[Congressional Record (Bound Edition), Volume 150 (2004), Part 4]
[House]
[Pages 4625-4653]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     THREAT FROM MERCURY EMISSIONS

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 2003, the gentleman from Maine (Mr. Allen) is recognized for 
60 minutes as the designee of the minority leader.
  Mr. ALLEN. Mr. Speaker, I am here today with the gentlewoman from 
Texas (Ms. Eddie Bernice Johnson) and later others of my colleagues to 
tell a story. It is not the most pleasant story, but it is an important 
story. It is a story of the threat from mercury emissions from coal-
fired power plants around the country to the health of the American 
people, and it is a story of how the Clean Air Act requires that 
mercury be regulated as a hazardous pollutant, but this administration 
has chosen not to do that. In fact, this administration has submitted a 
proposed mercury rule which in major respects was written by the 
industries it is supposed to regulate. This story is an indication of 
what needs to be done to change the direction of the environmental 
policy of this administration.
  Let me begin by talking about the Clean Water Act and the threat that 
mercury emissions pose to people in this country.
  Three decades ago, the Clean Water Act promised that America would 
have water bodies that were fishable, that were swimmable and 
drinkable. Clean water, that was the goal.
  But today, all across this country there are warnings that 
particularly women and children should not eat the fish from our lakes 
and streams and rivers because those fish are contaminated with 
mercury. Mercury pollution has contaminated 12 million acres of lakes, 
estuaries, wetlands, 30 percent of the national total. Nearly every 
State has issued warnings about eating mercury-contaminated fish. 
Seventeen States have mercury warnings for every single inland body of 
water, and 11 States have issued warnings for mercury in their coastal 
areas.
  This is an extremely serious health issue for people in this country. 
In February 2004, a new EPA analysis found that about 630,000 children 
are born in the United States each year with blood mercury levels 
higher than 5.8 parts per billion, the level at which the risk of poor 
brain development is doubled. The study found one in every six women of 
child-bearing age has enough mercury in her bloodstream to threaten the 
health of her child.
  Where does this mercury come from? Well, it comes mostly from the 
burning of coal in electric generating plants; and the mercury goes up 
into the air, it travels great distances through the air, and then 
comes down and it gets into the food chain in our bodies of water. 
According to the National Research Council, effects from prenatal 
exposure include mental retardation, cerebral palsy, deafness, and 
blindness. Adult exposure can produce sensory and motor impairments 
such as slurred speech, blurred vision, tremors, and memory loss.
  Members may remember the expression ``mad as a hatter.'' Well, that 
expression grew out of 19th century England because hatters then were 
literally driven mad because there was a compound containing mercury 
that they used in processing the felt that went into their hats. 
Mercury can be extraordinarily dangerous in those kinds of concentrated 
forms. Mercury also threatens our loons, our ducks, our mammals. Recent 
evidence shows that exposure threatens reproductive success, liver 
damage, kidney damage, and neuro-behavioral effects.
  Like 41 million Americans, I love to go fishing, but it has changed 
because fresh water fish in so many instances cannot be eaten without 
risk of mercury contamination, and that is why our States have so many 
warnings about the risks of mercury.
  In Maine, my home State, we have about 26,000 people employed in the 
fishing industry, and we have thousands and thousands of recreational 
fishermen. Nationwide, recreational fishing generated more than $35.6 
billion in expenditures in the year 2001

[[Page 4626]]

and $116 billion of total economic output. It supported more than 1 
million jobs.
  Now, in December the Bush administration was faced with a court 
requirement that it submit a proposed rule to regulate mercury 
emissions from power plants. Unfortunately, the rule that they proposed 
reinterprets the Clean Air Act, I believe, illegally in order to help 
polluters. It dramatically delays by how soon and by how much plants 
will have to clean up their act. Under the Clinton administration, EPA 
concluded that mercury is a hazardous air pollutant that had to be 
regulated under the strict section 112 entitled ``Hazardous air 
pollutants.''
  Section 112 requires that EPA issue a maximum achievable control 
standard which would require every plant, here is one of the key 
differences, it would require every plant to reduce mercury emissions 
by 2007 to the maximum achievable level. Instead, the Bush 
administration proposes to regulate mercury, a hazardous air pollutant 
under section 111, ``Standards of performance for new stationery 
permits,'' in order to allow the use of tradeable permits.
  Senator George Mitchell of Maine and the gentleman from California 
(Mr. Waxman), and all of the Members of this body who worked together 
in 1990 to write the Clean Air Act amendments, I know intended for EPA 
to regulate hazardous air pollutants under the section of the law 
entitled ``Hazardous air pollutants.'' It is exactly that simple. But 
the Bush administration proposal delays reductions. EPA agreed in court 
to regulate mercury emissions by December 15, 2007. This proposal 
delays any regulation until 2010 and full implementation to 2030. The 
cap-and-trade system they propose requires only a 29 percent reduction 
in 2010 and a 69 percent reduction by 2018.
  So what we have is a weakening of the Clean Air Act in a way that I 
believe is absolutely illegal. But the EPA has not come to this with 
clean hands. Their own modeling shows that the 69 percent cut will not 
be achieved until 2030 because the trading system encourages many power 
plant owners to delay making improvements.
  Here is a quote from Jeffrey Holmstead, the assistance environmental 
protection administrator in charge of air. This is what he says today: 
``What our models now show is we won't get there as soon as we expected 
we would.'' That is what he told the New York Times on Sunday, but the 
truth is the EPA knew very well that their mercury proposal would take 
well beyond 2025.
  The proposal is designed to mirror the President's Clear Skies 
initiative. Clear Skies is a classic case of chutzpah, a triumph of 
marketing over substance, if I have ever heard one.

                              {time}  1545

  In July 2003, the gentleman from Massachusetts (Mr. Markey), the 
gentleman from New Jersey (Mr. Pallone), the gentlewoman from 
California (Mrs. Capps) and I wrote to President Bush asking him to 
correct the claim made in the State of the Union address that his plan 
would mandate a 70 percent cut in air pollution from power plants by 
2018. It was not true. In fact, the underlying EPA modeling made it 
clear that the reductions that the President proposed would not be 
achieved until years after 2018. We simply asked the President to get 
back to us and study by what date his proposal would actually reach 
that 69 or 70 percent reduction. Jeffrey Holmstead responded to our 
letter for the EPA and he wrote, ``The presence of banking will likely 
result in some undercontrol for a short period of time after the 
decline.'' If he knew that the goal was not going to be achieved, that 
the proposal would result in undercontrol, how could he be surprised 
today by the agency's predictions that 70 percent reductions would not 
come true when they said they would?
  These reductions are really embarrassing. I am going to go on shortly 
to talk about some of the evidence out there that is absolutely 
compelling that, in fact, we can clean up, in most cases, 90 percent of 
the pollution from utilities burning coal with existing technology. We 
can get very, very close to that standard in a relatively short period 
of time.
  What I would like to do is to stop my remarks for the moment, to 
which I will come back, and thank the gentlewoman from Texas (Ms. Eddie 
Bernice Johnson) for being with me here today to discuss the Bush 
administration's failure to come up with a reasonable proposal to 
regulate mercury emissions from power plants.
  I yield to the gentlewoman.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I appreciate the 
opportunity to be here this afternoon and I thank my colleague from 
Maine for being willing to come to the floor and talk about a very 
serious issue.
  I also applaud my colleagues for their hard work in bringing us 
together this afternoon, I think there will be others, to talk about a 
serious public health crisis that our country faces. That crisis is 
caused by mercury pollution. It is not only a national problem, it is 
also a very local one as well. The State of Texas leads the Nation in 
mercury pollution. Mercury emission from power plants is the major 
culprit. These plants dumped 8,968 pounds in 2001 alone. As a result, 
the whole gulf coast region has been placed under a consumption 
advisory. Our major fishing lakes are subject to such advisories.
  Mr. Speaker, the citizens of Texas are urging us to take prompt and 
effective action to clean up mercury pollution from power plants. The 
Environmental Protection Agency's current proposals on mercury fall far 
short of what the law requires. The agency's proposals fail to protect 
the health of our children and our environment. This is especially true 
for Texas, where mercury emissions would increase, not decrease, under 
the proposed plan. We ask the EPA to carry out the requirements of the 
Clean Air Act to protect our Nation from toxic mercury contamination. 
We urge the agency to impose a 90 percent reduction in the mercury 
leaching from coal-burning power plants.
  Last year, EPA proposed two alternative rules to address mercury 
emissions. Unfortunately, both of these proposals failed to meet clean 
air directives under section 112(d) for cleaning up mercury. EPA's 
proposals permit far more mercury pollution, and for years longer, than 
the Clean Air Act allows. This is playing games with the health of our 
Nation. Time and again scientists around the world have proven the 
toxicity of mercury. The agency's own scientists just released a study 
finding that approximately 630,000 infants, as my colleague said 
earlier, that were born in the United States in the dawn of this 
millennium had blood mercury levels higher than what is considered 
safe. This is a doubling of previous estimates.
  Mercury emissions have also contaminated 10 million acres of lakes 
and 400,000 miles of streams. Soaring mercury levels have triggered 
advisories warning America's 41 million recreational fishermen that the 
fish they catch may not be safe to eat. Furthermore, evidence continues 
to mount that mercury causes reproductive problems in wildfowl 
populations such as loon and mallard ducks. Other fish-eating wildlife 
populations are at risk as well.
  Mr. Speaker, we can address this public health and environmental 
problem if we just would do it. According to many States, industry 
experts and past EPA analyses, the technology to dramatically clean up 
these plants is available and affordable. I am concerned that EPA does 
not fully analyze the range of controls recommended by State utility 
and environmental and public health members of EPA's advisory group on 
this rule. I do not know what is holding EPA hostage, but once again 
they are failing to fulfill its reasonability to adopt standards that 
protect the public health and environment.
  I look forward to working with my colleagues to call on EPA to 
develop appropriate mercury standards that reduce mercury emissions in 
the shortest time possible to protect public health and the 
environment. I thank my colleague for this opportunity to make a 
statement on this issue.
  Mr. ALLEN. I thank my friend from Texas and I appreciate her 
willingness to engage in this issue and take a leadership role in 
trying to protect our

[[Page 4627]]

citizens from the effects of mercury pollution.
  I want to go back to the issue that we always hear about whenever we 
wind up talking about new kinds of environmental controls on a toxic 
pollutant. Industry always says, ``It's too expensive, we can't do it'' 
every single time. But the reduction levels that are proposed by the 
EPA are really embarrassing for our country. In February, the Southern 
Company, one of the largest mercury emitters in the world, announced 
that recently installed mercury control technologies at the Ernest 
Gaston coal plant in Alabama are removing about 80 percent of the 
mercury right now. Right now. They are very, very close to that 90 
percent standard that would be the goal. The company's experts noted 
that this would barely comply with some draft versions of a MACT 
standard, a maximum achievable control technology standard, but they 
are complying. They are there. Furthermore, EPA's own data shows that 
most modern coal-fired power plants can and do achieve greater than 90 
percent control of mercury and other toxic chemicals.
  According to both industry and Department of Energy pilot tests and 
testimony in front of the Committee on Energy and Commerce, 90 percent 
reductions in mercury emissions are feasible and economical today. We 
are not suggesting they should be imposed today. There needs to be some 
time. But this could all be done between now and 2007 or 2008 and be 
completely feasible.
  The data from EPA's interim report on the control of mercury from 
coal-fired boilers demonstrates that power plants with fabric filters 
and wet scrubbers are capturing over 90 percent of their mercury when 
bituminous coal is burned. There are a number of technical ways in 
which you can actually collect mercury. Carbon injection and a compact 
hybrid particulate collector baghouse, so-called, is one way of 
achieving the goal. Other industries like hospitals and city waste 
incinerators have been required to meet that 90 percent standard for 
over a decade.
  In February of this year, the gentleman from Maine (Mr. Michaud) and 
I both wrote to the Bush administration asking that Maine people be 
given the opportunity to comment on EPA's proposed mercury emissions 
rules. There is a reason why those of us in Maine are particularly 
concerned about it. There is four times as much mercury in the feathers 
of loons in Maine as there is in the feathers of loons in Oregon. The 
wind blows west to east. It always has and it always will. Coming 
particularly out of those coal-fired power plants in the Midwest, 
mercury emissions are traveling east and northeast and contaminating 
many of our most scenic areas in the country. We do not have a single 
coal-fired power plant in the State of Maine, but our mercury is coming 
from other parts of the country. We need help.
  The gentleman from Maine (Mr. Michaud) and I, as I said, wrote to the 
Bush administration in February asking simply that we have the right to 
a hearing, that EPA come to Maine and hold a hearing. They refused. The 
closest they got to us was Philadelphia. If the EPA would not come to 
Maine, I decided, well, we would have a hearing there, anyway; I would 
call the mock hearing, I would invite interested members of the public. 
And they came, they came in force and their testimony was compelling, 
both as to the health risks of mercury and the inadequacy of the Bush 
administration proposal.
  Mr. Speaker, I would like to submit the testimony given at that 
hearing in Maine as a part of the record of this proceeding here.

 Testimony of Maine Attorney General Steven Rowe on Standards Proposed 
by the Environmental Protection Agency for Mercury Emissions From Power 
                                 Plants

       Good afternoon. Thank you, Congressman Allen, for the 
     opportunity to present these comments on a matter of great 
     importance for the State of Maine and its citizens: the need 
     for strict federal mercury emission standards for power 
     plants. My office formally requested that EPA hold a public 
     hearing on this proposal in New England, but that request was 
     denied. With that in mind, I especially appreciate your being 
     here today to draw attention to this matter.
       Regrettably, EPA's recent regulatory proposals under the 
     Clean Air Act tend to fall into two categories: (1) those 
     that would degrade air quality, and (2) those that would 
     prevent air quality from improving. The agency's New Source 
     Review regulations are a notorious example of the first 
     category. As Attorney General, I have vigorously opposed 
     EPA's efforts to gut New Source Review, a part of the Act 
     that requires the nation's worst polluters to install modern 
     control technology when modifying their plants. These rules 
     would cause Maine's already serious ozone pollution problem 
     to worsen significantly. We sued the agency in federal court 
     to prevent these reforms from going into effect, and won a 
     major victory on Christmas Eve when the court issued a stay 
     until the case is decided on the grounds that the rules 
     appear to violate the Clean Air Act.
       EPA's proposed mercury rule falls into the second category: 
     a new program that will prevent us from realizing the 
     reductions in mercury emissions that the law promises. This 
     is not a bold new environmental initiative, but a giveaway to 
     the owners of coal-burning power plants.
       Atmospheric mercury deposition is a serious public health 
     and environmental problem. Mercury is a powerful neurotoxin 
     that accumulates in the body. EPA's own studies show that 
     over 600,000 babies born in this country each year may be 
     exposed to levels of mercury in the womb so high that it can 
     affect their brain development. Maine and 44 other states 
     have issued fish consumption advisories because of mercury 
     levels found in our freshwater fish. Mercury is also 
     poisoning the wildlife that feed on those fish. Loons in 
     northern New England, the classic symbol of our wilderness 
     lakes, have the highest levels of mercury in the country.
       Mercury emissions from power plants to our south and west 
     are a major source of deposition in Maine, and we desperately 
     need strong federal regulation to address this problem. 
     Despite the need for strict federal mercury emission 
     standards, and the fact that such standards are legally 
     required by the Clean Air Act, EPA fails to deliver in this 
     proposal.
       As a matter of policy, this proposed rule is flawed for two 
     basic reasons. First, the levels of reduction in mercury 
     emissions are far too low. The proposed reductions not only 
     are insufficient to protect public health and the 
     environment, but they are considerably less than what can be 
     achieved through available control technology. Second, the 
     proposed ``cap and trade'' program is inappropriate for 
     regulation of a toxic substance like mercury. This approach 
     allows some sources to accumulate large quantities of 
     ``pollution credits'', which in turn allows them to continue 
     to pollute at high levels. The result is ``hotspots'' of 
     deposition in areas downwind. While a cap and trade program 
     may make good sense for regulating a non-toxic pollutant like 
     carbon dioxide, it is unacceptable for a hazardous pollutant 
     like mercury.
       As a matter of law, EPA's proposal is defective in several 
     ways. Three years ago EPA formally concluded that mercury is 
     a hazardous air pollutant, and therefore it is ``appropriate 
     and necessary'' to regulate its emissions from power plants 
     under Section 112 of the Act. However, EPA has now tried to 
     reverse course, and has announced that mercury may not be a 
     hazardous air pollutant after all. Instead, the agency 
     suggests that it may be able to regulate mercury under 
     Section 111 of the Act, governing New Source Performance 
     Standards. This idea flies in the face of the plain language 
     of the statute, which requires that EPA conduct a formal 
     ``delisting process'' before it can decline to regulate a 
     substance under Section 112 that it has concluded is a 
     hazardous air pollutant. EPA's proposal to summarily rescind 
     its prior finding that regulation of mercury is ``appropriate 
     and necessary'' under Section 112 has no support in the law.
       There are numerous other legal defects with this proposal, 
     and we are describing them in detail in written comments to 
     be submitted to EPA. For our purposes today, it is enough to 
     observe that the Environmental Protection Agency is once 
     again failing to fulfill its responsibility to adopt 
     standards that protect the public health and environment. 
     Instead, the agency seems committed to re-interpreting the 
     laws it administers in an attempt to avoid that 
     responsibility. If this proposal is finalized in its current 
     form, we will likely be forced to file another lawsuit in 
     federal court to force EPA to do its job. I sincerely hope 
     that will not be necessary. Thank you.
                                  ____


