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The U.S. Environmental Protection Agency issued its final rule regulating mercury pollution from power plants in March, drawing criticism from many environmental advocates who say the rule is far too weak considering the risk mercury poses to human health.

The rule, officially titled the Clean Air Mercury Rule, is aimed at coal-fired power plants, the nation's largest remaining unregulated source of mercury emissions. According to EPA, the rule will decrease mercury in two phases, eventually capping national mercury emissions at 15 tons by 2018. Power plants currently emit about 48 tons of mercury annually. However, public health and environmental advocates argue that EPA's mercury rule violates the 1990 Clean Air Act, ignores the science on mercury hazards and allows industry to pollute beyond the 2018 deadline.

"EPA has missed a significant opportunity to protect children's health today and in the future," said Susan West Marmagas, MPH, director of the environment and health program at Physicians for Social Responsibility. "(EPA) made a decision to ignore the science that is clearly on the table."

Studies have shown mercury to be a highly toxic pollutant linked to cardiovascular disease and developmental problems in fetuses and children, putting them at risk of brain damage and learning disabilities. Mercury most often makes its way into the human body via contaminated fish, and in turn, more than 40 states have issued warnings telling residents -- especially women of childbearing age, pregnant women and children -- to limit or avoid eating certain fish. In fact, EPA and the U.S. Food and Drug Administration released a revised consumer warning on fish and mercury last year, stating that nearly all fish or shellfish contain traces of mercury.

"That is one of the most egregious parts of this rule: It attempts to take apart the scientific consensus on mercury as a pollutant," Marmagas said.

Shortly after EPA issued the mercury rule, nine states -- New Jersey, California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York and Vermont -- filed suit against the agency challenging the new rule. In addition, a handful of U.S. senators have written to then-acting EPA Administrator Stephen Johnson, MS, asking him to delay implementation of the mercury rule until additional research has been considered.

Before EPA issued its mercury rule in March, the agency had been on track to regulate power plant mercury emissions according to the most rigorous program for toxic pollution. In 2000, EPA scientists made a legal finding that mercury from power plants should be regulated under the Clean Air Act's "maximum achievable control technology" standard, which requires the best pollution control available, according to John Walke, JD, clean air director at Natural Resources Defense Council. At the time, EPA designated mercury from power plants a hazardous air pollutant and the agency was on course to require power plants to reduce mercury emissions by 90 percent by 2008.

Unfortunately, as a precursor to issuing its current mercury rule, EPA had to reverse those earlier measures. To do so, the agency also issued a "recession rule" in March, which retracts the government's obligation to regulate power plant mercury as rigorously as possible, giving power plants a much longer window to reduce mercury emissions, according to the Natural Resources Defense Council. Such actions by EPA have led to accusations that the agency, as well as President Bush, is manipulating science to achieve pre-determined policy goals.

"The Bush administration policies on mercury are all designed to favor power plants over the public," Walke told The Nation's Health.

Jason Burnett, policy advisor to the assistant administrator of EPA's Office of Air and Radiation, said EPA officials took a "careful look" at the basis of the 2000 mercury finding and because of new information, concluded it was not necessary to regulate power plant mercury under the maximum achievable control technology standard. The new mercury rule, combined with EPA's new Clean Air Interstate Rule -- which was also issued in March and aims to cap emissions of soot- and smog-forming pollutants sulfur dioxide and nitrogen oxides -- makes it unnecessary to regulate power plant mercury according to maximum achievable control technology standards, Burnett told The Nation's Health. An extra benefit of the interstate rule is that power plant control systems used to reduce sulfur dioxide and nitrogen oxides also help reduce mercury.

