sulfur dioxide from power plants in 28 Eastern and Midwestern states.

The EPA’s approach to mercury, however, has been intensely debated since the agency issued a draft rule in December 2003. Even some supporters of the market-based approach for ozone- and soot-producing emissions object to that strategy to regulate mercury.

Although the cap-and-trade approach is effective for nitrogen oxides and sulfur dioxide, it is wrong for mercury, which is toxic, said Fred Krupp, president of Environmental Defense, who shared the stage with administration officials at the EPA last week when that rule was announced.

Many scientists say that mercury, which is heavier than nitrogen oxides and sulfur dioxide, will remain close to the point of emission, creating dangerous “hot spots,” or high levels of mercury near power plants.

“This is going to be a bad rule, one that allows mercury levels to rise, particularly in the West,” Krupp said.

Because coal-fired plants would probably be built in the power-hungry West, Krupp said, the EPA rule could result in more mercury deposits there.

The EPA’s own Children’s Health Protection Advisory Committee wrote last year that the proposed EPA rule “does not sufficiently protect our nation’s children.”

On Monday, a member of that panel, Susan West Marmagas of Physicians for Social Responsibility, said: “This rule flies in the face of the best science, the best experts and the public.” She said the committee repeatedly had asked the EPA to do additional analysis on the rule and to address “hot spots,” but the agency had failed to do either.

EPA officials said the rule would address “hot spots” but that the final wording had not been resolved Monday.

S. William Becker, executive director of two groups representing state and local air pollution regulators that have opposed the EPA’s approach, said many state and local agencies would reject the federal mercury rule and adopt their own controls.

In 2000, shortly before leaving office, the Clinton administration had concluded that mercury should be regulated as toxic under the Clean Air Act. This would have mandated curtailing emissions at every plant by the maximum amount possible, which proponents said could bring a 90% reduction in three years using existing technology.

With its mercury rule, the EPA is abandoning that approach in favor of the market-based plan.

Industry advocates defend the rule as the first such nationwide regulation and one that will significantly reduce mercury emissions in a relatively short period of time.

Requiring rapid reductions at every plant would trigger a switch from coal to expensive natural gas, which could harm the economy, said Scott Segal, director of a coal utility trade association in Washington.

“It takes real hubris to call this a rollback,” Segal said. “Environmentalists perpetually believe the [emissions] number ought to be lower. Industry has come to realize that we are at the limits of technological feasibility.”