 Testimony of Senate Majority Leader Sharon Treat, Hearing on Federal 
                      Mercury Emissions Proposals

       Congressman Allen, I am Sharon Treat, Majority Leader of 
     the Maine Senate. I am a member and former chair of the 
     Mercury Products Advisory Council and an environmental 
     lawyer. I am here today to testify in opposition to proposals 
     by the federal Environmental Protection Agency (EPA) which 
     will significantly undermine the effectiveness of the Clean 
     Air Act with respect to control and reduction of mercury 
     emissions, leading to even dirtier air in Maine and 
     significant, harmful, health and environmental impacts.
       Maine has gone to extraordinary lengths to control mercury 
     emissions from sources

[[Page 4628]]

     within our State, and for good reason. It is hard to think of 
     a symbol of the purity and wildness of Maine's north woods 
     more ubiquitous than the loon. Yet despite our efforts at the 
     State level, loons in Maine are threatened with the highest 
     measured mercury levels found anywhere in the United States, 
     due in large part to our unenviable position at the tail end 
     of the Nation's prevailing winds, which sweep mercury and 
     other airborne pollutants from States to the west and south 
     of us. A quarter of Maine's loon population is considered to 
     be at ``high risk'' from the effects of mercury, and studies 
     show that mercury pollution is the decisive factor in the 
     negative loon population growth rate in Maine.
       Mercury deposition has contaminated our lakes and rivers, 
     to the extent that Maine's Bureau of Health has issued strict 
     fish consumption advisories for all of Maine's lakes, rivers 
     and streams, as well as for coastal bluefish and striped 
     bass. It is a sad fact, at odds with our pristine image as 
     ``vacationland'' and ``Maine, the way life should be.''
       Surveys done both in Maine and nationally, indicate that 10 
     to 20% of women of childbearing age have blood levels of 
     mercury considered too high for the safety of a developing 
     fetus. The Center for Disease Control and Prevention has 
     found that some four million American women of child-bearing 
     age have blood mercury levels that exceed E.P.A.'s 5.8 parts 
     per billion standard. Exposure to mercury puts the babies 
     born to these women at risk of brain damage, learning 
     disabilities and motor skills deficits.
       It is time for the Federal Government to step up to its 
     responsibilities in this area. That means at a minimum 
     enforcing the Clean Air Act to require antiquated coal 
     burning plants to upgrade to modern pollution control 
     technology, and to continue to require state of the art 
     controls on new facilities. It does NOT mean weakening the 
     already weak law we have to be even more ineffective, as EPA 
     proposes.
       Section 112(d) of the Act sets forth a ``maximum achievable 
     control technologies'' standard to control emissions from 
     hazardous air pollution sources equivalent to what is 
     achieved by the best-controlled similar source in the 
     industry. When Congress amended the Clean Air Act in 1990, it 
     specifically called for ``maximum achievable'' clean-up of 
     major sources of toxic air pollution, including mercury. It 
     is beyond dispute that EPA has the authority under the Act to 
     adopt a standard requiring a minimum of 90 percent mercury 
     emissions reductions at all of the Nation's power plants. 
     Instead, EPA had proposed two alternatives each of which fail 
     to protect the public health and carry out the requirements 
     of the Clean Air Act--(1) that the Agency has discretion, but 
     is not required, to apply a weak emission standard to 
     existing sources, or alternatively (2) creating a novel 
     ``pooled performance standard'' that is apparently designed 
     to escape the restrictions of the law entirely. Both 
     alternatives fall far short of the clean air standards 
     required and should be rejected.
       I think it is important for EPA to recognize the 
     longstanding efforts of this State to make sure that we have 
     done everything we can to reduce and even eliminate sources 
     of mercury pollution here in Maine. We have done so even 
     though our actions have placed practical and cost burdens on 
     our citizens, business and government, because we recognize 
     we must take responsibility for that part of the problem we 
     have ourselves created.
       One of my very first bills in 1990, as a freshman State 
     representative, was legislation to ban mercury-containing 
     batteries from garbage incinerators. I subsequently passed a 
     resolve that required the State to identify all sources of 
     mercury within and outside of the State and to develop a 
     strategy to control and reduce that mercury. From that 
     legislation, a comprehensive report was developed which 
     provided scientific data that established the extent to which 
     mercury deposition comes from sources outside the State, as 
     well as in-state sources such as garbage incinerators. That 
     report has led to a series of laws taking stringent measures 
     to control in-state sources.
       In the spring of 2000, the 119th Legislature passed An Act 
     to Reduce the Release of Mercury into the Environment from 
     Consumer Products, (Public Law 1999, c.779). The law defines 
     mercury-added products to include thermostats, thermometers, 
     electrical switches, relays or other electrical devices, 
     scientific and medical devices, and lamps if mercury is added 
     during manufacture of the product. The law established a 
     Mercury Products Advisory Committee (Committee) to advise the 
     Department of Environmental Protection (DEP), the State 
     Planning Office (SPO) and the Legislature on actions needed 
     to prevent and reduce the environmental releases of mercury 
     from consumer products. The law contains several key 
     provisions intended to increase the amount of mercury-added 
     products collected for recycling. These provisions include:
       As of July 15th, 2002, businesses and public entities may 
     not knowingly place a mercury-added product in the solid 
     waste stream sent for disposal.
       As of January 1, 2005 this disposal ban is extended to all 
     Maine residents.
       The development and implementation of an aggressive 
     education and outreach campaign by DEP to inform Maine 
     citizens and businesses about the disposal bans and proper 
     waste management techniques.
       State assistance to municipalities and regional 
     associations to develop collection programs.
       A commitment by the State, within available resources, to 
     develop and implement a capital investment grant program for 
     public infrastructure development and improvements to enable 
     municipalities to collect and recycle mercury-added products 
     and universal wastes.
       Since the passage of P.L. 1999, c. 779, the Legislature has 
     passed additional mercury legislation, including the 
     following:
       An Act to Further Reduce Mercury Emissions from Consumer 
     Products, P.L. 2001, c. 373. This bans the sale of mercury 
     fever thermometers and dairy manometers; requires 
     manufacturers to provide written notice to the Department 
     before offering a mercury-added product for sale in Maine; 
     prohibits the purchase of mercury or mercury compounds for 
     use in schools; and requires manufacturers who sell products 
     to hospitals to provide a certificate of mercury content upon 
     hospital request.
       An Act To Address The Health Effects of Mercury Fillings 
     was enacted as P.L. 2001, c. 385. It requires the state 
     Department of Human Services, Bureau of Health to prepare a 
     brochure and a poster on alternative dental restorative 
     materials and procedures and their health and environmental 
     impacts, and for dentists who use mercury to display the 
     poster and provide patients with the brochure.
       An Act to Prevent Mercury Emissions when Recycling and 
     Disposing of Motor Vehicle was enacted as P.L. 2001, c. 656. 
     It prohibits the sale of mercury switches in automobiles as 
     of January 1, 2003 and establishes a statewide system to 
     collect, consolidate and recycle the switches. A bounty of $1 
     is provided to people who remove switches and return them for 
     recycling, with the money to be provided by the auto 
     manufacturers. Although challenged in court by the auto 
     manufacturers (who argued in part that such programs are a 
     federal, not state, responsibility), this law was recently 
     upheld by the Federal District Court.
       An Act to Phase Out the Availability of Mercury-added 
     Products [P.L. 2001, c. 6201. It prohibits the sale of most 
     mercury thermostats used in non-manufacturer applications 
     (effective January 1, 2006), and requests DEP to submit a 
     comprehensive strategy to further reduce the mercury content 
     of products by January 2003.
       An Act to Change the Reporting Requirements for the Mercury 
     Switch Removal Program [P.L. 2003,c. 6] requires the DEP to 
     file its initial status report on this program by January 1. 
     2004. The program provides for the removal of mercury 
     switches from motor vehicles before they are crushed and 
     shredded for the scrap metals market.
       An Act to Reduce Mercury Use in Measuring Devices and 
     Switches [P.L. 2003, c. 221], bans the sale of most mercury 
     switches, relays and measuring devices beginning July 1, 
     2006. Measuring devices include barometers, gastrointestinal 
     tubes, flow meters, hydrometers, hygrometers, manometers, 
     pyro-
     meters, sphygmomanometers and thermometers. The effective 
     date of the ban coincides with the effective date of a 
     similar law in Connecticut, and gives manufacturers time to 
     phase in non-mercury alternatives or seek an exemption. The 
     law allows the DEP commissioner to grant an exemption from 
     the ban if the manufacturer of the mercury product 
     demonstrates that functional non-mercury alternatives are not 
     available.
       An Act to Require the Installation of Dental Amalgam 
     Separator Systems in Dental Offices [P.L. 2003, c. 301], 
     requires the installation of amalgam separator systems in 
     dental offices by December 31, 2004. The separators trap 
     amalgam particles to prevent the discharge of mercury in 
     dental office wastewater. If installed prior to March 20, 
     2003, the separators must achieve a minimum of a 95%, while 
     separators installed on or after that date must have a 
     minimum of a 98% removal efficiency as determined through 
     testing under ISO 11143.
       Maine has also put state dollars into these programs. In 
     addition to paying for DEP staff to administer these programs 
     and funding our defense of the auto switch provisions in 
     court, we have also put funding into municipal mercury 
     collection programs. In 2000, the Legislature allocated 
     $438,000 from the Solid Waste Management Fund to jump start 
     the activities mandated by the legislation. In November 2002, 
     Maine voters approved an environmental bond request, of which 
     $900,000 was slated to fund completion of the shed deployment 
     statewide and the infrastructure/collection needs. We are 
     still struggling with identifying funding sources to assist 
     communities with the ongoing costs associated with these 
     collection and recycling efforts. In the private sector, many 
     Maine businesses have also incurred costs installing 
     pollution control equipment to meet tough in-state mercury 
     emission standards and complying with various mercury product 
     separation and collection mandates.
       Needless to say, Maine has done its part, having enacted 
     the most sweeping mercury control laws in the country. While 
     we are more than willing to do whatever we can,

[[Page 4629]]

     our pollution from mercury is in large part a federal 
     responsibility: it comes from outside the state, and there is 
     already a requirement under the Clean Air Act for the federal 
     government to address it. It is time for the EPA to comply 
     with the law, not undermine it. It is time for the EPA to 
     provide assistance to states dealing with this toxic metal 
     which threatens our children and our wildlife, not make our 
     efforts more difficult. Thank you.
                                  ____


  Statement of Everett ``Brownie'' Carson, Executive Director of the 
                   Natural Resources Council of Maine

       (On the U.S. Environmental Protection Agency's Proposed 
     Rulemaking on National Standards for Reduction of Mercury 
     Emissions From Coal and Oil-Fired Electric Utility Power 
     Plants and Maximum Achievable Control Technology (MACT), 
     Published in the Federal Register on January 30, 2004 (69 FR 
     4692), EPA Docket ID Nos. OAR-2002-0056 and A-92-55.)
       Presented at Hearing in Augusta, ME March 1, 2004
       My name is Brownie Carson. I testify here today on behalf 
     of the Natural Resources Council of Maine, a citizen 
     supported environmental advocacy organization with 8000 
     members and supporters. Thank you to Congressman Tom Allen 
     for giving us all the opportunity to express our views on the 
     critical environmental issue of proposed national standards 
     for mercury emissions from electric utility power plants. We 
     would like to thank you and the entire Maine Congressional 
     delegation for your efforts on this and related clean air and 
     environmental matters. We commend, for example, Senator 
     Collins strong leadership in introducing legislation that 
     would eliminate and retire mercury.
       On the issue at hand, we conclude that both the two 
     alternative proposals put forward by the U.S. Environmental 
     Protection Agency (``EPA'' or ``Agency'') for mercury 
     emissions standards are environmentally unsound and legally 
     deficient. These proposals go in the wrong direction.
       These things we know:
       (1) Power plants that burn coal and oil release mercury and 
     are the largest source of mercury released to the environment 
     in the United States;
       (2) The mercury emitted from these plants is transported 
     downwind where Maine and other Northeast states receive a 
     disproportionate share;
       (3) In the environment, mercury from power plant emissions 
     is converted into methylmercury, the dangerous organic form 
     of the element;
       (4) Methylmercury builds up and is magnified in the food 
     chain making it a major environmental and public health 
     hazard; methylmercury concentrations in fish are the worst 
     pathway for human exposure;
       (5) Exposure to methylmercury, a potent neurotoxin, puts 
     small children, infants and fetuses at risk of brain damage, 
     learning disabilities and motor skills deficits;
       (6) An unacceptably high proportion of women in Maine and 
     nationally have blood levels of mercury considered too high 
     for the safety of a developing fetus; and
       (7) Mercury also has insidious effects wildlife: Maine's 
     loon population is at ``high risk'' with a negative growth 
     rate attributed to mercury exposure. Maine bald eagles have 
     high mercury body burdens and the lowest reproductive rate of 
     any major bald eagle population in the country;
       These facts are undisputed. EPA's own February 1998 report 
     to Congress summarized how mercury emissions from power 
     plants caused toxic exposures and grave threats to public 
     health.
       There is a ready solution both technically and legally. The 
     technical solution is simply to retrofit each of the 1,100 
     coal fired power plants with modern emission control 
     equipment.
       Commercially available technologies and techniques in use 
     today achieve up to 91 percent emissions reductions over 
     uncontrolled levels--and do so at a cost of approximately 1/
     50th of a penny per KWh. Up to 98 percent reductions have 
     been observed in tests of the most modern mercury controls.
       These conclusions are supported by EPA's own analysis in 
     2001 which found that the use of currently available 
     pollution controls at each power plant could reduce total 
     emissions by 90% by 2008. The Northeast States for 
     Coordinated Air Use Management in 2003 reviewed the pollution 
     control technologies and affirmed 90% reductions can be 
     achieved with existing technologies.
       Moreover, there are no legal obstacles to achieving these 
     reductions. Section 112 of the Clean Air Act, that regulates 
     hazardous air pollutants, sets forth the ``maximum achievable 
     control technologies'' standard. The Act contemplates control 
     of emissions from hazardous air pollution sources equivalent 
     to what is achieved by the best-controlled similar source in 
     the industry. When Congress amended the Clean Air Act in 
     1990, it specifically called for ``maximum achievable'' 
     clean-up of major sources of toxic air pollution, including 
     mercury. It is beyond dispute that EPA has the authority 
     under the Act to adopt a standard requiring a minimum of 90% 
     mercury emissions reductions at all of the nation's power 
     plants.
       In Maine, a remarkable consensus on mercury pollution has 
     led to positive action.
       In 1997, the Maine Legislature called for a report and plan 
     of action to control mercury pollution. The State's goal, set 
     back then, was ``to ensure that, over time, Maine people and 
     wildlife are able to enjoy the full use of the state's waters 
     and fisheries'' and to ``make Maine's fish safe to eat and to 
     protect our wildlife and other resources.''
       Over ensuing years Maine took a series of actions on 
     mercury, including the following:
       Before 2000, we achieved mercury emission reductions of 
     more than 90% at four municipal waste combustors achieving 
     substantial reductions, meeting or exceeding federal limits, 
     or where inapplicable applying equally stringent state 
     limits;
       In 2000, we closed the Holtra-chem, the heavily polluting 
     chlor-alkli plant. In 2002, we made arrangements for safe 
     removal and storage of 185,000 pounds of surplus mercury from 
     the site;
       In 2003, we enacted a law that bans the sale of most 
     mercury-added switches, relays, and measuring devices; and
       In 2002, we enacted a landmark law to require automobile 
     manufacturers to recover mercury-containing switches from 
     vehicles before they are scrapped.
       When Maine's mercury auto switch law was challenged in 
     Court, the State mounted a legal defense. On February 17, 
     federal District Judge John Woodcock turned back the 
     carmaker's challenge and upheld the auto switch law in its 
     entirety.
       The decision rejected all of the carmakers' claims, saying 
     that burdens were reasonably ``imposed on manufacturers in 
     recognition of the fact that the need for a mercury switch 
     recovery program existed solely by virtue of the 
     manufacturers' incorporation of these mercury-laden 
     components in their automobiles for roughly ten years after 
     the industry's cognizance of the mercury disposal problem.''
       This is important, because it points the way to what the 
     federal government should be doing with mercury pollution 
     from power plants. Utilities should simply be made to clean 
     up. That would be 90 percent reductions at all existing coal-
     fired power plants by 2008, that would bring total mercury 
     emissions down from the current 48 tons to five tons 
     annually. ``EPA's proposal would still allow be allowing the 
     release of 15 tons of mercury from the power plants in 
     2018.''
       Operators of power plants have been dodging pollution 
     controls for decades. On the verge of achieving what the 
     Clean Air Act was passed for, legal counsel for the Bush 
     Administration and EPA say that they fear that if they 
     require maximum achievable controls, as specified by the law, 
     the utilities will challenge the rules in court. Threat of a 
     court challenge must not deter EPA from doing what is 
     necessary to protect public health and the environment.
       We urge EPA to abandon its weak proposals and instead 
     follow the Clean Air Act as written. Genuine maximum 
     achievable control standards are technologically feasible, 
     legally sound and eminently defensible. We urge EPA to 
     recognize the health, environmental and economic importance 
     of this outcome to Maine and the nation. Thank you again for 
     the opportunity to present our views on this important issue.
                                  ____


Statement of Lani Graham, MD, MPH, Family Practice Physician and Former 
               Chief Health Officer of the State of Maine

 (On the U.S. Environmental Protection Agency's Proposed Rulemaking on 
 Standards for Reduction of Mercury Emissions From Coal and Oil-fired 
Electric Utility Power Plants and the Use of Maximum Achievable Control 
  Technology (MACT), published in the Federal Register on January 30, 
   2004 (69 FR 4692), EPA Docket ID Nos., OAR-2002-0056 and A-92-55.)

