U.S. SENATOR PATRICK LEAHY

Senators Call On EPA To Strengthen Mercury Rule;
New GAO Report And Recent IG Report Call Rule Tainted

WASHINGTON (Monday, March 7) – U.S. Sens. Patrick Leahy (D-Vt.), Jim Jeffords (I-Vt.) and Olympia Snowe (R-Maine) Monday led a tri-partisan coalition of 29 senators in calling on the Environmental Protection Agency to strengthen a proposed mercury rule that a newly released General Accountability Office (GAO) report and last month’s EPA Inspector General (IG) report say was improperly drafted. 

In a letter submitted to Acting EPA Administrator Stephen Johnson, the senators ask EPA to strengthen its proposed Utility Maximum Achievable Control (MACT) rule governing the amount of mercury released through power plant emissions.  Last year Leahy, Jeffords and Snowe led an effort to have the rulemaking process investigated after it became clear that the proposed rule continued to pose a threat to the health of women and children exposed to mercury.   After record-setting public concern was voiced over the rule and after numerous congressional inquiries, the EPA delayed finalizing the rule until March 15, 2005. 

Both the GAO report and the IG report severely criticize EPA’s rulemaking process, concluding that it violated EPA policy, OMB guidance and Presidential Executive Orders.  Both reports emphasize serious flaws in how EPA analyzed the impacts of mercury on children’s health and the benefits of the different ways to control mercury emissions, limiting EPA’s ability to select the best approach.

Last year Snowe, Jeffords and Leahy were joined by Sens. Joseph Lieberman (D-Conn.), Thomas Carper (D-Del.), Barbara Boxer (D-Calif.), Hillary Rodham Clinton (D-N.Y.), Frank Lautenberg (D-N.J.) and Mark Dayton (D-Minn.) in requesting the GAO report. 

“These two reports show that the Administration ignored sound science and cut corners to justify the weaker mercury proposal that industry wanted,” said Leahy.  “They need to step up now and put forward a final rule that protects women and children from this toxic pollutant.”

“This report and our letter demonstrate the very real and continuing concern that the Bush Administration's mercury proposal was written for and by the big energy companies,” said Jeffords.  “Mercury poisoning is real and it is happening now.  A recently published study by the Mount Sinai Center for Children's Health and the Environment shows lower IQ levels linked to prenatal mercury exposure costs the United States $8.7 billion a year. Of this total, about $1.3 billion each year is attributable to mercury emissions from American power plants.  Everything we've seen and heard from this Administration amounts to delaying enforcement of the Clean Air Act and ignoring the resulting public health damage.  I hope they surprise us this week or next and write a strong, enforceable rule that gets mercury reductions from every power plant as rapidly as humanly possible." 

“The GAO’s findings underscore both the inadequacy of existing regulations and the urgent need to reduce mercury emissions from power plants nationwide,” said Snowe. “The current EPA proposals are not going far enough to address this pressing public health issue, putting millions of Americans – especially women and children – at risk of serious harm.  I urge EPA to change course and make a commitment to protect the public and our environment.” 

In the letter, the 29 senators urge EPA to act on the GAO and IG recommendations to strengthen the mercury control proposals, fully assess the potential for hot spots of mercury contamination and conduct new analysis to determine the option that is most protective of children.

One in six women of child bearing age in the United States carries enough accumulated mercury in her body to pose risks of adverse health effects to her children should she become pregnant.  Forty-five states have fish advisories for mercury warning pregnant women and children to limit their consumption of many fish caught in freshwater. 

The 29 senators urging Johnson to fix the rule are: Leahy, Jeffords, Snowe, Lieberman, Collins, Feingold, Dayton, Lautenberg, Boxer, Feinstein, Sarbanes, Clinton, Kerry, Kennedy, Akaka, Inouye, Dodd, Harkin, Biden, Corzine, Schumer, Reed, Cantwell, Wyden, Murray, Durbin, Levin, Reid, and Mikulski.

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A copy of the GAO report is available in PDF format here.  

Text of Monday's letter follows:

March 07, 2005

The Honorable Stephen Johnson

Acting Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

Dear Administrator Johnson:

We are writing to urge you to take immediate action to address serious problems in EPA’s proposed rule on mercury emissions from power plants, so that a better and legally defensible rule to expeditiously reduce those emissions can be promulgated by the settlement agreement deadline of March 15, 2005.  We are also gravely concerned that the rulemaking process has not been open and transparent to the public and may not have adhered to proper and statutory guidance.  

