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The Nation

Mercury Emissions Rule Geared to Benefit Industry, Staffers Say

Buffeted by complaints, EPA Administrator Michael Leavitt calls for additional analysis.

March 16, 2004|Tom Hamburger and Alan C. Miller | Times Staff Writers

In 2000, a National Research Council study commissioned by Congress estimated that each year about 60,000 children born in the United States could have neurological problems because they were exposed to mercury before birth. Exposure could lead to developmental problems.

In the past few months, there has been a flurry of other disturbing reports, most focusing on the threat to the fetus from mothers eating fish with elevated levels of mercury. In December, the Food and Drug Administration warned all women of child-bearing age to limit their intake of tuna and other fish because of concern about mercury.

Coal and utility executives don't dispute the dangers of mercury, but they question how much of the threat comes from power plants. And they warn that overly aggressive regulation of the nation's coal-fired plants could damage those industries and the economy and endanger already stretched supplies of electricity.

In its final days, the Clinton administration determined mercury to be a toxic substance and thus subject to strict regulation under the Clean Air Act. The administration's decision required that the EPA propose standards for utility plant emissions by the end of 2003.

As part of this process, the EPA selected a 21-member federal advisory panel in 2001 to make recommendations to the agency.

Mercury was on the agenda at a staff meeting last spring at EPA headquarters presided over by Jeffrey R. Holmstead, a lawyer who represented industry interests on air pollution issues before Bush appointed him to run the EPA's Office of Air and Radiation. Several of the staff members said they had expected to discuss plans to carry out comparative studies of proposals to reduce mercury emissions. The studies had been requested by the federal advisory panel.

The studies were designed to examine the effects of mercury regulation on energy markets, electricity prices and public health. This analysis, generated through EPA computer models, typically becomes the basis upon which agency officials -- and outsiders -- weigh alternatives.

But William Wehrum, a senior advisor to Holmstead who also represented industry clients before joining the Bush administration, told the dozen or so staffers that comparative studies would be postponed indefinitely.

"I was floored," said one participant, who has served several administrations. "We pointed out that the studies were required ... that the data runs were promised to a federal advisory committee."

Holmstead did not respond to expressions of concern, participants said. "There was an awkward silence," one recalled.

After the meeting, two staffers said, Holmstead informed them that the studies would not be conducted partly because of "White House concern."

Holmstead and Wehrum declined repeated requests for comment. On Monday, Leavitt expressed full confidence in them.

Paul, the co-chairman of the advisory committee, which was made up of regulators, environmentalists and industry representatives, says his panel was promised the comparative data last March, but its next meeting was canceled by the EPA and the group never met again.

"We were cut off without any warning or explanation," said Paul, director of the Ohio Regional Air Pollution Control Agency in Dayton, who says he voted for Bush in 2000.

Lisa Heinzerling, a professor at Georgetown University Law Center who specializes in regulatory law and has studied the mercury proposal, said the "EPA's analytical work on mercury was extraordinarily thin."

Even as career staffers and some members of the EPA's advisory panel felt that their contributions to the mercury proposal were being restricted, utility industry lobbyists were given extraordinarily direct input.

When the Bush administration took office in 2001, slowing mercury regulation was a priority for the coal and power industries. Documents obtained under the Freedom of Information Act show that the coal industry dispatched lobbyists to meet with staff of Vice President Dick Cheney's Energy Task Force on mercury and other pollution issues.

Since 1999, coal and electricity companies and executives have donated $40 million to Republican candidates and committees, including $1.3 million directly to Bush campaigns, according to figures compiled by the Center for Responsive Politics.

The administration has responded to key industry priorities: It ended U.S. participation in the Kyoto process to reduce global warming and relaxed regulations that required the power industry to install pollution controls when renovating its plants.

The administration's proposed mercury rule, published in the Federal Register in December, contains numerous paragraphs of verbatim language supplied by two separate industry advocates.

Several complete paragraphs were lifted from three memos provided by Latham & Watkins, a national law firm whose clients include large coal-fired utility plants.

Both Holmstead and Wehrum are former Latham & Watkins attorneys.

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