LTR to EPA on Mercury from Sesn. Boxer, Kerry, Leahy & Jeffords [View All]

[TayTay]

March 24, 2005

Dear Administrator Johnson:
It was both troubling and disheartening to learn from this week’s Washington Post article that the Environmental Protection Agency omitted consideration of a key piece of analysis, conducted by the Harvard Center for Risk Analysis, from the mercury rules finalized last week. It appears that EPA excluded consideration of the Harvard study because these findings estimated far greater health benefits, including cardiovascular benefits, from regulating mercury emissions from power plants than the Administration asserted in one of the final rules. The Agency did so even though there was a study done by the EPA water office that found similar results and emphasized the economic benefits of reducing mercury’s cardiovascular effects. We would like a full explanation of why this failure occurred, including whether you were aware of the Harvard study results and consented to disregarding its findings.

We know that you, as a scientist and a career EPA employee, understand how important it is that the Agency’s rulemaking process be as transparent, credible and objective as possible. Unfortunately, the Agency’s dismissal of the Harvard study is yet another example of the irregular practices the Administration employed to manipulate these rules. From the beginning, the Administration has ignored scientific evidence, technological opportunities and economic analyses that clearly show much more effective and expeditious mercury controls are warranted and feasible. Criticisms by the Government Accountability Office and the EPA Inspector General remain unanswered. Commitments by your predecessors, both Administrators Whitman and Leavitt, to do a full analysis of mercury control options were not kept.

Instead, it is obvious that the Administration sought above all to maintain its story line and to adhere to industry assertions that stronger controls could not be implemented because of cost concerns and questionable health benefits. The Harvard study and other recent reports fundamentally challenge these claims. The study was paid for by EPA and peer-reviewed by EPA scientists. The report estimates health benefits of up to $4.9 billion if mercury emissions are reduced to only to 15 tons. This health benefits analysis, which is so central to the rulemaking, should have sounded alarm bells for you and others at the Agency before the mercury rules were finalized. The fact that it was not even considered by EPA raises still more questions about what other relevant information was disregarded by your Agency. It is only from the press—not from you or the Administration—that Congress and the American people learned that EPA disregarded this report.

In a recent letter to you, we and 26 of our colleagues in the U.S. Senate, expressed our concern about EPA’s rulemaking process. This latest breach only underscores those concerns. We hope that you will recognize that the Administration’s mishandling of the mercury rules—including this serious omission—is risking the Agency’s credibility, and, most importantly, the performance of its mandate to protect public health and the environment. We urge you to ask the Inspector General to look into this and possible other irregularities that occurred in the final weeks of the rulemaking process. If you are to be confirmed as the next Administrator, the Senate needs to know that the scientific and procedural integrity of the rulemaking process at EPA will be restored under your tenure
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In addition, because this report’s findings are so central to these rules, we urge you to personally stay the rules until the findings are considered. The Agency should also postpone implementation of the rule until it quantifies the benefits of mercury reductions with respect to cardiovascular impacts and marine fish consumption. With all of the questions that this omission raises, we think it is entirely appropriate to use your authority under the Clean Air Act to stay the rule until these benefits are considered. This breach and the concerns it raises are serious, and they deserve full and prompt answers. We ask that you respond by April 13.
/signed/

Sen. Patrick Leahy (D-Vt.)

Sen. James Jeffords (I-Vt.)

Sen. Barbara Boxer (D-Calif.)

Sen. John Kerry (D-Mass.)