       Good afternoon. I come here today to testify on behalf of 
     the people of Maine, and particularly the children of Maine, 
     who cannot speak for themselves. I am a Family Practice 
     physician, but my real love throughout my professional life 
     has been public health. Two alternative proposals have been 
     offered by the U.S. Environmental Protection Agency (EPA) to 
     reduce mercury emissions from electric utility plants. 
     Neither is acceptable and both will condemn the next 
     generation of Maine people to adverse health impacts from 
     toxic levels of mercury in our environment, to say nothing of 
     the terrible impacts on our wildlife and the natural 
     resources.
       Rather than repeat a lot of the very good scientific 
     information that you have already heard and will continue to 
     hear, regarding why these proposals must be scrapped, I want 
     to provide a little history lesson. It is said that those who 
     do not learn the lessons of history will be condemned to 
     repeat them. This appears to be the reckless course that will 
     be embarked on if these proposals are not substantially 
     altered.
       More than a decade ago, when I was the Chief Health Officer 
     for this state, I received a letter from a Park Official at 
     Acadia National Park. The letter revealed that a fish had 
     been caught in one of the park's lakes and tested for 
     mercury. I could see immediately that the provided results 
     indicated that the fish contained mercury at a level many 
     times what would be considered safe for a child to consume on 
     a frequent basis.

[[Page 4630]]

     The letter queried whether I was going to consider 
     ``posting'' the lake, on the assumption that this particular 
     lake was uniquely contaminated. Needless to say, I was both 
     shocked and frightened. Who in Maine, or even from out of 
     state, might have already been affected by eating fish caught 
     in this lake? It was bad enough that any lake in Maine might 
     be significantly contaminated by a known neurotoxin, but that 
     the particular lake would be in the heart of our widely 
     admired national park was a particular blow. Tragically, that 
     blow was just the beginning of a lengthy investigation that 
     revealed that the lake was not uniquely contaminated, and 
     that it would not be sufficiently protective of public health 
     to post that particular lake or even a dozen such lakes. 
     Based on a study of fish caught from lakes all across Maine, 
     it was clear that a great many lakes were contaminated, and 
     that the contamination could not be accounted for by looking 
     for natural sources of mercury or local pollution. The facts 
     led to a number of conclusions and actions that were among 
     the most discouraging of my tenure as Chief Health Officer in 
     Maine.
       In collaboration with four Departments of State Government 
     (Agriculture, Environmental Protection, Human Services, and 
     Inland Fish and Wildlife), we were forced to issue a 
     statewide warning recommending a strict limit on the 
     consumption of fish caught in Maine lakes by women of child-
     bearing age and children under 8. To my knowledge ours was 
     the first such warning in this country, but, sadly Maine is 
     now one of 28 states that have issued statewide advisories, 
     including three new states in 2002, Florida, Illinois and 
     Rhode Island. I also am aware that New Brunswick, Canada has 
     had to follow suit, making this an international problem. Air 
     pollution does not respect state or international boundaries.
       It is very sad that in these times when childhood obesity 
     is such a problem and good nutrition is the hope of the 
     future, that any Health Official must issue warnings on the 
     consumption of fish, widely respected as healthy food, 
     because it has become contaminated through our carelessness. 
     But worse, from a public health point of view the warning 
     approach to the protection of human health is highly 
     undesirable. It is not effective. No matter how many lakes 
     are posted or warnings issued, large portions of the 
     population are likely to be adversely impacted despite your 
     best efforts. What about the immigrant populations for whom 
     fish is a basic part of the diet and who may not speak 
     English? What about the Native Americans who similarly depend 
     on locally caught fish? What about people with limited 
     education who may not understand the advisories or those who 
     just don't believe there? There is some parallel to the 
     warnings on cigarette packages. Lead paint is another 
     example. Parents are warned of the hazard, but children get 
     poisoned by the thousands anyway. History has taught us that 
     complicated medical advisories are insufficient to be 
     protective of the public's health. Despite the warnings 
     people, particularly children, get sick, become damaged for 
     life, or die. Yet these proposed rules indicate clearly that 
     another generation is being asked to repeat this history 
     lesson. Unless our federal government takes a different 
     course of action, one designed to move us more rapidly toward 
     reducing air pollution, the advisories are likely to remain 
     and the children of Maine will continue to pay the price of 
     this history lesson not learned.
       Another awful lesson that the fish from Acadia National 
     Park taught us is that Maine was not going to be able to 
     solve this problem on its own. The extent and distribution of 
     the mercury contamination indicated to us that local factors 
     could not account for it. The mercury had to be coming from 
     somewhere else. We now know that out beautiful state is the 
     recipient of tons of airborne mercury coming from other 
     states. Nevertheless on the theory that it is best to ``keep 
     your own house clean'' first, Maine people have worked hard 
     over the last decade to reduce all local sources of mercury 
     contamination. But it will never be enough. Without support 
     from outside this state, the advisories are likely to remain 
     in place. More than a decade has gone by since that Acadia 
     National Park fish brought its warning. I urge you not to 
     condemn us and other sites around this country to another 
     twenty years of contamination when real progress can be made 
     now. I urge you to abandon these proposals and return to the 
     Clean Air Act as written.
       Thank you for your attention.


                                                Maine Audubon,

                                      Falmouth, ME, March 1, 2004.
     Re EPA's proposed National Emission Standards for Hazardous 
         Pollutants; and, in the Alternative, Proposed Standards 
         of Performance for New and Existing Stationary Sources: 
         Electric Utility Steam Generating Units; Docket ID No. 
         OAR-2002-0056, 69 Fed. Reg. 4652 (January 30, 2004).

       Good afternoon, Representative Allen, members of the 
     Legislature, fellow 
     Mainers . . ., my name is Susan Gallo: I represent Maine 
     Audubon and our 11,000 members and supporters.
       Representative Allen, we greatly appreciate your continued 
     leadership and good work on behalf of Mainers with regard to 
     the control of mercury pollution. The EPA has put forward 
     several proposals, none of which provides the degree of 
     public health protections mandated by the Clean Air Act. We 
     are here today to share with you our deep concern that the 
     EPA's proposals are not only many times weaker than what is 
     actually required by Clean Air Act, but if accepted will 
     cause irreparable harm to the health of Maine's waters, 
     wildlife and people, particularly women and children, and 
     fall far short of what is urgently needed.
       Power plants are ``major emitters'' of hazardous air 
     pollution, which means that each plant emits more than 10 
     tons per year of one kind of hazardous air pollutant or 25 
     tons per year of all the 188 hazardous air pollutants listed 
     in the Clean Air Act. Coal-fired plants are the nation's 
     largest source of mercury air emissions, emitting 
     approximately 48 tons of mercury each year. One-third of a 
     gram of mercury per year is enough to contaminate all the 
     fish in a 25-acre lake.
       Maine, along with the other New England states, bears the 
     brunt of the nation's airborne mercury pollution. Maine has 
     more than 30,000 miles of rivers, and almost a million acres 
     of lakes--but these waters harbor dangerously high levels of 
     mercury--so dangerous, that in 2002, Maine posted health 
     warnings for all of our lakes and rivers statewide. The EPA 
     and 43 states, including Maine, have posted warnings urging 
     people to avoid or limit consumption of fish. Consuming 
     mercury-laden fish can damage the developing brain and 
     nervous system and can lead to birth defects; such as 
     cerebral palsy, delayed onset of walking and talking, and 
     learning disabilities. Relying on fish consumption advisories 
     will not solve the problem. We must reduce the contamination 
     at its source.
       Because Maine is subject to the highest mercury 
     contamination in the U.S., and given the impact already felt 
     by both people and wildlife, it is imperative Maine's 
     concerns be heard.
       The accumulation of mercury in Maine's environment has 
     reached epic proportions, with mercury levels in rainfall in 
     parts of Maine up to 23 times higher than the EPA standard 
     for human health. Mercury is also accumulating in Maine lakes 
     at an alarming rate, creating deadly habitat for fish-eating 
     birds and mammals. Moreover, people are at risk when they eat 
     fish containing high levels of mercury. As you know, it is no 
     longer safe for pregnant women, nursing mothers, and young 
     children to eat certain fish from our waters. We must act to 
     reduce children's exposure to mercury as we have done to 
     reduce children's exposure to lead in the environment.
       A recent report from the Centers for Disease Control and 
     Prevention found that one in twelve women of childbearing age 
     already has mercury levels above EPA's safe health threshold. 
     Adverse neurological effects of mercury exposure on the 
     young, has lead both the federal and state governments to 
     post advisories against consuming certain fish. The state of 
     Maine along with a majority of other states, advises women 
     who might get pregnant not to eat most types of freshwater 
     fish including rainbow trout and bass.
       Mercury contamination is also a threat to recreational 
     fishing--a vital piece of our state economy. Recreational 
     fishing is a multi-billion dollar industry in Maine; anglers 
     in Maine spent more than $250 million in 2001 alone. Studies 
     indicate that mercury contamination has a direct impact on 
     where people choose to fish, how often they go, and for how 
     long they choose to fish.
       Wildlife that have no choice but to eat fish high in 
     mercury are at risk from the accumulation of mercury in their 
     systems as well. Maine's loons have the dubious distinction 
     of having higher levels of mercury in their blood than loons 
     in any other state. Nearly 30% of Maine's common loon 
     population is at ``high-risk'' for mercury contamination and 
     is less likely to reproduce as a result. Loons accumulate 
     high levels of' mercury in their blood because their diet 
     consists primarily of freshwater fish, which often harbors 
     high levels of mercury. Some loons exposed to high levels of 
     mercury in Maine's environment do not nest successfully 
     because they do not spend enough time incubating their eggs. 
     Others fail to feed their young once they hatch, leaving 
     chicks to die from starvation. Loons in Maine experience 
     higher levels of mercury in their blood, feathers and eggs 
     than in any other state. Also, because loons are able to 
     eliminate mercury from their system when they lay eggs, loon 
     eggs from Maine also have higher levels of mercury than those 
     from any other state. Other fish-eaters like osprey and 
     kingfisher are subject to similarly high levels of mercury 
     from eating fish from Maine's waters. It is imperative that 
     we do what we can now to reduce the impact of mercury on 
     Maine's loon population and on other fish-eating wildlife. If 
     we wait until wildlife populations have significantly 
     declined, it will be too late.
       Maine Audubon has been a leader in working to reduce 
     mercury pollution and protect the health of Maine's people as 
     well as wildlife. Indeed Maine has made substantial progress 
     in developing legislation to curb the use of mercury-added 
     products as well as the collection of household hazardous 
     waste, for

[[Page 4631]]

     example. But these efforts, while valiant and very much 
     needed, do not address the largest source of mercury 
     pollution--emissions from power plants beyond Maine's 
     borders. The current EPA and Bush Administration proposal 
     falls far short of what is needed.
       The Clean Air Act requires that power plant mercury 
     emissions be cut by 90 percent by 2008 and ensures that these 
     reductions occur at each and every one of the nation's oil- 
     and coal-fired power plants, the country's largest industrial 
     source of mercury air emissions. In 2000, the EPA listed 
     power plants as a category for which MACT standards must be 
     developed. But one of the new proposals would ``de-list'' 
     power plants, without any of the public health and 
     environmental justifications mandated by the Clean Air Act. 
     Such de-listing is illegal.
       The EPA should uphold the law. Instead of setting a far 
     weaker standard--in effect treating power plants' mercury 
     emissions as non-hazardous air pollution--the EPA must abide 
     by its prior decision that power plants must be regulated 
     according to Maximum Achievable Control Technology (MACT) 
     levels.
       The EPA should continue to regulate mercury emissions from 
     power plants under the MACT approach required by Clean Air 
     Act for toxic pollutants, instead of issuing ``New Source 
     Performance Standards'' for mercury, which are far less 
     stringent. The EPA's own scientists two years ago concluded 
     that 90 percent reductions are possible using existing 
     technologies.
       The EPA must abandon the current proposal allowing the 
     trading of mercury pollution, which lets polluters continue 
     to poison our air and waters. Trading mercury emissions is 
     unacceptable from a public health and public policy 
     perspective, because it creates new local ``hot spots'' of 
     even mercury contamination--leaving some communities at risk 
     more than others.
       The EPA should not accept guidance from the Bush 
     Administration which would set rules for power plants that 
     give big energy special treatment--allowing them to put 6 to 
     7 times more mercury into the air than the law allows, and 
     giving them an extra decade to clean up. The EPA should hold 
     industry to the highest standard, and uphold--not weaken--the 
     provisions of the Clean Air Act.
       We respectfully ask that you convey to EPA Administrator 
     Leavitt our testimony, urging the EPA to improve protections 
     of human health and wildlife by strengthening, not weakening 
     rules regulating mercury emissions to the level that we know 
     is technologically feasible and morally imperative.
                                  ____



