EPA Inspector Finds Mercury Proposal Tainted
Agency Staff Was Told to Set Limits Backing Bush’s ‘Clear Skies’ Initiative, Report Says

By Shankar Vedantam
Washington Post Staff Writer
Friday, February 4, 2005;
The Environmental Protection Agency ignored scientific evidence and agency protocols in order to set limits on mercury pollution that would line up with the Bush administration’s free-market approaches to power plant pollution, according to a report released yesterday by the agency’s inspector general.
Staff at the EPA were instructed by administrators to set modest limits on mercury pollution, and then had to work backward from the predetermined goal to justify the proposal, according to a report by Inspector General Nikki Tinsley.
Mercury is a toxic metal released as a byproduct by coal-burning power plants and other industries, and it is known to have a range of harmful health effects, especially on young children and pregnant women.
The proposal in contention was issued by the agency in December 2003 to clamp down on pollution by mercury, which also occurs naturally in the environment. Tinsley called for an "unbiased" restructuring of the plan, even if it meant delaying the rule beyond next month, which was when it was to be finalized.
Agency officials said yesterday that Tinsley did not understand the science and limitations of mercury control, disputing her charges that the proposal was politically biased or scientifically unsound. Agency spokeswoman Cynthia Bergman said she expects the final mercury rule to be released next month on schedule.
Although industry scientists said Tinsley had exceeded both her mandate and her expertise, two staff members at the agency involved in the rule-making said the report accurately described the pressures placed on staff by political appointees.
"I don’t think anyone has ever seen as much political influence in the development of a rule as we saw in this rule," said one EPA staff member, who attended meetings between administrators and staff. "Everything about this rule was decided at a political level. . . . The political level made the decisions, and the staff did what they were told."
This staff member and another, both of whom asked for anonymity because they feared the consequences of being identified, said that instead of considering a range of possibilities, staff members were told they had only one.
"Maybe we would have come to the same conclusion [anyway], but we didn’t necessarily look at the other options," the second staff member said. "We were driven by one option."
The agency’s plan made clear that the EPA preferred to regulate mercury in a manner similar to the proposals in President Bush’s "Clear Skies" legislative initiative, which has been bogged down in Congress. This cap-and-trade approach calls for a system whereby polluters must meet collective pollution-control targets but can trade credits so that not all plants must meet the same standard. It aims for overall reductions in mercury of about 29 percent by 2010, and a total reduction of 70 percent by 2018.
Industry welcomed the proposal, which involved lower costs and less burdensome regulations.
The only alternative to the plan was the more conventional approach to pollutants — a cap on the pollution emitted at every plant. This proposal called on power plants to reduce mercury emissions from about 48 tons a year to 34 tons by 2008 — a reduction of about 25 percent.
The IG’s report criticized both ideas. It said the free-market approach did not fully account for "hot spots" — areas that could end up with higher levels of pollutants under the cap-and-trade system — and several specific health concerns, including the impact on Native American tribes.
The 25 percent target in the other option was smaller than it should have been, the report said, and was obtained only after scientists were given the number and told to find ways to justify it.
Tinsley’s report said EPA staff discussed various scenarios to justify the "predetermined target."
"They didn’t want to outperform their Clear Skies legislation," said John Walke, clean-air director for the Natural Resources Defense Council, an environmental advocacy group. He argued that the flat reduction approach was deliberately designed to look worse than the cap-and-trade solution. If the flat reduction seemed "better than Clear Skies, the public would see it was being shortchanged by a decade."
In a back-and-forth rebuttal at the end of the report, the EPA’s assistant administrator for air and radiation, Jeffrey R. Holmstead, disagreed sharply with Tinsley’s conclusions, and described her report as inaccurate and flawed.
"The report characterizes the process as incomplete before it is even finished," said Bergman, the spokeswoman.
Bergman did not dispute that administrators settled early on the 34-ton mercury limit, but she said the target had been chosen after considerable work had been expended by the agency in developing the Clear Skies initiative.
"It’s not biased," Bergman said. "It factors in the status of mercury control technologies, what works for specific coal types, and we don’t want to trigger massive fuel switching. The Clean Air Act allows us to consider those things."
Scott H. Segal, a spokesman at the Electric Reliability Coordinating Council, said that more ambitious targets would have prompted power plants to switch from coal to natural gas, "which is pretty hard on the elderly and those living on fixed incomes."
"This report from the IG is another in a long line of reports that office has done that go well beyond the expertise of the office in either legal or policymaking areas," he said.
Environmentalists, EPA officials and industry scientists agreed that in the short run, the best way for Americans to protect their health is to follow safety guidelines issued last year that call for reduced consumption of fish known to have high mercury levels. Women of childbearing age in particular should avoid shark, swordfish, king mackerel and tilefish, as well as larger tuna species such as albacore, health authorities said.