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WASHINGTON –Senator Joe Lieberman, a senior member of the Senate Environment and Public Works Committee, today joined a bipartisan group of Senate colleagues in calling on the Bush Administration to crackdown on mercury emissions. In a letter to the Acting Administrator of the Environmental Protection Agency, Stephen Johnson, the Senators urged EPA to implement a more rigorous mercury rulemaking process and adopt a rule that adequately protects public health and the environment.
“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 letter said. “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.”
The full text of the letter is below.
March 7, 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 controls;
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.
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