                                   Sierra Club, Maine Chapter,

                                      Portland, ME, March 1, 2004.
     Re Environmental Protection Agency Docket Center, Attention 
         Docket I.D. Number OAR-2002-0056.
     Why is the Bush Administration rewarding corporate polluters 
         at the expense of our children's health and safety?
       Thank you Congressman Allen, for holding a hearing on this 
     issue in Maine. My name is Maureen Drouin, I live in 
     Hallowell, Maine, and I am here representing the 5,000 Maine 
     members of the Sierra Club.
       The Maine Chapter of the Sierra Club calls on Administrator 
     Leavitt to throw out EPA's proposal to regulate mercury 
     emissions and instead craft a serious plan that adequately 
     protects American children from harmful mercury. 
     Specifically, we call on the EPA to require 90% reductions in 
     mercury emissions from ALL coal-fired power plants by 2008.
       Coal-fired power plants constitute the largest source of 
     industrial mercury emissions in the United States. This 
     mercury falls to earth through rain and snow and enters 
     lakes, rivers, and estuaries. Once there, it changes into its 
     most toxic form, methylmercury, and accumulates in fish 
     tissue. Americans are exposed to mercury primarily by eating 
     contaminated fish.
       Mercury poses a serious threat to Maine's families:
       As with many toxic pollutants, children are the most 
     susceptible to harm from mercury.
       New estimates by the EPA indicate that one in six U.S. 
     women of child-bearing age have mercury levels in their blood 
     high enough to put their babies at risk.
       During December 10-11, 2003, the FDA and the EPA issued a 
     draft joint warning to pregnant women, women who may become 
     pregnant, and nursing mothers against eating certain types of 
     mercury-laden fish.
       In 2001, the EPA estimated that if current clean air laws 
     were enforced in conjunction with the use of current 
     technology, mercury pollution would decrease by 90% by 2008.
       Why is the Bush Administration rewarding corporate 
     polluters at the expense of our children's health and safety?
       Congressman, you and Representative Waxman recently sent a 
     letter to EPA Administrator Leavitt requesting information 
     regarding a report in The Washington Post that portions of 
     EPA's latest mercury air pollution control proposal may have 
     been ``copied word-for-word from industry lobbying 
     materials.''
       You pointed out that ``Specifically, it appears that EPA 
     has proposed a regulatory approach to mercury air pollution 
     that in part is copied word-for-word from memos prepared by 
     the law firm Latham & Watkins, which represents some of the 
     largest polluters in the country.''
       Both Jeffrey Holmstead, EPA's Assistant Administrator for 
     Air and Radiation, and William Wehrum, Mr. Holmstead's chief 
     counsel, worked for Latham & Watkins prior to assuming their 
     positions at EPA where they have played key roles in the 
     mercury pollution rule-making process.
       According to the Center for Responsive Politics, the Energy 
     Industry, which would be affected by these rules, gave nearly 
     $50 million in campaign contributions to the Republican Party 
     during the 2000 election cycle. Of that amount, $2.9 million 
     went directly to the Bush-Cheney campaign.
       Perhaps this is why the Bush Administration is rewarding 
     corporate polluters at the expense of our children's health 
     and safety.
       Last spring, I went fly-fishing with a few friends at 
     Little Lyford Pond Camps in T7 R10. In the heart of the 100-
     mile wilderness of Maine, the ponds there are remote and 
     pristine and constitute the headwaters of the West Branch of 
     the Pleasant River. The brook trout fisheries there date back 
     10,000 years to the retreat of the last glacier. I thought 
     about how rewarding it would be to catch one of these 
     primeval fish and cook it for dinner. But even far away in T7 
     R10, the fish are contaminated by upwind pollution, and 
     Mainers, especially women and children, are advised to limit 
     their fish consumption.
       Maine is one of 19 states that have issued statewide fish 
     advisories for all of their inland freshwater lakes and 
     rivers.
       We have the solutions to reduce mercury pollution now and 
     we should implement them immediately to protect our 
     communities.
       Thank you again for holding this hearing and for the work 
     you are doing to protect Maine's children by decreasing 
     mercury pollution.
                                  ____


 Testimony of Ann Brewster Weeks (Delivered by Jonathan Lewis), Clean 
                       Air Task Force, Boston, MA

       (Before the U.S. Environmental Protection Agency Regarding 
     Proposed National Emission Standards for Hazardous Air 
     Pollutants; and in the alternative, Proposed Standards of 
     Performance for New and Existing Sources: Electric Utility 
     Steam Generating Units, 69 Fed. Reg. 4652 (January 30, 2004), 
     Docket No. OAR-2003-0056.)
       Good afternoon. For the record, my name is Jonathan F. 
     Lewis, and I am an attorney with the Clean Air Task Force. I 
     am appearing today to provide the testimony of Ann Weeks, 
     CATF's Litigation Director. Ms. Weeks was an alternate member 
     of EPA's Electric Steam Generating Units MACT Rulemaking 
     Working Group of stakeholders from industry, environmental 
     organizations, and state governments, which offered the 
     Agency a range of recommendations for the development of a 
     MACT standard for EGUs, in the Fall of 2003.
       Now the Agency proposes both a weak MACT standard and a 
     radically different alternative approach to the regulation of 
     power plant hazardous air pollutants. EPA's alternative 
     approach not only is radically different than the approach 
     considered by EPA and the stakeholders in the Working Group, 
     it is radically different than the approach mandated by the 
     Clean Air Act. Martha Keating, the CATF representative to the 
     Working Group, is presenting today in North Carolina oral 
     testimony on the MACT alternative proposed by the Agency in 
     this rulemaking package. I will therefore limit my remarks to 
     the inadequacies, both legal and from a public policy 
     perspective, of the alternative New Source Performance 
     Standards and cap and trade approach contained in the 
     proposal.
       EPA first listed mercury as an air toxic in 1971. The 
     public health effects of this toxic are not just coming to 
     light, we have known for over a century about neurological 
     disorders stemming from exposure to high levels of mercury in 
     the environment. Each year, the science improves, and we 
     learn more, for example, about how eating mercury 
     contaminated fish leads to children's delayed language 
     development, impaired memory and vision, problems processing 
     information and impaired fine motor coordination.
       The Center for Disease Control and Prevention has recently 
     noted that 1 in 12 women of childbearing years in the United 
     States have unsafe levels of mercury in their blood. EPA's 
     own Federal Advisory Committee on Children's Health 
     Protection has noted its concern that this proposed rule 
     package does not go as far as possible towards reducing 
     emissions of mercury from the electric utility industry.
       Existing coal-fired power plants are the largest 
     uncontrolled industrial source of mercury in the United 
     States today. Congress recognized this when it drafted the 
     Clean Air Act Amendments of 1990, when it listed mercury 
     under section 112, and demanded to be kept in the loop as 
     your Agency made its determination whether to regulate 
     hazardous air pollutant emissions from the electric 
     generating industry.
       EPA now seeks to administratively rewrite section 112 of 
     the Act in an effort to try to find a way to treat mercury 
     differently from the other 187 air toxics listed in the Act. 
     Rather than regulating the power industry

[[Page 4632]]

     under the ``Maximum Achievable Control Technology'' approach 
     required by the Act, EPA instead proposes to finalize New 
     Source Performance Standards under section 111, for mercury 
     emitted by new coal-fired power plants, and a cap and trade 
     system including caps of 34 tons of mercury by 2010 and 15 
     tons in 2018.
       This aspect of your proposal is completely without merit.
       First, an NSPS approach to regulating hazardous air 
     pollutants emitted by the utility industry is simply not 
     authorized by the Clean Air Act. Congress revised section 112 
     in 1990 in an effort to promote faster regulation of 
     hazardous air toxics, through the identification and the MACT 
     regulation of the industrial categories of most concern. EPA 
     listed coal- and oil-fired power plants under section 112(c) 
     in 2000, which triggered the requirement to issue MACT 
     standards for all hazardous air pollutants emitted by the 
     industry. Congress did not direct the use of section 111 for 
     utility industry HAP air emissions, as it did for solid waste 
     combustors in Clean Air Act section 129. If Congress had 
     meant to grant such authority to the Agency, it clearly knew 
     how. It chose not to do so.
       Second, your attempt to ``de-list'' the utility industry in 
     order to advance your section 111 proposal does not meet the 
     express terms of the Clean Air Act, and in any event is 
     unsupportable on the merits. Section 112(c)(9) of the Act 
     requires that a listed industrial category can be deleted 
     from the 112(c) list only if certain specific statutory 
     criteria are met. Your Agency has not even attempted to 
     satisfy these criteria. For toxics that ``may result in 
     cancer in humans,'' as is the case with nickel from oil-fired 
     units as recognized by the Agency in 1998 and 2000, the 
     Administrator must determine that ``no source in the category 
     . . . emits such hazardous air pollutants in quantities which 
     may cause a lifetime risk of cancer greater than one in one 
     million to the individual in the population who is most 
     exposed to emissions of such pollutants from the source.'' 
     For air toxics like mercury, the Administrator must determine 
     ``that emissions from no source in the category or 
     subcategory concerned . . . exceed a level which is adequate 
     to protect public health with an ample margin of safety and 
     no adverse environmental effect will result from emissions 
     from any source.'' Neither of these determinations is 
     supportable on the record before the Agency, as we will point 
     out in our detailed comments.
       Finally the proposed cap and trade approach is not 
     supported by the Act and represents very bad public policy. 
     The tonnage caps are transparently based on the legislative 
     targets in the Administrations Clear Skies approach to 
     utility regulation, and do not go near far enough or fast 
     enough--either to adequately protect public health, or to 
     satisfy the requirements set out by Congress to govern the 
     regulation of hazardous air pollutants.
       The Agency asserts broad authority under section 111 to 
     establish a cap and trade program for listed hazardous air 
     pollutants, although no such authority is articulated in the 
     statute. Resorting to the tired and long discredited argument 
     that since it is not expressly prohibited, an action must be 
     allowable, the Agency severely overreaches in this proposal.
       Furthermore, while the Agency asserts that a 34 ton 2010 
     target is based on what can and must be achieved to control 
     other conventional pollutants for the IAQR, the Act requires 
     far more than this level of effort for the control of a 
     hazardous air pollutant. Even if EPA attempted to justify 
     this cap based on the results of its MACT approach, the MACT 
     floor emissions levels EPA has conjured up in this proposal 
     to support a 34 ton emissions level are themselves 
     fundamentally flawed, legally and technically, as Ms. Keating 
     is testifying in North Carolina today.
       Finally, even if it were authorized by the Act, the 
     Administration's approach in the proposed cap and trade 
     program is just abysmal public policy. Despite the fact that 
     60% of the mercury emitted by U.S. power plants is deposited 
     locally or regionally, the proposal would do absolutely 
     nothing to avoid the creation of toxic hot spots--geographic 
     areas that will experience even more mercury contamination 
     than at present, because local sources are permitted to trade 
     away the requirement to reduce their emissions levels. The 
     caps are set at ``no action'' levels, furthermore: on the 
     final pages of the proposal, the Agency admits that meeting 
     the mercury caps will require very little (if any) effort 
     beyond controlling for conventional pollutants. ``Look,'' the 
     Administration seems to be saying to the industry--``just 
     control your conventional pollutants a little further, and we 
     will give you a hall pass on mercury.'' This approach is 
     taken despite ample evidence, well-known to the Agency, that 
     much deeper cuts in mercury and other hazardous air 
     pollutants are achievable cost-effectively from the industry 
     in the short term. It is taken despite the clear requirements 
     of the Clean Air Act that a listed industry must be required 
     to make the maximum reductions achievable, and to do so 
     within 3, or at most 4 years of a final rule.
       EPA's NSPS cap and trade approach to EGU toxics is simply 
     unacceptable. It is unacceptable legally, and unacceptable 
     from a public health perspective.
                                  ____


Testimony of Conrad Schneider, Advocacy Director, Clean Air Task Force, 
                 Hearing on EPA's Proposed Mercury Rule

       Good afternoon. My name is Conrad Schneider of Brunswick, 
     Maine. I am the Advocacy Director of the Clean Air Task 
     Force. CATF is a Boston-based, national environmental 
     advocacy organization dedicated to restoring clean air and 
     healthy environments through scientific research, public 
     education, and legal advocacy. Our primary mission involves 
     cleaning up the nation's grandfathered power plants.
       You know, school vacation week in Maine was two weeks ago 
     and our family went to Sanibel Island, Florida--our first 
     ``sun and fun'' vacation ever. While down there, I went 
     saltwater fly-fishing for the first time. This June I am 
     going with some buddies to fish Grand Lake stream here in 
     Maine. Although Sanibel was saltwater and Grand Lake stream 
     will be fresh, there is a common denominator here. Both 
     Florida and Maine warn us to limit our consumption of the 
     fish I catch. While I was trying to catch a trophy sport fish 
     in Florida, I managed to catch only a flounder. However, I 
     tossed it back because my wife's sister, who is four months 
     pregnant, and her husband were with us and pregnant women are 
     warned to eat no fish because the mercury contamination 
     threatens their fetuses. In fact, while it was bad enough 
     that she couldn't drink a pina colada in Florida, she 
     couldn't eat any fish either! That'll be true when she visits 
     us in Maine this summer too. Maybe you think this is a small 
     matter. But consider that in Maine, recreational fishing 
     contributes $250 million to the economy here each year.
       I would like to thank Rep. Tom Allen for his leadership in 
     holding this hearing; the first of what may be many more such 
     hearings around the country by concerned members of Congress 
     to hear from citizens about the deficiencies of the Bush 
     Administration's power plant mercury proposal. We share Rep. 
     Allen's view that it is outrageous that on an issue of such 
     critical importance to our people, U.S. EPA chose not to 
     schedule one hearing on this rule in New England.
       The people of our region have always looked to the sea and 
     our inland water bodies--for commerce, for knowledge, for 
     recreation and, perhaps most importantly, for food. Ocean and 
     freshwater fish have been a staple of the New England diet 
     since the first human settlements here.
       But we're here today because that food source is under 
     threat--from mercury pollution. Due to eating mercury in 
     contaminated ocean fish and fresh water fish, one in six 
     women of childbearing age in the United States have mercury 
     levels above what EPA considers safe. That's nearly five 
     million women nationally with elevated mercury levels in 
     their blood. Because mercury travels through the placenta and 
     breast milk that also means more than 600,000 children born 
     each year are at risk for mercury's toxic effects.
       And those effects are serious. They include poor attention 
     span and language development, impaired memory and vision, 
     problems processing information, and impaired visual and fine 
     motor coordination. Deborah Rice, formerly with EPA, is a 
     renowned expert on the effects of toxic metals on brain 
     development that Maine DEP was fortunate to hire. Dr. Rice 
     last year warned at a U.S. Senate hearing that the threat 
     posed by mercury is comparable to that of lead. We have too 
     many children today who struggle to keep up in school and who 
     require remedial classes or special education. And those of 
     you who have had even passing involvement with our public 
     schools know that the cost of these types of programs present 
     a major fiscal challenge. Adults, too, are at risk. Elevated 
     mercury levels are linked to fertility issues, high blood 
     pressure, and heart problems.
       As a result, children and women of childbearing age not 
     just in Maine and Florida are being advised to restrict their 
     intake of certain fish. Fourty-four states have issued 
     advisories limiting consumption of fish from certain water 
     bodies--17 states for every inland water body. Maine, for 
     example, has an advisory covering every freshwater lake, 
     stream, pond, and river. Species with specific consumption 
     advice include our famous brook trout and landlocked salmon. 
     For our coastal waters, Maine warns about consumption of blue 
     fish and striped bass. Ten states have issued advisories on 
     canned tuna. The FDA has told pregnant women not to eat 
     swordfish, another staple of the North Atlantic fishery. 
     Later this week, FDA is expected to revise its consumption 
     warning for the first time to include tuna. It is ironic that 
     at the very time concerns over the health effects of mercury 
     are growing, EPA is proposing to weaken the requirements for 
     mercury reduction from power plants.
       There are many sources of mercury in the environment but 
     most of it comes from human activity such as burning mercury-
     containing coal for electricity, mining, and improper 
     disposal of mercury-containing products. Through these 
     releases, we've contaminated a large part of our region's and 
     nation's food supply. This is simply unacceptable.

