The Environmental Protection Agency will issue a rule today to reduce mercury emissions from power plants through a cap-and-trade system that allows some power plants to make deep pollution cuts while others make none.
The rule sets broad national limits on mercury emissions that enable power companies to decide which plants will receive pollution controls -- meaning that even as many states reduce their emissions, some could see increases in emissions of mercury, a potent neurotoxin.
The rule is certain to be contested in court by environmental groups, which charge that it places the financial interests of power companies over public health and violates existing law on how the government must deal with dangerous substances.
Mercury is the third major pollutant produced by coal-fired power plants and other industries that the government has sought to limit because of accumulating evidence of their devastating effects on health. The EPA issued a rule last week to control the smog and soot produced by sulfur dioxide and nitrogen oxides.
The agency plans to offer a full justification for its approach today but defended it in broad terms yesterday. Industry groups back the cap-and-trade approach as more practical and cost-effective than the alternative that environmentalists prefer -- limiting emissions at every plant.
The EPA's actions in developing the mercury rule prompted intense criticism by the agency's inspector general and the nonpartisan Government Accountability Office, which said the agency ignored scientific evidence. Agency staff have charged that the Bush administration's political operatives decided the framework of the new rule in advance and deliberately made it less ambitious in order not to be tougher than President Bush's proposed revisions of the Clean Air Act, the nation's fundamental air pollution law. Bush's proposal, which has been stalled in Congress, is also based on a cap-and-trade system. Agency officials and industry advocates have defended the rulemaking process as open, credible and efficient.
"It is unconscionable EPA is allowing power companies to trade in a powerful neurotoxin -- it is unprecedented and illegal," said S. William Becker, executive director of two bipartisan state environmental groups, the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials. He predicted that states and cities will be forced to institute a "patchwork quilt" of more stringent local emissions controls.
To justify the new approach, the administration needed to reverse a decision by the Clinton administration to list mercury as a "hazardous air pollutant." That allowed for greater flexibility in designing emission controls and made possible a trading system to mesh with the EPA rule issued last week to control emissions of sulfur dioxide and nitrogen oxides, said Scott Segal, a spokesman for the Electric Reliability Coordinating Council, which represents a number of coal-fired utilities.
"There is similarity in how these emissions are produced, and there should be similarities in how they are controlled," Segal said yesterday. The industry spokesman did not dispute that mercury is dangerous but said the trading system is the best way to achieve dramatic cuts at reasonable cost -- with minimal litigation delays.
"This rule is about public health, and this rule is protective given what we know about mercury and how and why we get exposed to it," EPA spokeswoman Cynthia Bergman said yesterday. She said she was constrained in speaking about the specifics of the rule because it was to be finalized only today.
The mercury rule is so closely linked to last week's Clean Air Interstate Rule that the initial phase of emissions cuts will be a byproduct of that rule. Bergman said those initial cuts target a particularly hazardous form of mercury, which justified removing it from the list of hazardous air pollutants. Today's rule will call for a cap of mercury emissions at 38 tons per year from power plants by 2010 -- down from 48 tons at present -- and an additional reduction of 15 tons per year by 2018.
Although the broad outlines of the mercury rule have been known for months, environmental groups have waited to see whether the agency would perform the additional analyses demanded by the EPA's inspector general and the GAO. While Bergman had previously said criticisms about the lack of analyses were premature, she confirmed yesterday that some of the analyses demanded had not been performed.
Bergman said that the competing approach -- to reduce mercury at every plant -- could indeed produce dramatic results, but she said it depends on the flawed assumption that the technology is available to make sharp cuts at every plant. She said such technology will not be ready for several years.
At a news briefing yesterday by several environmental groups, John Walke, clean air director for the Natural Resources Defense Council, contested Bergman's claim about the lack of available technology and said the real purpose of the rule is to invite litigation and "years and years and years of delay" in instituting mercury controls. "This is the most dishonest, dangerous and illegal rule I have ever seen come out of the EPA," he said.
Susan West Marmagas, environment and health program director at the group Physicians for Social Responsibility, said 630,000 babies each year in the United States are at risk of mercury toxicity and 1 in 12 American women who could become pregnant have heightened risk of mercury toxicity.
Bergman and Segal said that, contrary to the impression conveyed by environmentalists, global mercury emissions are responsible for the bulk of mercury toxicity in the United States -- meaning that pregnant women and children should limit their intake of certain types of fish, irrespective of what happens with mercury emission controls.
Felice Stadler, a policy specialist at the National Wildlife Foundation's Clean the Rain campaign, said that controlling fish consumption is indeed the right short-term approach but that strong mercury emissions controls could help protect millions of Americans who catch and eat fish every year.