For the third time, environmental advocates have discovered passages in the Bush administration's proposal for regulating mercury pollution from power plants that mirror almost word for word portions of memos written by a law firm representing coal-fired power plants.
The passages state that the Environmental Protection Agency is not required to regulate other hazardous toxins emitted by power plants, such as lead and arsenic. Several attorneys general, as well as some environmental groups, have argued that the Clean Air Act compels the EPA to regulate these emissions as well as mercury.
The revelations concerning language written by Latham & Watkins could broaden an ongoing probe by the EPA's inspector general into whether the industry had an undue influence on the agency's proposed mercury rule, legislative critics of the proposed rule said.
Sen. James M. Jeffords (I-Vt.), ranking member of the Senate Environment and Public Works Committee and one of the senators who called for the probe last spring, said the revelation that the EPA adopted the same wording as an industry source "no longer comes as much of a surprise."
"The Bush administration continues to let industry write the rules on pollution, and this is just one more example of how they abuse the public trust," he said.
EPA spokeswoman Cynthia Bergman would not comment on the connection between the law firm memo and the agency's proposal beyond saying that it is "a public document. It was publicly debated as part of the rulemaking process."
She added that pollutants such as lead and arsenic are not the central issue: "EPA continues to be most concerned with mercury. We will be regulating mercury emissions from power plants for the first time, and we will concentrate on the need to protect children and pregnant women."
Environmentalists have assailed the EPA for months arguing that the mercury rule, slated to be finalized next March, would not adequately curb a toxin that can enter the food chain through fish and cause developmental damage in infants and young children.
The rule, they said, does nothing to limit chromium, lead and arsenic pollution from utilities, all of which exceed mercury emissions and could pose a health threat.
"The big story here is the public health story; things like arsenic, lead and chromium are being released in very large quantities and pose a very serious health threat," said John Stanton, a senior lawyer for Clear the Air, an environmental coalition that spotted the similarities between the regulation's language and the industry memo.
The proposed regulation concludes that although the EPA determined in 2000 that arsenic, chromium and other metals are potential carcinogens, there is too much uncertainty to justify regulating them.
That conclusion is backed by two sections of the proposed rule that address whether the EPA is compelled to regulate non-mercury pollutants, an issue that first arose in 1990 when Congress rewrote sections of the Clean Air Act. At the time, Congress made an exemption for the utilities, saying the EPA should study whether it was both "appropriate and necessary" to regulate them. In 2000, in the waning months of the Clinton administration, the EPA concluded that utilities should be listed as a source of toxic emissions and regulated accordingly.
In light of the 2000 decision and past studies, EPA officials said they are obligated to regulate only mercury in coal-fired power plants and nickel in oil-fired plants. The nine attorneys general and two state environmental secretaries wrote the agency on June 28 saying the EPA is legally required to address other pollutants as well, citing a 2000 decision by the U.S. Court of Appeals for the D.C. Circuit.
The Aug. 5, 2002, memo from Latham & Watkins, submitted during the public comment period on the rule, said hazardous air pollutants other than mercury did not need to be regulated. It made multiple references to statements by Rep. Michael G. Oxley (R-Ohio) that "Congress provided a distinct regulatory mandate for utility [hazardous emissions] because of the logic of basing any decisions to regulate on the results of scientific study and because of the emission reductions that will be achieved and the extremely high costs that electric utilities will face under other provisions of the new Clean Air Act amendments."
The EPA used nearly identical language in its rule, changing just eight words. In a separate section, the agency used the same italics Latham lawyers used in their memo, saying the EPA is required to regulate only the pollutants under Section 112 of the Clean Air Act "after considering the results of the study required by this paragraph." The memo uses the word "subparagraph" instead of paragraph but is otherwise identical.
Latham lawyer Robert A. Wyman Jr., who authored the memo, declined to comment last week on grounds that the firm does not discuss client matters unless directed to do so.
The Washington Post and the Los Angeles Times reported earlier this year on instances in which industry-written language had surfaced in the mercury proposal. A spokesman for the inspector general's office said its investigation of the issue should be done by early next year.