[[Page 4633]]

       So what's to be done? The answers are not simple or quick, 
     but we've already made a start. About 70% of the world's new 
     annual mercury releases are from coal combustion and waste 
     incineration.
       Fortunately, we have the technology to reduce coal plant 
     mercury emissions nationally by 90% within the next decade. 
     The State of Connecticut has adopted this target for its 
     plants. Massachusetts, New Jersey, Wisconsin, and New 
     Hampshire are considering similar targets.
       But air pollution travels, so the states can't act alone. 
     We need the federal government to act. We're aggressively 
     controlling waste incineration in the U.S. by requiring 
     incinerators to reduce their mercury emissions by 90%. But 
     the biggest fish to catch--coal-fired power plants--has yet 
     to be caught. Coal plants account for fully one third of U.S. 
     mercury emissions and, amazingly, are completely unregulated.
       In its proposed rule, U.S. EPA again proposes to let power 
     plants off the hook. The proposed emissions standards are 
     transparently based on the legislative targets in the 
     Administration's so-called ``Clear Skies'' proposal, which is 
     a broad attempt to rollback the requirements and deadlines of 
     the Clean Air Act--in large part the work of Maine Senators 
     Muskie and Mitchell. The Bush Administration proposal does 
     not go far enough or fast enough--either to adequately 
     protect public health or satisfy the requirements set out by 
     Congress.
       Frankly, I should not even dignify what EPA has issued as a 
     proposed rule. It is so blatantly illegal, in the laxity of 
     the emissions standards and deadlines and in the lack of 
     legal authority for its misguided emissions trading scheme 
     that the Bush Administration knows full well that legal 
     challenges by the coal industry will be successful and leave 
     us with no rule at all. Which is just what they want. The 
     environmental community had to sue EPA just to issue a rule. 
     What they've proposed is just ``smoke and mirrors'' to 
     satisfy the court that they've proposed something on time.
       This cynical ploy should come as no surprise when you 
     realize that my organization broke a story in the Washington 
     Post recently that the language of the Bush proposal includes 
     over a dozen examples where whole paragraphs from industry 
     memos were lifted verbatim and inserted in the rule. Either 
     that, or industry lawyers themselves were actually writing 
     the rules for EPA.
       Back in the Year 2001, in the first year of the Bush 
     Administration, EPA signaled that it would issue a rule 
     resulting in a 90 percent reduction in mercury emissions--
     from 48 tons a year down to 5 tons--per year by 2008. That is 
     what the Clean Air Act Amendments require. EPA now proposes a 
     rule, which if implemented, would still allow 34 tons of 
     mercury emissions per year in 2008 and 15 tons in 2018--
     giving us a decade more of delay while leaving three times as 
     much mercury in the environment as what is achievable with 
     today's control technology.
       We call on U.S. EPA to return to its original compass 
     bearing, set the hook, and reel in the ``Big One'' by 
     dropping power plant mercury by 90 percent within this 
     decade. That isn't likely to happen. So, ultimately, Rep. 
     Allen, it may be left to you to finish the job Senator 
     Mitchell thought he had done in Clean Air Act Amendments of 
     1990 (which was signed by the first President Bush)--
     requiring the U.S. power sector to do its full share to solve 
     the problem of mercury contamination.
                                  ____


  Testimony of Debra Davidson, Maine Chapter--Izaak Walton League of 
                      America, Livermore Falls, ME

       (Proposed National Emission Standards for Hazardous 
     Pollutants; and, in the Alternative, Proposed Standards of 
     Performance for New and Existing Stationary Sources: Electric 
     Utility Steam Generating Units; Docket ID No. OAR-2002-0056, 
     69 Fed. Reg. 4652 (January 30, 2004).)
       I would like to thank Tom Allen for giving Maine the 
     opportunity to voice our concerns about hazardous air 
     pollutant emissions from power plants, in particular mercury 
     emissions.
       My name is Debi Davidson and I am here today as a 
     representative of the Maine Chapter of the Izaak Walton 
     League of America. We are a national organization of 50,000 
     anglers, hunters and conservationists committed to 
     responsible environmental stewardship.
       I have attached a letter to my testimony, signed by the 
     directors of midwest sportsmen's organizations including the 
     Izaak Walton League of America, and representing over 400,000 
     people in Minnesota, Wisconsin, Michigan, Iowa, Illinois, 
     Indiana, and Ohio asking the environmental Protection Agency 
     to strengthen their proposed rule.
       Mercury contamination threatens Maine's fishing heritage. 
     Residents in Maine share a long tradition of outdoor 
     recreation centering on our lakes, ponds and rivers. We are a 
     region of camp owners, fishermen, hunters, and outdoor 
     enthusiasts whose lakes and woods represent a large part of 
     who we are. Unless we eliminate mercury pollution from our 
     lakes, ponds, streams and rivers, we cannot safely eat our 
     fish if we choose to. Even if catch and release is one way to 
     enjoy fishing, we should not have to limit ourselves to this 
     method. The effects of mercury pollution on an ecosystem very 
     much affects the quality of a total fishing experience. 
     Warnings about eating fish due to mercury contamination very 
     much detracts from this experience.
       Mercury contamination threatens Maine's economy. While 
     fishing in Maine is clearly a long-standing tradition, it is 
     also big business. Figures show that recreational anglers who 
     fish in our state spend more than $250 million dollars 
     annually. This includes everything from fishing lures to 
     special clothing to food, lodging and transportation for the 
     trips we take. Economically, Maine cannot afford a 
     contaminated fishery.
       We can do better. Mercury contamination of fish in our 
     lakes and rivers is a serious concern for our members and 
     their families. The current EPA proposal falls far short of 
     what is needed to address this threat. EPA's mercury MACT 
     proposal fails to accomplish what is mandated by the Clean 
     Air Act for mercury reduction. And the alternative New Source 
     Performance Standard proposal is a poor substitute to an 
     adequate mercury MACT standard.
       We believe that the proposed mercury MACT rule should 
     require emissions reductions from all coal-fired power plants 
     by 2008 equivalent to the level that can be achieved by the 
     most up-to date pollution controls and resulting in at least 
     a 90 percent reduction in power plant mercury emissions 
     nationwide. The technology to achieve these reductions is 
     being developed and installed in Midwest plants right now.
       The EPA should revise the mercury MALT proposal to meet the 
     Clean Air Act's obligation to require the most up-to-date 
     pollution controls on all power plants. The EPA should also 
     reject the alternative New Source Performance Standard 
     proposal and all mercury trading proposals.
       The Maine Chapter of the Izaak Walton League asks that the 
     EPA adopt a rule that maximizes the protection of human 
     health and our fisheries by regulating mercury emissions to 
     the level that we know is technologically feasible and to 
     please do so now.
       Thank you.

                                                February 25, 2004.
     Re proposed National Emission Standards for Hazardous 
         Pollutants; and, in the Alternative, Proposed Standards 
         of Performance for New and Existing Stationary Sources: 
         Electric Utility Steam Generating Units; Docket ID No. 
         OAR-2002-0056, 69 Fed. Reg. 4652. (January 30, 2004).
     Administrator Mike Leavitt,
     U.S. Environmental Protection Agency, EPA Docket Center (Air 
         Docket), U.S. EPA West (6102T), Washington, DC.
       Dear Administrator Leavitt: Sporting groups from Indiana, 
     Illinois, Michigan, Minnesota, Ohio, and Wisconsin have 
     worked for years to reduce mercury pollution and protect the 
     health of our families. Today, we write to respectfully 
     express our concerns over the proposed rule by the U.S. 
     Environmental Protection Agency (EPA) to control mercury 
     emissions from coal-fired power plants.
       Fishing has been a tradition in the Midwest for 
     generations, and sporting groups have been conserving fish 
     habitat for decades. It has been an important part of family 
     life and a bond between parents and children. Fishing is also 
     important for our businesses, with sport-fishing adding $5 
     billion to our states' economies annually.
       Unfortunately, all of our states are under statewide fish 
     consumption advisories due to widespread mercury 
     contamination. Catch and release is not just a choice 
     anymore, it is a practice we must observe to safeguard the 
     health of our children and grandchildren.
       Power plants are one of the largest sources of mercury 
     pollution in the Midwest. Twenty-three percent of the 
     nation's coal-fired power plant mercury emissions come from 
     the six states of Indiana, Illinois, Michigan, Minnesota, 
     Ohio and Wisconsin. In order for anglers to once again catch 
     fish that are safe to eat, it is critical that we 
     significantly reduce emissions from coal plants in these 
     states.
       Mercury contamination of fish in our lakes and rivers is a 
     serious concern for our members and their families, but the 
     current proposal falls far short of what is needed to address 
     this threat. We know that existing plants using the best 
     modern technology can achieve mercury reductions of up to 90 
     percent. The technology to achieve these reductions is being 
     developed and installed in plants right here in the Midwest. 
     We urge the EPA to adequately address our mercury problem by 
     greatly strengthening the proposed mercury rule under section 
     112 of the Clean Air Act for plants burning all types of 
     coal. We further urge the agency to reject alternative New 
     Source Performance Rule in place of a MACT standard.


                Mercury and Fish Consumption Advisories

       The entire Midwest is affected by mercury contamination to 
     such a large extent that state health departments have issued 
     fish consumption advisories specifically for mercury. 
     Indiana, Illinois, Minnesota, Michigan, Ohio and Wisconsin 
     all have blanket statewide fish consumption advisories for 
     mercury. In addition, Lake Superior and Lake Michigan have 
     fish consumption advisories because of mercury contamination.

[[Page 4634]]

       Relying on fish consumption advisories, however, will not 
     solve the problem. We must reduce the contamination at its 
     source. Surveys of anglers in the Northeast, Southeast and 
     Great Lakes have revealed that many anglers may have heard 
     about the advisories, but anglers with lower income levels 
     fish more often, eat more fish they catch as part of their 
     diet, and are generally less aware of advisories than other 
     anglers. In addition, relying only on advisories to address 
     the mercury problem leaves a legacy of contaminated fish our 
     future generations.


             Safe-to-eat Fish is Important to Our Families

       Women of childbearing age and pregnant women are the most 
     important members of the population in terms of mercury 
     exposure. Methylmercury interferes with the development and 
     function of the nervous system. It poses the greatest hazard 
     to the developing fetus. This is the reason most fish 
     consumption advisories warn pregnant women to limit their 
     fish consumption or avoid fish altogether. However, infants 
     and children are also at high risk. Infants may ingest methyl 
     mercury through nursing and children are exposed through 
     their diet. Children and infants are more sensitive to the 
     effects of mercury because their nervous systems continue to 
     develop until about age 14.
       Mercury threatens the health of older fishermen, too. New 
     evidence suggests exposure to methylmercury can adversely 
     impact blood pressure regulation, heart-rate variability, and 
     heart disease.


            Fishing is an Important Tradition in the Midwest

       Residents in the Midwest share a rich tradition of outdoor 
     recreation centering on our lakes and rivers. We are a region 
     of cabin owners, fishermen, hunters, and outdoor enthusiasts 
     whose lakes and woods are as much a part of who we are as our 
     agriculture, snow and fall foliage. If there is one thing we 
     love as much as catching fish, it is eating fish. The fish 
     fry and shore lunch are beloved traditions in the Midwest.
       The ability to pass our traditions on to future generations 
     is threatened by mercury contamination. Unless we eliminate 
     mercury pollution from our lakes, streams and rivers, our 
     children's children may not be able to safely eat fresh bass, 
     walleye, or northern pike--the fish most heavily 
     contaminated.


                  Fishing is Important to Our Economy

       Fishing in our states is big business. With the Great 
     Lakes, cold-water streams, and tens of thousands of lakes, it 
     is no wonder fishing is so popular. Sportfish like largemouth 
     bass, smallmouth bass, yellow perch, walleye, northern pike 
     and muskie are just a few of many sought-after species. 
     According to the U.S. Fish and Wildlife Service, more than 
     7.87 million anglers fish in our states and spend more than 
     $5 billion annually. This includes everything from fishing 
     lures to special clothing to food, lodging and transportation 
     for the trips we take. Our region simply cannot afford a 
     contaminated fishery.
       But the value of fishing cannot just be measured in 
     dollars. Although less tangible and difficult to quantify, 
     the effects of mercury pollution on an ecosystem can affect 
     the quality of the fishing experience. A survey of anglers 
     underscores the importance of the social aspects of fishing. 
     Some of the main reasons that people fish are to relax, to 
     spend time with family and friends, and to be close to 
     nature. Warnings about eating fish due to mercury 
     contamination detract from this experience. Reducing 
     environmental contaminants like mercury must be a goal so we 
     can continue to conserve and protect this resource.


              Why is Mercury From Power Plants a Problem?

       Goal-fired electric power plants remain the largest 
     uncontrolled source of mercury in the U.S. Each year, 
     uncontrolled coal-fired power plants in the U.S. emit nearly 
     50 tons of mercury to the air in addition to an estimated 33 
     tons disposed of in waste left over after power plants burn 
     coal. EPA estimates that coal-fired power plants alone 
     account for 42 percent of all U.S. mercury air emissions. 
     Municipal, medical and hazardous waste combustors--which are 
     stringently regulated by the EPA--account for about ten 
     percent of U.S. air emissions. Industrial boilers are 
     responsible for ten percent and chlorine manufacturers for 
     six percent. The remaining third is made up of incidental use 
     and products containing mercury.
       Existing coal-fired power plants not only remain 
     uncontrolled, but if left virtually unregulated, over time 
     they will account for a larger and larger share of mercury 
     emissions, as other source categories meet their obligations 
     to reduce their mercury releases.
       Coal-fired power plants are found throughout the Midwest. 
     According to the EPA's Toxics Release Inventory (TRI), coal-
     fired power plants in Minnesota, Wisconsin, Michigan, 
     Illinois, Indiana and Ohio together account for 23 percent of 
     mercury emissions from all coal-fired power plants in the 
     U.S. Because mercury does not degrade when released and 
     because the typical coal plant operates for at least 50 
     years, the accumulation of mercury released by these plants 
     makes them the most widespread, large-scale, long-lived 
     generators of mercury in the U.S.
       Mercury is emitted from the stacks of coal-fired power 
     plants, and although it can remain in the atmosphere for up 
     to one year, a great deal of mercury is deposited on land and 
     water bodies within 50 miles of the plant. In addition to 
     being a significant concern in the areas closest to the 
     plants, the deposition and reemission makes mercury pollution 
     a regional and global problem. However, we cannot wait for 
     international cooperation before we start addressing the 
     emission and deposition problems that occur in the United 
     States.
       After mercury is deposited from the atmosphere, its 
     greatest adverse impact occurs in the aquatic ecosystem. In a 
     series of chemical reactions, bacteria in the sediments can 
     convert mercury to methylmercury. Methylmercury is a form of 
     mercury that is especially toxic to humans and wildlife. Fish 
     absorb methylmercury from the water as it passes over their 
     gills and as they feed on other organisms. As larger fish eat 
     smaller fish, methylmercury concentrations increase in the 
     bigger fish, a process known as bioaccumulation. 
     Consequently, larger predator fish usually have higher 
     concentrations of methylmercury from eating smaller 
     contaminated fish. Humans, birds and other wildlife that eat 
     fish are exposed to mercury in this way.


                    EPA MACT Proposal is Inadequate

       EPA's mercury MACT proposal fails to accomplish what is 
     mandated by the Clean Air Act for mercury reduction. Further, 
     the alternative New Source Performance Standard proposal is a 
     poor substitute to an adequate mercury MACT standard.
       We contend that the proposed mercury MACT rule should 
     require emissions reductions from all coal-fired power plants 
     by 2008 that are equivalent to the level that can be achieved 
     by the most up-to date pollution controls. Based on data 
     collected by the EPA, that would result in at least a 90 
     percent reduction in power plant mercury emissions 
     nationwide.
       By contrast, as proposed, EPA's MACT rule will only require 
     an overall 30 percent cut in emissions, and that not until 
     2010 at the earliest. In addition, most of the reductions 
     will come from power plants that burn eastern bituminous 
     coal, while requiring very little emission reductions from 
     power plants that burn western subbituminous coal. As a 
     result, states like Minnesota, Wisconsin, Michigan, and 
     Illinois, whose plants use a significant amount of western 
     coal will see even more limited mercury reductions. Plants in 
     Ohio and Indiana that use mostly eastern bituminous coal 
     would have an incentive to switch to western coal. This could 
     have the perverse effect of potentially increasing local 
     emissions of mercury from plants in Ohio and Indiana. It 
     would also create further strain on the coal industry in the 
     eastern U.S.
       The proposed alternative New Source Performance Standard 
     (NSPS) rule would eventually require deeper reductions, but 
     not for more than a decade and not to the levels mandated 
     under a MALT approach. The NSPS alternative also creates 
     different standards for different coal types and allows for 
     some electric utilities to avoid making any mercury 
     reductions, by allowing mercury trading. Treating coal types 
     differently and allowing for trading raises the risk of 
     increasing local emissions, exacerbating the problem of 
     existing mercury hotspots, and creating new mercury hot spots 
     in the Midwest.
       The EPA should revise the mercury MACT to meet the Act's 
     obligation to require the most up-to-date pollution controls 
     on all power plants--regardless of the type of coal that they 
     use--and by so doing achieve stringent and rapid reductions 
     in emissions of this toxic pollutant. The EPA should also 
     reject the alternative NSPS and all mercury trading 
     proposals. These alternatives would cause additional mercury 
     related adverse health risks through the promotion of 
     pollution trading, and would allow unacceptable amounts of 
     mercury pollution to continue.
       We respectfully urge the EPA to adopt a rule that maximizes 
     the protection of human health and our fisheries by 
     regulating mercury--emissions to the level that we know is 
     technologically feasible and to do so quickly.
           Sincerely,
       Jim Bahl, President, Minnesota Conservation Federation, St. 
     Paul, Minnesota. 3,000 members.
       Danny. J. Blandford, Conservation Director, Indiana BASS 
     Federation, Martinsville, Indiana. 3,000 members.
       Jim Doss, President, Ohio BASS Federation, Gallipolis, 
     Ohio. 1,800 members.
       Paul Hansen, Exccutive Director, Izaak Walton League of 
     America, St. Paul Minnesota. 13,000 members in Midwest states 
     of MN, WI, MI, IL, IN and OH; 50,000 members nationwide.
       Mike Hofmann, President, Wisconsin State BASS Federation, 
     Weston, Wisconsin. 1100 members.
       Brad Maurer, President, Ohio Smallmouth Alliance, Bexley, 
     Ohio. 160 members.
       Edward L. Michael, Chairman, Illinois Council of Trout 
     Unlimited, Oak Brook, Illinois. 3,000 members.
       Larry Mitchell Sr., President, League of Ohio Sportsmen, 
     Columbus, Ohio. LOOS and its member clubs represent about 
     200,000 Ohio sportsmen and women.

