The Honorable Christine Whitman
Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, DC 20460

Dear Administrator Whitman:

The Environmental Protection Agency faces many challenges on the road to a cleaner environment, not the least of which are lawsuits filed by industries affected by EPA regulations. We would like to congratulate you and your agency for successful Supreme Court defenses of agency authority under the Clean Air Act. Your legal victories have made clear the legitimacy of EPA's authority to set and implement strong and protective national clean air standards.

As clean air issues continue to dominate regulatory policy, we hope you will continue EPA's strong support of strong Clean Air Act provisions that protect air quality and public health. In particular, we urge your continued support of the established language of EPA's December 2000 positive determination to regulate mercury emissions from electric utilities under Section 112 of the Clean Air Act. Section 112 applies the strictest controls, i.e., the "maximum achievable control technology" (MACT) standard, to hazardous air pollutants (HAPs). The law specifically names mercury as a HAP.

The EPA is currently being sued by certain members of the electric utility industry who argue that the MACT standard is too strict for mercury emissions and that their industry should not be considered a source of HAPs. We hope you will fight this lawsuit and stand your ground on issuing a MACT standard. The EPA's own study of electric utilities in 1998 found that "mercury from coal-fired utilities is the HAP of greatest potential concern." Furthermore, Section 112 itself was written with the express intent of regulating hazardous emissions from "electric steam generating units." We urge you to maintain the EPA's strong legal defense of its regulatory determinations under Section 112 of the Clean Air Act.

In addition, we also urge you to strongly oppose any efforts to impose a "cap-and-trade" system on mercury emissions -- a regulatory policy that would not be legal under Section 112, nor consistent with EPA's mandate to protect public health. We know that the EPA's December 2000 determination acknowledged "interest" in mercury emissions trading. We also know that you have personally stated that mercury trading could be "considered." However, the toxicity of mercury has been proven time and again by scientists around the world. A definitive study by the National Academy of Sciences in July 2000 showed that more than 60,000 newborns could be at risk from mercury exposure, and a recent study by the Centers for Disease Control suggested that a far greater number could be at risk. In addition, 41 states have fish consumption advisories due to mercury contamination, and this threatens fishery resources, including the $4 billion Great Lakes fishery, which is the livelihood of many small communities.

We hope you will agree that emissions of mercury should be curtailed as soon as possible, not extended through a trading scheme. While trading may be appropriate for the management of non-toxic criteria pollutants, we maintain that it is not appropriate for electric utilities to buy the right to rain a hazardous air pollutant like mercury on their downwind neighbors.

Again, we congratulate you and your agency for your historic defense of the Clean Air Act and its amendments at the Supreme Court. We hope that your attention to the risks of mercury will ensure a future of cleaner air and protected public health for all Americans.

Sincerely,

PATRICK LEAHY
United States Senator

Cosigned by Senators Snowe, Collins, Kennedy, Dodd, Jeffords, Cantwell, Murray, Kerry, and Sarbanes