A similar letter was sent to former Administrator Michael Leavitt on April 1, 2004, expressing our belief that EPA’s mercury proposals fell far short of what the law requires and that the proposed approach fails to protect the health of our children and our environment.  The issues raised in the 2004 letter are bolstered by a recent report from the EPA Inspector General (IG) and a draft report from the Government Accountability Office (GAO).  The IG and GAO reports severely criticize EPA’s rulemaking process saying it violated EPA policy, OMB guidance, Presidential Executive Orders and, in some instances, important provisions of the Clean Air Act.

Both reports highlight serious deficiencies in EPA’s analysis for children’s health impacts and the lack of transparency in the regulatory process.  Due to the known serious and persistent effects of mercury on people and the environment, EPA’s final rule on mercury air emissions must be protective of children’s health.  The Agency’s failure to comply with Executive Order 13045 on Children’s Health nor to even estimate the value of the health benefits directly related to decreased mercury emissions concerns all of us.  Today, 45 states have fish warnings for mercury, and EPA and the Food and Drug Administration warn women of childbearing age, nursing mothers and young children from eating more than six ounces a week of fish caught in local waterways.

Recent studies indicate that at least one-in-six women of child bearing age in the United States carry enough accumulated mercury in her body to pose risks of adverse health effects to her children should she become pregnant.  The National Academy of Sciences has confirmed scientific research demonstrating that maternal consumption of unsafe levels of mercury in fish can cause serious neurodevelopmental harm resulting in children that suffer from learning disabilities, poor motor function, mental retardation, seizure disorders and cerebral palsy. 

The lack of analysis of the health impacts of mercury on children by EPA in this rulemaking process is alarming and should be corrected before EPA issues a final rule on mercury air emissions. 

Unfortunately, the IG and GAO found other serious concerns with EPA’s rulemaking process on mercury.  The IG found that:

EPA senior management instructed EPA staff to develop a maximum achievable control technology (MACT) standard for mercury that would result in national emissions of 34 tons annually, instead of basing the standard on an unbiased calculation of what the top performing units were achieving in practice. (EPA IG report, “Additional Analysis of Mercury Emissions Needed Before EPA Finalizes Rules for Coal-Fired Electric Utilities,” Feb. 3, 2005, p. 11)

By instructing EPA staff to ignore the top performers and to base the standard on an arbitrary 34-ton annual emissions limit, these EPA senior managers failed to carry out the MACT requirement under the Clean Air Act, directing staff to be arbitrary and capricious in arriving at a standard.  These actions violate sections 112(d) and 307(b) of the Clean Air Act.

Both the IG and GAO criticized EPA for failure to follow Executive Order 12866 on Regulatory Review, which requires agencies to analyze and present cost and benefit estimates for all regulatory alternatives.  GAO writes:

EPA’s initial economic analysis of the two policies that it is considering has a number of shortcomings.  Specifically, because EPA did not analyze and document the economic effects of each policy option by itself …the results cannot be meaningfully compared. Further, without monetary estimates of the human health benefits of mercury emissions reductions – a primary purpose of a mercury regulation—over the full implementation period of each option, or at a minimum, qualitative comparison of these benefits, EPA’s analysis does not provide decision makers with a strong basis for comparing the net benefits…Unless EPA conducts and documents further economic analysis, decision makers and the public may lack assurance that the agency has evaluated the economic tradeoffs of each option and taken the appropriate steps to identify which mercury control option would provide the largest net benefit.” (GAO Report “Clean Air Act Observations on EPA’s Cost-Benefit Analysis of Its Mercury Control Options,’ p. 16).

We request that EPA take action on the recommendations in both the IG and GAO reports.  These recommendations request that EPA:

·        Re-analyze mercury emissions data for an updated MACT;

·        Consistently analyze options and provide estimates of costs and benefits for each proposal in a comparative manner;

·        Strengthen mercury control proposals;

·        Fully assess the potential for hot spots of mercury contamination;

·        Conduct integrated analysis to determine the option that is most protective of children and subsistence fishermen and their families, including Asian Americans and Native Americans; and

·        Provide full disclosure and transparency throughout the process as required by EPA policy, OMB guidance and the Clean Air Act.

We have a responsibility to do all that we can to protect Americans from domestic sources of mercury pollution and we must be world leaders in controlling this persistent toxic global pollutant.  The technology to dramatically clean up these power plants is available and affordable.  EPA has already delayed a rule to regulate mercury under the Clean Air Act by at least six years.  There should be no further delays.  

Accordingly, we urge you to include in the final rulemaking the analysis that the law and the Executive Orders require and to issue a mercury rule that gets real and timely reductions on schedule for the health of the children of our nation. 

Sincerely, 


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