[[Page 4635]]

       George Meyer, Executive Director, Wisconsin Wildlife 
     Federation, Madison, Wisconsin. Representing 83 Wisconsin 
     hunting, fishing, and trapping organizations.
       Kim Olson, New Ulm Area Sport Fishermen, New Ulm, 
     Minnesota. 150 members.
       Bill Pielsticker, Chairman, Wisconsin Council of Trout 
     Unlimited, Madison, Wisconsin. 4000 members.
       Russ Ruland, DNR Liaison & Past President, Muskellunge Club 
     of Wisconsin, Hales Corners, Wisconsin. 130 members.
       Scott Sparlin, Executive Director, Coalition for a Clean 
     Minnesota River, New Ulm, Minnesota. 600 members.
       Vern Wagner, Conservation Director, Minnesota BASS 
     Federation, Champlin, Minnesota. 14,000 B.A.S.S. members in 
     Minnesota and 650 enrolled in the Minnesota B.A.S.S. 
     Federation.
       Jay Walton, Iowa BASS Federation Conservation Director 
     (4,000 member affiliation), Iowa Conservation Alliance Board 
     (50,000 member affiliation), Ames, Iowa.
       Sam Washington, Executive Director, Michigan United 
     Conservation Clubs, East Lansing, Michigan. A network of 
     nearly 100,000 men and women and over 500 affiliated 
     conservation and outdoor recreation clubs.
       Paula Yeager, Executive Director, Indiana Wildlife 
     Federation, Carmel, Indiana. 20,000 members.

[[Page 4636]]

     
     


[[Page 4637]]



[[Page 4638]]



[[Page 4639]]



[[Page 4640]]

  Testimony: Prof. Ellen K. Silbergeld--EPA Hearings on Regulation of 
       Utility Mercury Emissions, Philadelphia, February 25, 2004

       I am Ellen K. Silbergeld, Professor of Environmental Health 
     Sciences and Epidemiology at the Bloomberg School of Public 
     Health, Johns Hopkins University, in Baltimore, Maryland. I 
     am appearing without compensation as a private citizen, at 
     the invitation of the Sierra Club, and my testimony is based 
     upon my research experience on the toxicology and 
     epidemiology of mercury compounds, as well as my experience 
     in regulatory risk assessment and risk management, including 
     the application of ``cap and trade'' mechanisms to achieve 
     goals in reducing air pollution. My background and training 
     are outlined in the attached documentation; my PhD is in 
     environmental engineering sciences from Johns Hopkins School 
     of Engineering, and I have held research positions with NIH 
     and the University of Maryland Medical School. I have served 
     as a member of EPA's Science Advisory Board as well as an 
     advisor to the Department of Energy, the CDC, the World 
     Health Organization, the World Bank, the Pan American Health 
     Organization, the National Toxicology Program, the National 
     Academy of Sciences, and many other international, national, 
     and state commissions and expert committees. I was a member 
     of EPA and NIH committees evaluating the sources and risks of 
     mercury exposures and I participated by invitation in the 
     deliberations of the NRC Committee on the Toxicology of 
     Methyl Mercury. I am currently directing funded research in 
     my laboratory on mercury compounds, studying exposures and 
     mechanisms of both organomercury compounds (including 
     methylmercury and thimerosal) and inorganic mercury. Last 
     year we published two major research papers: an 
     epidemiological study reporting that adults may be as 
     sensitive as young children to the neurotoxic effects of 
     methylmercury exposure, via fish consumption; and one of the 
     first studies to show that very low doses of mercury can 
     accelerate autoimmune disease, in an animal model of lupus.
       In this testimony I want to make three points, relevant to 
     important aspects of your deliberations: (1) mercury 
     compounds must be considered toxic air pollutants; (2) 
     exposures to mercury compounds are a serious and significant 
     health concern for millions of Americans; and (3) it is 
     dangerously inappropriate to propose a ``cap and trade'' 
     policy for controlling the major remaining anthropogenic 
     sources of mercury in the US.
       Mercury compounds are toxic air pollutants. Mercury 
     compounds are widely recognized as one of the most serious 
     public health risks world wide, particularly for children 
     (see WHO 1990 report; NRC 2000 report). Mercury compounds can 
     affect many organ systems, including the nervous system, 
     kidney, heart, and immune systems. However, we have not fully 
     appreciated the range and severity of mercury toxicity. 
     Public health policy, including the risk assessments 
     conducted by federal and state agencies, has appropriately 
     focused on the developing nervous system as a very sensitive 
     target for irreversible toxic damage. However, mercury has 
     multiple effects of many organ systems in addition to the 
     developing brain. We recently published an epidemiologic 
     study indicating that adults exposed to methyl mercury via 
     fish are also at risk for neurocognitive deficits, with a 
     dose:response relationship very similar to that found for 
     children exposed prenatally (Yokoo et al 2003):

   TABLE 3.--REGRESSION COEFFICIENTS b OF ADULT'S HAIR MERCURY CONCENTRATION AS A PREDICTOR OF NEUROBEHAVIORAL
                                                  TRUST RESULTS
----------------------------------------------------------------------------------------------------------------
                       Test                              b*           95% C1           b**           95% C1
----------------------------------------------------------------------------------------------------------------
Fine Motor Speed..................................        -3.40       -5.80;-1.00        -3.20       -5.40;-1.00
Digit Span........................................        -0.14     -0.29;--0.001        -0.15      -0.29; 0.003
Digit Span backward...............................        -0.09     -0.18;--0.001        -0.09      -0.19;-0.009
Digit Symbol......................................        -1.21        -2.8;-0.33        -0.54         -1.2;0.16
Easy Learning.....................................        -0.37       -0.70;-0.04        -0.34       -0.64;-0.04
Difficult Learning................................        -0.21      -0.42;-0.001        -0.15       -0.34;-0.03
Logical Memory first story........................        -0.29       -0.51;-0.09        -0.27       -0.49;-0.06
Errors of commission..............................        -1.39        -0.26;-2.5        -1.45        -0.28;-2.6
----------------------------------------------------------------------------------------------------------------
*--bit adjusted; **--adjustsed by age, gender, and education level.

       In addition, recent research in our group and elsewhere has 
     identified the cardiovascular system and the immune system as 
     important targets for mercury toxicity across the lifespan. 
     Because these studies have been published since the 2000 NRC 
     report and risk assessments by FDA and EPA, I will review 
     these data here. In follow up studies in Minimata and in the 
     Faeroes study of children exposed perinatally to methyl 
     mercury via fish consumption, alterations in cardiovascular 
     function have been reported (Oka et a1 2002; Sorensen et al 
     1999). In 2003, my colleague Dr Eliseo Guallar reported that 
     mercury exposures were associated with cardiovascular disease 
     in adults. In this elegant analysis, Guallar et al (2002) 
     demonstrated that consumption of fish containing mercury 
     resulted in loss of the beneficial effects of fish 
     consumption for cardiovascular function, that is, the methyl 
     mercury ingested by fish consumers abrogated the recognized 
     benefits of consuming omega-3 fatty acids of which fish are 
     an excellent source.
       The immunotoxic effects of mercury have long been reported 
     in experimental studies, many conducted by researchers here 
     in Philadelphia (Prof. Shenker, Monestier, and Kono). These 
     researchers and others have shown that administration of 
     mercury compounds to rats and mice can induce autoimmune 
     dysfunction similar to that observed in such autoimmune 
     diseases as lupus and scleroderma. However, there has been 
     little data to suggest that mercury could cause autoimmune 
     disease in humans. We have examined these potential risks of 
     mercury in a different way, to test whether mercury can 
     accelerate autoimmune disease in the context of triggers of 
     these diseases, such as genetic susceptibility, infection, or 
     exposure to antigens. We reported last year that pretreatment 
     of mice with very low doses of mercury can accelerate and 
     exacerbate lupus in an animal model of disease, resulting in 
     premature mortality, more extensive kidney damage, and more 
     rapid dysregulation of the immune system (Via et al 2003).
       To put our experiments in perspective, we are exposing our 
     mice to doses equivalent to consuming one can of tuna fish 
     per day with a concentration of 5-10 ppm methyl mercury. In 
     our current research we are examining interactions of low 
     dose mercury with infections, such as Coxsackie B virus, 
     which are major causes of autoimmune cardiomyopathy in 
     humans. Again, we found that mercury accelerates and worsens 
     heart disease in the context of viral ``priming'' (Nyland et 
     al 2004). Autoimmune myocarditis is a leading cause of sudden 
     heart failure in young persons; the possibility that mercury 
     exposures could uncover latent disease, or worsen disease, is 
     very serious.
       Based on these studies, and the continued research on 
     mercury worldwide, it is fair to say that we have not yet 
     fully comprehended the range of mercury toxicity and its 
     risks for human health. In many ways, we are still at the 
     point in evaluating mercury as a toxic air pollutant as we 
     were in thinking about lead some 25 years ago. We know that 
     mercury is dangerous, and we know some people may be 
     excessively exposed. However, we do not fully appreciate its 
     toxicity and hence we cannot disregard the range of exposures 
     current in the U.S. population.
       Exposures to mercury compounds are a significant threat to 
     millions of Americans. One yardstick by which to judge the 
     need for urgent interventions in a public health problem is 
     to evaluate current levels of exposure to a toxic agent like 
     mercury. Several recent analyses have been undertaken on 
     exposures of the U.S. population to mercury compounds, most 
     recently by Dr. Kathryn Mahaffey and her colleagues at EPA. 
     (Their report is available on line from Environmental Health 
     Perspectives, the scientific journal published by NIEHS). 
     Mercury exposures can be evaluated either by population 
     studies of mercury concentrations in blood or hair, which was 
     done by the CDC in 2003 (Schober et al 2003). Exposures can 
     also be determined by analyzing mercury concentrations in 
     food, which is the major source of exposure for the U.S. 
     population. Mahaffey and colleagues have updated the earlier 
     assessment of U.S. exposures, using information on blood 
     mercury levels and on diet. Their analyses support the 
     urgency of taking comprehensive and effective actions to 
     reduce ongoing inputs of mercury into the environment. For 
     all U.S. women of childbearing age, half have blood mercury 
     levels in excess of 0.94 micrograms/L. Nearly 10% have blood 
     mercury levels greater than 5 micrograms/L, with a range of 
     2.7 to 25% depending upon ethnicity. The NRC recommendations 
     in 2000 supported a reference dose for mercury in cord blood 
     of 5.8 micrograms/L. Mahaffey et al estimate that more than 
     300,000 infants may be born each year to women whose blood 
     mercury levels are in excess of this health based guidance. 
     Clearly, this is an environmental health issue demanding 
     rapid intervention.
       Mercury comes from many sources, natural and anthropogenic, 
     and each individual is exposed to the sum of all these 
     sources. For most Americans, the proximate source of mercury 
     exposure is through the food supply, primarily through 
     seafood. Finally, the FDA seems ready to adopt the current 
     risk assessment, developed by the National Research Council 
     and adopted by EPA. However, this is the proximate source of 
     mercury, and attempting to reduce exposure by

[[Page 4641]]

     controlling the foods we eat is an inefficient and ultimately 
     uncertain public health policy. Moreover, without controlling 
     the ultimate sources of mercury, we are essentially writing 
     off seafood as a food source.
       The ultimate source of mercury is overwhelmingly from 
     energy production using fossil fuels. Prudent and effective 
     public health policy requires that we examine options for 
     controlling this source, rather than eliminating seafood and 
     some freshwater fish from our diets for now and forever.
       ``Cap and trade'' policies are not appropriate for mercury. 
     I am proud that I worked for the environmental organization 
     Environmental Defense that has developed innovative 
     strategies for protecting our environment and human health. 
     One of these strategies has been the careful selection and 
     implementation of so-called ``cap and trade'' policies for 
     certain pollutants, notably sulfur oxides. From this 
     experience, there are criteria we can apply in determining 
     what policies are appropriate for controlling specific 
     pollutants. First, trading only works to prevent 
     environmental impacts and harness efficient private sector 
     mechanisms under the following conditions: (1) it doesn't 
     matter where the pollutant is released, so that if one source 
     accumulated ``trading rights'' and emits more pollution than 
     a source that sells these rights, there will be no local 
     impacts around the buyer source. (2) the pollutant should not 
     accumulate in the environment, such that continuing emissions 
     do not build up in ecosystems or food pathways. (3) the 
     current levels of exposure should be acceptable such that it 
     is not necessary to implement a rapid overall reduction in 
     exposures at the local or national level.
       None of these conditions are met in the case of mercury. It 
     does matter where mercury is emitted. In an analysis of EPA 
     data conducted by Environmental Defense, it was shown that in 
     many states with mercury problems (evidenced by fish 
     advisories) local sources are the cause of environmental 
     ``hot spots''. If these sources utilize trading rights, then 
     the problem of local ``hot spots'' will continue. This is 
     likely, since the reason for these hot spots is current 
     levels of release, reflecting the fact that it is more 
     convenient, economically and technologically, for these 
     sources to emit mercury rather than control their facilities. 
     Mercury accumulates in the environment and in food pathways 
     affecting wildlife and humans. Mercury is an element and thus 
     never disappears. In addition, in the aquatic environment, 
     inorganic mercury emissions are transformed by bacteria into 
     methyl mercury, which is bioaccumulated by organisms through 
     complex food webs resulting in concentrations of 
     methylmercury in large fish that eat other fish tens of 
     thousands of times higher than the concentrations in water or 
     sediments. Current levels of exposure are unacceptable. For 
     that reason, it is imperative for us to take action to reduce 
     mercury exposures from all sources, but most expeditiously to 
     reduce the largest and least controlled sources. We have the 
     technology to control utility emissions, as has been 
     demonstrated in this country for other combustion sources and 
     in Europe for utility plants. Data below show the dramatic 
     reductions achieved by waste incinerators.
       We do not have room for trading, when hundreds of thousands 
     of adults and babies are at risk because of current levels of 
     exposure. We do not have time for trading, when consumers 
     must choose between a healthy diet, incorporating seafood, 
     and avoiding the hazards of mercury for themselves and their 
     children.


                            references cited

       Guallar E et al. Mercury, fish oils, and the risk of 
     myocardial infarction. New Engl J Med 2002; 347: 1747-1754.
       Mahaffey KR et al. Blood organic mercury and dietary 
     mercury intake. Environ Health Perspect 2004: ehponline.org 
     doi: 10.1289/ehp/6587.
       NRC. Toxicology of Methyl Mercury. NAS Press, 2000.
       Nyland J et al. Inorganic mercury increases severity and 
     frequency of autoimmune myocarditis in mice. Toxicol Sci 
     2004; in press.
       Oka T et al. Autonomic nervous function in fetal type 
     Minimata disease patients: assessment of heart rate 
     variability. Toh J Exp Med 2002; 198: 215-221.
       Rice DC et al. Methods and rationale for derivation of a 
     reference dose for methylmercury by the US EPA. Risk Anal 
     2003; 23: 107-115.
       Schober SE et al. Blood mercury levels in US children and 
     women of childbearing age, 1999-2000. JAMA 2003: 289: 1667-
     1674.
       Sorensen N. et al. Prenatal methylmercury exposure as a 
     cardiovascular risk factor at seven years of age. Epidemiol 
     1999; 10: 370-5.
       Via CS et al. Low dose exposure to inorganic mercury 
     accelerates disease and mortality in acquired murine lupus. 
     Environ Health Persp 2003; 111: 1273-7.
       World Health Organization. Methyl Mercury. Geneva: WHO, 
     1990.
       Yokoo E. et al. Low level mercury exposure affects 
     neuropsychological function in adults. Environ Health 2003; 
     @; 8-16.
                                  ____

                                        Maine Council of Churches,


                                Environmental Justice Program,

                                      Portland, ME, March 1, 2004.
     Re public hearing on mercury emissions ruling.