However, environment and public health advocates contend EPA's final mercury decision was made without taking into account all of the science. Among the findings that EPA is being faulted for not considering is a report on the "Economic Valuation of Human Health Benefits of Controlling Mercury Emissions from U.S. Coal-Fired Power Plants," which was conducted by researchers at the Harvard Center for Risk Analysis. EPA had said its new mercury rule was not more aggressive because the costs to industry already exceeded the public health benefit. However, the February Harvard report found that benefits to human health of regulating mercury from power plants far outweigh the cost to industry. Specifically, the report calculated health benefits that were 100 times as great as EPA's analysis and estimated billions of dollars in potential public health benefits, such as decreases in cardiovascular and neurological damage.

"I think it's reasonable to think the benefits of reducing power plant mercury emissions are larger than EPA quantified," James Hammitt, PhD, director of the Harvard Center for Risk Analysis, told The Nation's Health.

Compounding concerns that EPA was overlooking key mercury-related health studies was a February report from the U.S. Government Accountability Office that pointed to four shortcomings in EPA's analysis. Among the shortcomings GAO cited was that "EPA did not estimate the value of the health benefits directly related to decreased mercury emissions and instead estimated only some secondary benefits, such as decreased exposure to harmful fine particles."

EPA's Burnett said the agency looked at all of the prominent research on the health effects of mercury, including the same underlying science that went into the Harvard report.

Advocates are also concerned that EPA's method for reducing power plant mercury emissions -- a market-based "cap-and-trade" system -- is inappropriate and will do little in the near future. Under a cap-and-trade system, power plants that reduce their mercury emissions beyond the required limit are then left with extra "credits" that can be traded to another power plant that had not reduced emissions enough. In other words, a power plant could actually increase its mercury emissions as long as it had purchased enough credit to meet a given threshold, according to Walke.

"A cap is not what it sounds like -- it's just a number on a piece of paper," Walke said. "You can reach that 15-ton target either by reducing actual pollution or by spending pollution credit. A pollution credit equals the right to pollute."

Cap and trade is a good tool for the right pollutants, such as carbon dioxide, but because mercury has an acute toxic effect and creates local "hot spots," cap and trade isn't effective, said Michael Shore, MCE, senior air policy analyst for Environmental Defense. Cap and trade works well for certain pollutants that travel over wide distances -- so any national reduction in such emissions has a positive effect on the local level. However, local sources within a state account for half or more of mercury deposits at the nation's worst hot spots, Shore said, which is why every power plant should be required to make actual reductions instead of relying on credits.

"Cap and trade is an excellent policy for reducing certain kinds of air pollution," Shore told The Nation's Health. "However, mercury has a strong local impact...and it's not appropriate to trade in these toxins."

An example in which the cap-and-trade approach is appropriate, Shore noted, is EPA's new Clean Air Interstate Rule.

"The interstate rule is a significant step in the right direction," Shore said. "However, the mercury rule leaves a whole generation of children needlessly at risk of this toxic pollution."

According to Shore, who served on an EPA mercury advisory committee that was helping guide the agency on mercury standards, "Americans will not get any significant reduction in mercury from power plants until 2018" under the new mercury rule. He added that full reductions won't be realized until well after 2018 because companies will still be able to trade in mercury credits. EPA disbanded the advisory committee Shore served on before the agency released its proposed mercury rule in 2003.

Burnett at EPA said because of mercury's exposure pathway -- mainly via contaminated fish and not via inhalation -- cap and trade is an appropriate control method. He said that mercury emissions due solely to power plants will no longer pose a human health risk after the interstate and mercury rules have been in place through 2020.

EPA has been successful in substantially reducing mercury emissions in the past. In the mid-'90s, the agency adopted rules that required a 90 percent reduction in mercury emissions by medical and municipal incinerators. That industry was successful in meeting the 90 percent reduction threshold and, in turn, advocates note that the technology for reducing mercury already exists.

"EPA's mercury rule is built on a shaky legal foundation and is inconsistent with the Clean Air Act," Shore said. "Our nation has not finished dealing with the mercury problem."

For more information on mercury, visit www.epa.gov or www.nrdc.org. For more news from The Nation's Health, visit www.apha.org/tnh.

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