A Plea to Scrap Mercury Emission Plan

A bipartisan group of senators, a former head of the Environmental Protection Agency and health, labor and religious groups urged the Bush administration Tuesday to withdraw its controversial proposal to curb mercury emissions from power plants.

They said that the plan was too weak to protect public health and that the internal process that produced it was so slanted toward industry that the final rule would not survive legal challenge.

In a letter to EPA Administrator Michael O. Leavitt, Sen. James M. Jeffords (I-Vt.), the ranking minority member of the Environment and Public Works Committee, said the EPA had violated requirements calling for agencies to review alternatives and disclose their analysis when proposing a major regulation.

Jeffords also referred to the proposal’s “gross inadequacies in controlling mercury.” He called on Leavitt to request an investigation by the agency’s inspector general “into the allegations of undue industry influence in the rule-making process.” He said it appeared that EPA political appointees and White House officials had worked “to skirt, if not directly violate, the law and rules of ethical behavior.”

But an agency spokeswoman said Tuesday that work on the mercury rule was ongoing and that no judgment “should be made until the rule is finalized in December.”

EPA officials said, at this point, they stand by their “cap-and-trade” approach to regulating mercury, which creates market-oriented incentives for coal-fired utilities to either clean their emissions or buy “credits” from those that do.

“Our goal and our commitment remains the same: to reduce mercury emissions by 70%,” said Cynthia Bergman, the spokeswoman.

Leavitt said this week that he was directing his staff to undertake additional studies and analysis of the mercury proposal, which was announced in December, shortly after he took office. He said he considered this part of the “normal process,” which he suggested could result in changes to the proposal.

He emphasized that the administration was the first to propose regulations that would limit mercury emissions from power plants.

President Clinton’s EPA administrator, Carol Browner, said the Bush proposal “is fundamentally flawed. It can’t withstand a legal test, and it must be withdrawn.”

Speaking at a news conference hosted by Physicians for Social Responsibility, she said Bush administration officials “decided where they wanted to go before they completed the analysis and then they cooked the analysis to get to where the industry was willing to be. That is not the way a regulatory process should operate.”

Jeffords and Browner said they were largely responding to a Los Angeles Times report Tuesday that disclosed that EPA political appointees had bypassed agency professional staff and a federal advisory committee last year to develop a mercury emissions rule preferred by the White House and industry.

The Times also reported that EPA staffers said they were told not to undertake routine economic and technical studies called for under an executive order and requested by the advisory panel. Significant language from utility lobbyists was included verbatim in the proposal.

Also Tuesday, Sens. Patrick J. Leahy (D-Vt.) and Olympia J. Snowe (R-Maine) reiterated an earlier plea to scrap the EPA’s proposed rule. They have collected nearly three dozen signatures on a letter urging Leavitt to submit a new proposal.

Critics say the EPA should regulate mercury under the provisions of the Clean Air Act, which call for much steeper and earlier emissions reductions than the agency has proposed.

Christie Whitman, who headed the agency last spring -- when EPA staffers say they were told to forgo the normal analysis of the mercury proposal -- said Tuesday that she supported Leavitt’s decision to order new studies. He has the option of publishing the findings before the deadline for public comment and well before the final rule is enacted, she said.

Still, Whitman said, “ideally you have the underlying analysis when you go out with a rule.” She reiterated that she never requested that her staff not produce its normal analysis or skew the data and, had she known that was happening, “I would have stepped in.”

Further support for Leavitt’s approach came from a powerful Senate ally.

Sen. James M. Inhofe (R-Okla.), chairman of the Environment and Public Works Committee, believes that “this controversy is testament to the length environmentalists will go to politicize the normal workings of government,” said a spokesman for Inhofe. He also said the plan had undergone extensive review, “so it is a stretch to say it has not been analyzed.”

A recent study found that about 60,000 children a year could suffer learning disabilities from being exposed to mercury while in the womb. That can happen when pregnant women eat fish from waters contaminated by the mercury emitted from power plants.

But coal and utility executives warn that overly aggressive regulation of the nation’s 1,100 coal-fired plants could seriously damage those industries as well as the nation’s economy.

A spokesman for coal-fired utility companies said Tuesday that withdrawing the current mercury proposal would create unnecessary delay and undercut the spirit of the proposal’s public-comment period that allows for more research and study.

Scott Segal of the Electric Reliability Coordinating Council suggested that Browner’s criticism of the administration was unwarranted, particularly because her record on regulating mercury from power plants was marked by delay.