     Congressman Tom Allen,
     House of Representatives,
     Augusta, ME.
       Dear Congressman Allen: The Maine Council of Churches' 
     Environmental Justice Program asks you, as our representative 
     to the U.S. Congress, to carry a message to the Environmental 
     Protection Agency and the Secretary of Energy. With deep 
     concern for the sustainability of the living web of creation 
     we oppose the proposed rule change on mercury pollution as 
     well as the recently announced plan to build 94 new coal-
     burning power plants across the nation. Both proposals are 
     appalling in light of our growing scientific knowledge that 
     human activity--primarily burning fossil fuels in power 
     plants and vehicles--is seriously compromising the health of 
     our environment and all of the earth's inhabitants for 
     generations to come. We have the technology available today 
     to reduce mercury pollution by 90%; yet our federal 
     government proposes to introduce a ``cap-and-trade'' program 
     for this toxic pollutant and to build more power plants that 
     will generate mercury emissions.
       Living close to the land, most Mainers have experienced 
     firsthand the effects of mercury and air pollution emitted by 
     coal-burning power plants to our south and west. At our 
     rivers and lakes we read the posted fish advisories. We see 
     inhalers in backpacks reminding us that our children suffer 
     from the highest asthma rate in the region. We've learned on 
     hot summer days that the heavy haze that hugs our coastline 
     is ground ozone and is dangerous for our friends and 
     neighbors who have respiratory problems. Stay inside and 
     reduce your level of activity, we are warned.
       Concerned about these growing problems in our environment, 
     congregations and their members across Maine have been 
     working together to do something. Together we are conserving 
     energy as we obey the first Commandment and put into practice 
     our covenant with the Creator ``to care for the garden.'' 
     With support from the state Public Utilities Commission's 
     Efficiency Maine, congregations are participating in free 
     energy audits and rebates to install energy-efficient 
     appliances; individuals are replacing incandescent light 
     bulbs with compact fluorescent light bulbs at rebated prices 
     and implementing other technologies that conserve energy in 
     their homes.
       We want to learn and participate in state programs that 
     collect items containing hazardous wastes like mercury.
       And it is not only the faith community. Businesses and the 
     state have also made commitments, purchasing Maine-produced 
     ``green'' electricity and supporting wind and solar power 
     development through green tag purchases--all as a result of 
     Maine Interfaith Power & Light's successful campaign to bring 
     renewable electricity options to Maine residents.
       One by one, community by community, Mainers are making a 
     difference in the amount and kind of energy consumed in the 
     state and cleaning up our own contributions to air and water 
     degradation. But we can't do it alone. We need those who 
     create policy and oversee the protection of our environment 
     and its resources--the EPA, especially--to stand with us and 
     enforce the Clean Air Act and the Clean Water Act, which are 
     vital to the future of all of our neighbors on the earth. 
     These leaders must indeed work with us, not against us, and 
     champion life-sustaining energy and toxic pollution-reduction 
     policies.
       Thank you for your continued efforts on behalf of the earth 
     and its living inhabitants.
           Respectfully submitted,
                                              Anne D. (Andy) Burt,
     Director, Environmental Justice Program.
                                  ____


     Mercury Rule Hearing Sponsored by Tom Allen, Monday, March 1, 
   Legislative Council Chamber, Room 334, Maine State House, Augusta

       Thank you Rep. Tom Allen for holding this shadow hearing to 
     the Environmental Protection Agency's field hearing in 
     Philadelphia. We deserve the right to discuss their proposal 
     to weaken the Clean Air Act's protections against mercury 
     pollution from power plants, as it is Maine that will 
     continue to see the high rates of mercury deposition.
       My name is Patricia Philbrook. I am here today as a board 
     member of the Maine People's Alliance (MPA), a statewide 
     citizen action organization with 22,000 members.
       Power plants are the largest industrial source of mercury 
     in our environment. Mercury emitted from power plant stacks 
     falls as rain, snow, and even dry deposition here in Maine. 
     Three and one half years ago MPA co-released a report at the 
     HoltraChem site in Orrington indicating our rain and other 
     forms of precipitation, commonly thought to be pure, is 
     tainted with varying levels of mercury, in some instances 
     enough to be a threat to aquatic organisms. Remarkably, power 
     plants are the only major mercury polluters yet to be 
     regulated under federal clean air standards. Thus, in large 
     part, our nation's mercury problem is due to the fact that 
     while other sources must meet strict emission limits, power 
     plants continue to spew unlimited quantities of mercury into 
     our air, where the rain and snow wash it into our rivers, 
     lakes and oceans, and, ultimately,

[[Page 4642]]

     into our food chain. Public health demands that we act on 
     mercury to reduce children's exposure, who are especially 
     vulnerable to this potent toxin, and to protect all members 
     of our population.
       Maine also has local mercury problems, which we have been 
     addressing. Currently, the Maine People's Alliance and many 
     others have serious concerns about the proposed cleanup plan 
     at HoltraChem, one of the worst mercury pollution sites in 
     the country. Basically, Mallinckrodt plans to ``cover and 
     run,'' leaving many tons of toxic mercury in close proximity 
     to the Penobscot River. Mallinckrodt chose the best 
     opportunities for cost cutting rather than the right options 
     for eliminating toxic threats. This cheap solution is neither 
     acceptable to the residents of Orrington, nor to the people 
     living in the Penobscot Valley. Clearly, Mallinckrodt is 
     solely responsible for this mess. It built the plant, and for 
     years it profited while polluting one of Maine's great 
     natural treasures.
       As the sole responsible party left among the many that 
     operated the plant at one time, Mallinckrodt should be 
     legally bound to remove all toxic threats to human health and 
     the environment. To date, it has been operating on a 
     voluntary basis with the EPA to implement corrective actions 
     at the site. The government should require Mallinckrodt to 
     sign a consent agreement, legally binding it to follow 
     through with a thorough cleanup. The consent agreement should 
     also obligate Mallinckrodt to address any future problems at 
     the site that may not be apparent today. While the Maine 
     People's Alliance has worked tirelessly over three decades to 
     clean up HoltraChem and has supported the Maine Legislature 
     in efforts to reduce mercury contained in products sold in 
     Maine, we will continue to have some of the highest mercury 
     levels unless power plants are forced to observe strict 
     standards at the federal level.
       Unfortunately, the Bush administration has taken several 
     steps in the wrong direction. Instead of protecting mothers 
     and children from exposure to mercury, EPA's proposals would 
     protect electric utilities by setting targets so weak that 
     the industry will be allowed to continue polluting. What the 
     mercury standard should be and what the EPA should be 
     implementing is current law (Section 112 of the Clean Air 
     Act), which requires that industries install maximum 
     achievable control technologies to reduce air toxics such as 
     mercury.
       Two years ago, EPA's own scientists said the existing power 
     plants could achieve a 90 percent reduction in mercury 
     emissions using existing control technologies. This means we 
     can reduce mercury emissions from power plants from 48 tons 
     annually to roughly 5 tons per year by 2008. We should accept 
     no less.
                                  ____


             Mercury Rule Hearing: Teaching the Unthinkable

       Hello, my name is Chris Coleman and I am here as a 
     representative of the Chewonki Foundation. We are a non-
     profit center for environmental education located in 
     Wiscasset, ME. Personally, I am the Assistant Director of our 
     Travelling Natural History Programs. To put it simply: I am a 
     teacher. In the course of a year I teach thousands of 
     elementary school children throughout the state of Maine 
     about Owls, Hawks, reptiles, amphibians, waste management, 
     global warming, predators, prey, food chains, mammals, trees, 
     etc. If it's going on outside we have a lesson that will 
     teach you about it. In just about every lesson I teach, there 
     is a time when I explain the problems that the particular 
     subject of that lesson faces, whether it be plant or animal. 
     I teach with the understanding that awareness leads to 
     action. To each problem I offer a solution. Since the 
     majority of these problems are related to humans, the 
     solutions deal with things students can do to fix them, i.e., 
     picking up trash on the beach, not throwing apple cores out 
     car windows, buying things in the grocery store that produce 
     less waste, etc. I feel that it is important that children 
     understand they are not helpless in the grand scheme of 
     things just because they are kids.
       I pride myself in my ability as an educator to present 
     issues to students in a nonbias, ``middle of the road'' sort 
     of way. They deserve to hear both sides of the issue. I think 
     it is unfair to take advantage of such a malleable mind. 
     Children need to be given the facts, and then, from there it 
     is truly an amazing thing to watch as they go through a very 
     intense deductive process which almost always culminates in 
     the simple but entirely justified question, ``Why?'' Gone are 
     the days when as adults we can get away with the answer, 
     ``Because that's just the way it is.'' They have matured far 
     too much to accept such a thoughtless answer. Even at ten 
     years of age they need some ``hard science'' to reinforce 
     every concept within their own environment.
       Now I have a new problem to teach: mercury contamination. I 
     know the problem is not new to most of us here, but upon 
     researching the topic I have decided that the issue now 
     warrants a great deal of awareness among children in order to 
     create the action I spoke of earlier. Afterall, they are the 
     ones that will be forced to deal with this issue as it 
     becomes more and more of a problem. First I give them the 
     ``hard science'':
       Mercury is a highly toxic chemical with effects on the 
     central nervous system comparable to those of lead, 
     especially for unborn fetuses, very young children whose 
     brains are still developing, and piscivorous animal.
       Forty-five states have issued freshwater fish consumption 
     advisories.
       Loons of Maine in high-risk mercury situations have been 
     observed spending far less time sitting on their eggs in the 
     nest, foraging for food, and increased time brooding and 
     resting.
       High mercury levels are being passed on to loon chicks.
       4.9 million women of childbearing age in the U.S.--that's 8 
     percent--have mercury levels in their blood that are unsafe. 
     (Center for Disease Control).
       Two years ago, EPA scientists concluded that 90 percent 
     reduction in mercury output from coal fired power plants is 
     possible using existing technologies.
       The list goes on, and on, and on.
       Here is my dilemma though. What do I offer as a solution to 
     kids? What can they do? Maybe it's a problem better left for 
     adults to handle. And then they'll ask, ``What are the adults 
     doing about all of the mercury that goes into our water?'' 
     Now, thankfully I have an answer. Based on recent decisions 
     made by our government, I can honestly say to them, 
     ``Absolutely nothing.''
       What I fear the most though are the questions students ask 
     that they have no idea are even related to mercury, like, `` 
     Where are all the loons that used to live on my lake? How 
     come that bald eagle doesn't come back to its nest anymore? I 
     used to hear the shrill cries of an osprey every time my 
     family visited that island. Now everything is so quiet. Where 
     did the osprey go?'' Do I then explain to them that a deadly 
     neurotoxin called methylmercury is slowly killing off these 
     birds and it will only get worse as they grow older.
       Don't make me answer those questions. I shouldn't have to 
     answer them. Those answers should come from the people who 
     have created and perpetuate the ill effects of mercury 
     contamination. I always have such high hopes for children, 
     for the things they are capable of now and in the future, but 
     why do we constantly stack the deck against them. It is time 
     to right the wrongs of my generation, your generation, and 
     generations before us so that the children of today will be 
     able to swim in their lakes, eat their fish, and enjoy the 
     wildlife within their forests. I fear we as adults have 
     created so many problems for them to deal with, so why not 
     remedy this situation before it becomes catastrophic. My name 
     is Chris Coleman. I am a teacher. I came here today to speak 
     for the children of Maine.
                                  ____


  Testimony by Philippe Grandjean, MD, PhD, at the Mercury MACT Rule 
                  Hearing Sponsored by Rep. Tom Allen

       My name is Philippe Grandjean. I am an MD, PhD, and I work 
     as an Adjunct Professor of Environmental Health at Harvard 
     School of Public Health in Boston. I am also a Professor and 
     Chair of Environmental Medicine at the University of Southern 
     Denmark. I apologize for not being able to be present today 
     due to commitments in Europe and my field studies in the 
     Faroe Islands. I am grateful to you for allowing me to 
     present a short summary of the current status of our studies 
     of adverse effects of methylmercury in regard to human 
     health.
       I started studying the effects of mercury on human health 
     almost 20 years ago. Together with Dr. Pal Weihe, I collected 
     information on births in the Faroe Islands, a fishing 
     community located in the North Atlantic between Norway and 
     Iceland. In over 1,000 children, we determined the prenatal 
     exposure to methylmercury by analyzing the cord blood for 
     mercury. The mercury originated from the traditional Faroese 
     diet, which includes pilot whale meat in addition to frequent 
     meals of fish and shellfish. The pilot whale is a toothed 
     whale that eats fish and squid, and the mercury concentration 
     in the meat corresponds to the levels in swordfish and shark, 
     or higher.
       When we examined the children at age 7 years with 
     sophisticated neurobehavioral methods, we found that 
     increased prenatal mercury exposure was associated with 
     deficits in several brain functions, including attention, 
     language, verbal memory, spatial function and motor speed. 
     These associations could not be explained away by a multitude 
     of other factors that we also recorded. In fact, the Faroese 
     population is relatively uniform, and whale meat is freely 
     shared when available, so that one would not expect that 
     socioeconomic or other factors would play any great role.
       In 2000, the National Research Council released its report 
     on the Toxicology of Methylmercury. This report identified 
     our work as critical evidence in regard to identifying an 
     exposure limit for methylmercury. The NRC committee used the 
     so-called benchmark dose for these calculations and agreed 
     with the U.S. EPA that an exposure limit of 0.1 micrograms 
     per kilogram of body weight per day was justified.
       Since then, our research has made substantial progress, and 
     I would like to share some of these achievements with you.

[[Page 4643]]

       One insight comes from efforts in statistical theory by my 
     colleague, Dr. Esben Budtz-Jorgensen, a Danish statistician 
     who now works as a postdoc at Harvard. Esben first calculated 
     the degree of imprecision of the exposure assessments--that 
     is, in this case, how well the cord-blood mercury 
     concentrations reflected the ``true'' exposure. Imprecise 
     exposure assessments result in an underestimation of the true 
     effect of an exposure, in this case methylmercury. We had 
     anticipated that our mercury measurements would not be a 
     precise measure of the dose that the fetus (especially the 
     fetal brain) had received. But Esben documented that the 
     measurement error was much greater than we had thought. In 
     addition, the mercury concentration in the mother's hair was 
     a poor measure of the ``true'' exposure to the fetus.
       Such imprecision of course also affects the calculations of 
     benchmark doses. Esben has now calculated the influence on 
     the results that the NRC used in their report. In short, the 
     benchmark dose has been overestimated by a factor of 2. 
     Accordingly, if we were to calculate an exposure limit today 
     by the same procedure as the one used by the NRC, now using 
     the adjusted benchmark dose, then the exposure limit would be 
     only one-half of the limit used by the U.S.EPA.
       Another issue of importance is how you convert mercury 
     concentrations in hair to concentrations in blood and vice 
     versa. The calculation originally presented by the NRC was 
     based on cord blood and needs to be adjusted to the 
     concentration in adult whole blood. The EPA now estimates the 
     annual number of births in the US that exceed the EPA 
     exposure limit to be 630,000. However, the number would have 
     been even larger, had the EPA used the adjusted exposure 
     limit.
       Current risk assessments have been based on the assumption 
     that the fetal brain is the most sensitive organ. Brain 
     development also continues after birth, but we have been 
     uncertain how long an increased susceptibility to mercury 
     might last. Accordingly, some states have chosen to warn 
     against mercury exposure from fish only with regard to 
     pregnant women, while others have included children up to 
     various age levels. Our new results, just published in The 
     Journal of Pediatrics in the February issue shed new light on 
     the vulnerability of the brain.
       We had recently examined the Faroese children again at age 
     14 years, and the tests carried out included brainstem 
     auditory evoked potentials. In this test, the child was 
     hearing a sound from a headset, and we then recorded the 
     resulting electrical activity in the brain using surface 
     electrodes placed on the skull. Using standard clinical 
     procedures, we measured the transmission of the electrical 
     signal from the acoustic nerve through a series of ``relay'' 
     stations in the brain. We found that the latency, or 
     transmission time, of the signal from the acoustic nerve to 
     the brainstem was significantly increased at higher prenatal 
     exposure to mercury. This was true both at 7 years and at 14 
     years, suggesting that this effect of mercury on the 
     developing brain is irreversible.
       This mercury-associated delay in transmission appeared to 
     be parallel to the effects on the child's cognitive functions 
     that I mentioned before. The measurement of electrical 
     signals is regarded an objective assessment that is 
     independent of factors, such as age and socioeconomics. It 
     therefore represents an important, independent confirmation 
     of the neurotoxicity of methylmercury from seafood. We are 
     currently working on the neuropsychological test results at 
     age 14 years to see whether they too, as we anticipate, 
     reflect lasting mercury toxicity. So I can't report on these 
     results yet.
       An additional finding at age 14 years was that a subsequent 
     component of the signal transmission to the midbrain was 
     delayed at higher current mercury exposures, but in this case 
     it was not affected by prenatal exposure. Postnatal mercury 
     exposure up to adolescence therefore also seems capable of 
     damaging brain functions, although they may not be the same 
     as those that are sensitive to mercury during fetal 
     development. This conclusion is entirely plausible and agrees 
     with experimental animal studies.
       It is noteworthy that these children at age 14 had an 
     average exposure that was similar to the exposure limit used 
     by the U.S.EPA, and that 95% of them had exposures below the 
     level which has previously been considered safe by the FDA. 
     Yet, at these exposure levels, we saw a steady slope of 
     increasing delays of the electrical signals, the higher the 
     mercury exposure: The delay in the signals appeared already 
     at mercury doses below the EPA limit.
       All of these results regard cognitive effects and other 
     changes of brain functions. The autonomic nervous system 
     performs important, but unconscious functions, such as 
     regulating the heart beat, the blood pressure, etc. We have 
     now found that the mercury associated neurological changes 
     are also linked to decreased nervous system control of the 
     heart function. At higher mercury exposures, the children 
     were less capable of maintaining the normal variability of 
     the heart rate necessary to secure proper oxygen supply to 
     the body and to maintain an appropriate blood pressure.
       This finding has wider potential relevance, because other 
     research has suggested that mercury from fish may increase 
     the risk of heart disease and of dying from heart disease. 
     The most recent reports were published in The New England 
     Journal of Medicine in November, 2002. We suspect that part 
     of the reason for these findings is that the mercury affects 
     the autonomic nervous system and its control of the heart 
     function. Such effects are of course highly relevant to 
     Americans in general. These new results therefore suggest 
     that we should not only be concerned about mercury exposures 
     of pregnant women and small children. The EPA report that 
     over 10% of all births every year exceed the exposure limit 
     should therefore also be considered in regard to the 
     population at large.
       The importance of brain functions means even a small 
     deficit, whether measured as a decrease in IQ points or 
     otherwise, is likely to impact on an individual's quality-of-
     life, academic success and economic prospects in life. Even 
     though the children that we examined were all basically 
     normal, we have documented detectable deficits that appear to 
     be permanent. I would consider such changes as adverse health 
     effects that should be prevented. Further, even a small 
     increase in the incidence of heart disease is important, 
     because cardiovascular disease is the major cause of death in 
     this country.
       Freshwater fish and seafood are excellent supplies of 
     energy and essential nutrients. If fish is not contaminated 
     with mercury, it will help prevent heart disease. I believe 
     that it is an important effort to support public health to 
     prevent mercury contamination of the environment.
       Thank you.
                                  ____


  Statement of Rebecca Weinstein, JD, MSW, Executive Director, Maine 
                   Developmental Disabilities Council

       (On the U.S. Environmental Protection Agency's Proposed 
     Rulemaking On Standards for Reduction of Mercury Emissions 
     from Coal and Oil-Fired Electric Utility Power Plants and the 
     Use of Maximum Achievable Control Technology (MACT) Published 
     in the Federal Register on January 30, 2004 (69 FR 4692) EPA 
     Docket ID Nos. OAR-2002-0056 & A-92-55.)
       Good afternoon, my name is Rebecca Weinstein and I am the 
     Executive Director of the Maine Developmental Disabilities 
     Council. The Council is an independent advocacy organization 
     working toward systems change to assure that individuals with 
     developmental disabilities are fully included, integrated and 
     involved in their communities and the decisions impacting 
     them.
       It is not often the case that I have the opportunity to 
     testify on environmental issues; until fairly recently, 
     discussion of disability meant discussion of health and other 
     human services. However, increasing knowledge of the 
     potential role of environmental toxins and other factors in 
     causing developmental disabilities means that a much broader 
     spectrum of issues now must be considered as disability 
     issues.
       According to the federal definition, a developmental 
     disability is a condition which occurs before the age of 22, 
     has severe impact in three major life areas and is likely to 
     continue indefinitely. In most cases it is impossible to 
     identify a direct cause of a developmental disability. The 
     most current scientific research indicates that complex 
     interactions between social environment, genetics, and 
     environmental toxins such as lead, PCBs, and mercury play a 
     profound role in the causation of developmental disabilities. 
     While it is extremely difficult to have a measurable impact 
     on social environments and genetic factors legislatively, 
     emissions of these kinds of potent neurotoxins can be 
     substantially reduced and even eliminated through stringent 
     regulation.
       Mercury can have a devastating impact on fetal brain 
     development. Large exposures can cause mental retardation, 
     gait and visual disturbances, and even small exposures can 
     cause impairment in language, memory and attention. When fish 
     contaminated with mercury are consumed, women of childbearing 
     age can put their future children at risk for a range of 
     developmental disabilities. Warnings are regularly issued to 
     attempt to protect fetuses and young children from these 
     effects, but even with this warning system in place, the 
     Centers for Disease Control estimate that 1 in 12 women of 
     childbearing age in the U.S. has unsafe levels of mercury in 
     her blood. Women who have become contaminated with enough 
     mercury to cause substantial harm to a developing fetus may 
     not themselves have, or show signs of, mercury poisoning. 
     This is because the developing brain is especially sensitive 
     to the effects of mercury, where its presence can cause 
     significant disruption to a variety of processes including 
     cellular function, protein synthesis, cell division, and 
     cellular migration.
       As an additional cause for concern, recent studies have 
     shown that methylmercury in combination with polychlorinated 
     biphenyls (PCBs) act synergistically, raising questions about 
     the impact of mercury in combination with other neurotoxins 
     at very low levels. Many water systems in the US are 
     contaminated with a variety of toxins including PCBs and 
     other neurotoxicants, raising questions about analyses and 
     alerts based solely on a single toxin.

[[Page 4644]]

       The potential damage that mercury emissions pose to 
     America's children make it imperative that mercury emissions 
     be limited to the greatest extent possible. The more mercury 
     that is prevented from entering the environment, the greater 
     the chances that children will avoid its toxic impacts. Power 
     plants have been allowed to emit these toxic chemicals for 
     years, negatively impacting the health of our environment and 
     the nation's children. It is simply unacceptable not to 
     demand that these polluters meet anything but the most 
     stringent emissions standards, especially when technologies 
     already exist that can remove a large majority of these 
     emissions.
       I urge you to push for the most stringent standards 
     possible to help protect America's children.
       Thank you for your consideration.
                                  ____

                                                     Maine Council


                                           of Trout Unlimited,

                                                    March 1, 2004,
     Re Proposed National Emission Standards for Hazardous 
         Pollutants; and, in the Alternative, Proposed Standards 
         of Performance for New and Existing Stationary Sources: 
         Electric Utility Steam Generating Units; Docket ID No. 
         OAR-2002-0056, 69 Fed. Reg. 4652 (January 30, 2004).

     Administrator Mike Leavitt,
     U.S. Environmental Protection Agency, EPA Docket Center (Air 
         Docket), U.S. EPA West, Pennsylvania Avenue, NW, 
         Washington, DC.
       Dear Administrator Leavitt: EPA's current proposal to 
     regulate hazardous air pollutants emitted by the electric 
     utility industry does not adequately protect public health or 
     our fisheries. It is important to Maine Trout Unlimited 
     members that the electric utility industry takes 
     responsibility for its harmful emissions.
       Congress specifically lists mercury as a hazardous air 
     pollutant in section 112 (b) of the Clean Air Act because of 
     its toxic nature and its health effects. Toxic air pollutants 
     must be regulated so as to require the maximum achievable 
     control technology (MACT) at every source. The Maine Council 
     of Trout Unlimited is concerned about EPA's proposal to allow 
     trading of this toxic material.
       All of the New England states have Statewide Mercury 
     Advisories and within the State of Maine's Open Water and Ice 
     Fishing Regulations book is a warning about eating freshwater 
     fish: Warning: Mercury in Maine freshwater fish may harm the 
     babies of pregnant and nursing mothers, and young children.
       The proposed mercury MACT rule should require emissions 
     reductions from all coal-fired power plants by 2008 that are 
     equivalent to the level that can be achieved by the most up 
     to date pollution controls. We strongly urge the EPA to adopt 
     a rule that will protect human health and our fisheries.
           Sincerely,
                                                       Greg Ponte,
     Council Chair.
                                  ____

       My name is Marjorie Monteleon. I live on Mt Desert Island 
     where Acadia National Park is located. I chose to drive 
     between 5-6 hours round trip to protest the EPA's proposed 
     relaxing of the regulatory approach to mercury in air 
     pollution.
       Why?
       Because: Some tree swallows in Acadia National Park are 
     more mercury-contaminated than birds at a Superfund site in 
     Massachusetts, according to Jerry Longcore, of the U.S. 
     Geological Survey.
       Because: ``The mercury in rain falling on Acadia National 
     Park peaked at . . . close to four times the current EPA 
     standard and over 23 times higher than the Great Lakes human-
     health standard.'' On average, the rain in Maine carries 
     mercury levels more than three times greater than the EPA's 
     updated human-health standard for the Great Lakes.
       Because: Seal Cove, Hodgdon Pond, and Aunt Betty Pond, in 
     Acadia National Park are highly contaminated. It may be 
     unsafe for anyone to eat any fish from these ponds.
       Because: 20 to 25 percent of ``loons'' in Maine have high 
     mercury levels, high enough, in fact, that they are at risk 
     of neurological and behavioral problems; those loons fledge 
     40 percent fewer young and we know that mercury levels in 
     loons are a measuring stick for mercury levels in our 
     environment. And we know that mercury in our environment 
     eventually winds up in our bodies.
       Because: 3-4 million people come to Acadia each summer. We 
     year-rounders depend on them for our living. They eat tons of 
     our seafood, ride in our boats, buy our boats, rent lodging 
     and campsites, buy souvenirs, gasoline, etc. What happens 
     when our fish is completely inedible? What about the 
     fishermen, my son included? What about the boat builders?
       Because: Not just Acadia.
       The rain in Bridgeton is contaminated with ``more than 
     twice the generic EPA aquatic life and wildlife standard and 
     over 14 times the new more protective human-health standard 
     developed for the Great Lakes,'' according to studies by the 
     Mercury Deposition Network.
       The EPA's motto is Protecting ``Human Health, Safeguarding 
     the Natural Environment. Pray tell what do they propose to 
     tell the populace as it slowly dies from mercuy 
     contamination? What does it take to get them to abide by 
     their motto?
       Apparently it takes many lawsuits to require the EPA to do 
     it's job.
       1. The goal of one case, by Earthjustice is to force the 
     EPA to require Ohio to tighten the controls on some of the 
     worst air pollution in the country. Oct. 02
       2. Another case: The court settlement requires EPA to 
     formally determine, by April 2004, which areas have smog that 
     violates the 1997 national air quality standards for ozone. 
     Once EPA makes those determinations, state and local 
     governments will be called on to prepare smog cleanup plans 
     adequate to meet the standards.
       3. Another case: Challenged EPA's authorization of the use 
     of vinclozolin; a dangerous fungicide linked with serious 
     birth defects and other health maladies.
       Mercury is one of the most toxic substances in the world, 
     more toxic than lead or arsenic.
       So how do we get the EPA to do it's job? Another lawsuit? 
     We demand an end to airborne mercury pollution. We demand 
     that the EPA protect over 630,000 infants born every year 
     with levels of mercury in their blood so high that it can 
     cause brain damage.
                                  ____

       Good afternoon. My name is Jon Devine, and I am 
     representing the Natural Resources Defense Council. I am an 
     attorney in NRDC's Health and Environment program. Before 
     coming to NRDC, I defended and implemented the Clean Air Act 
     in a number of policy and legal positions for both state and 
     federal agencies. I am also a parent of two young sons. I am 
     troubled that the agency is shirking its public health 
     mission and its duties under the Clean Air Act while 
     consigning states to a future of contaminated waterways and 
     fish. Beyond that, EPA's mercury proposal offends me as a 
     parent, because the agency is telling my kids to wait until 
     adulthood to see fewer mercury reductions than the law 
     requires to be accomplished before my youngest is in grade 
     school.
       EPA has proposed a program that demands no mercury 
     reductions in the near term except those that would otherwise 
     occur, asks power plants to make only modest improvements by 
     2018, and sets up a trading mechanism that will actually 
     delay pollution controls far beyond 2018. The agency's 
     approach stands in stark contrast to what the Clean Air Act 
     requires--reducing mercury pollution by as much as 90 percent 
     within three years. My testimony focuses first on EPA's 
     grotesquely weak section 112 proposal, then its proposal to 
     revise history and undo the agency's determination that 
     regulating power plant mercury is necessary and appropriate, 
     and finally its proposal to find the authority in section 111 
     of the Act to do exactly what the administration had failed 
     to accomplish with the so-called ``Clear Skies'' Act. That 
     bill would establish a cap-and-trade system for mercury in 
     two phases, with the first phase cap set at the level 
     expected to occur as a ``co-benefit'' of controlling other 
     pollutants, and the second phase cap requiring a reduction of 
     roughly 70 percent in the far distant future.
       Starting with section 112, EPA's mercury emission standards 
     violate the Clean Air Act in several ways. First, EPA used 
     stack tests and coal data from the lowest-emitting 
     facilities, and then, in the name of establishing an 
     ``achievable'' standard, subjected these data to a series of 
     statistical manipulations that resulted in an emission 
     standard far higher than what the plants achieved as a 
     regular matter. EPA took several short-term emission 
     observations from each facility, ranked them from best to 
     worst, and picked the emission level that was worse than 97.5 
     percent of the data set, resulting in a figure that 
     represented virtually the worst performance the plant 
     experienced. The agency then took this figure for each of its 
     top-performing sources and applied a second 97.5 percent 
     adjustment, thus resulting in a number that, as best we can 
     tell, is meant to represent a prediction of the worst 
     performance any similar source might experience under the 
     worst conditions. As a last step (or perhaps I should say 
     straw), EPA then took this calculation of the worst-of-the-
     worst short-term emissions and used the result as the basis 
     for an annual emission limit. This statistical manipulation 
     is indefensible--it effectively assumes that the worst 
     conditions that the worst facility in the group briefly 
     experienced will exist throughout the year. EPA goes far 
     beyond ensuring that regulated facilities will be able to 
     meet the standard under ``reasonably foreseeable 
     circumstances,'' and instead makes sure that they will meet 
     them under circumstances statistically certain never to 
     occur. Even if one accepts some of EPA's assumptions, the 
     consequences of the agency's most egregious numbers games are 
     extreme; for example, by using the second 97.5 percent 
     adjustment and by making the emission limit annual, EPA 
     weakened the standard for bituminous coal burning units by 
     more than a factor of four. Had EPA not used these two 
     devices, we calculate that the agency would have to reduce 
     emissions from bituminous, subbituminous, and lignite units 
     to approximately 10.5 tons

[[Page 4645]]

     per year. By contrast, EPA uses these gimmicks to justify 
     allowing power plants to emit approximately 34 tons per year, 
     which is precisely the same level of mercury control that EPA 
     predicts will occur as a co-benefit of controlling other 
     pollutants. What a remarkable coincidence that EPA's 
     technical staff performed these calculations and just 
     happened to find that they required the exact same level of 
     reductions EPA had sought to achieve legislatively and that 
     it now proposes to accomplish with its alternative section 
     111 proposal.
       The second major flaw with EPA's section 112 proposal is 
     its failure to examine basic emission reduction techniques as 
     MACT. EPA discards precombustion controls by suggesting that 
     some sources in the industry might find them difficult to 
     implement, but it does not undertake a MACT analysis to 
     evaluate whether the superior performers in the industry 
     engage in pollution prevention activities that minimize 
     mercury emissions. Moreover, when one compares EPA's proposed 
     29 percent reduction to analyses by State regulators and 
     others, the agency's characterization of its program as MACT 
     appears laughable. For instance, the Northeast States for 
     Coordinated Air Use Management recently concluded that 
     ``existing control devices designed to reduce other 
     pollutants can deliver substantial mercury reductions,'' with 
     some bituminous-fired units achieving 95 percent reductions 
     and subbituminous units achieving over 70 percent reductions. 
     NESCAUM also noted that mercury-specific controls, such as 
     activated carbon injection, were successfully deployed in 
     U.S. coal-fired plants and achieve over 90 percent control, 
     and Iowa permitting authorities recently required a new 
     subbituminous plant to achieve 83 percent control.
       Third, EPA's proposal does not set emission limits for 
     several hazardous air pollutants the agency admits are 
     released from utility units. Doing so simply flies in the 
     face of prior court decisions interpreting the MALT 
     provisions of the Clean Air Act, and nothing in section 
     112(n)'s ``necessary and appropriate'' language allows the 
     agency to issue rules only for those pollutants the agency 
     feels are of concern.
       Fourth, EPA proposes to allow sources to participate in a 
     pollution trading scheme so that plants in the aggregate will 
     emit 34 tons of mercury annually, but no individual plant 
     would need to meet any particular emission limit. The agency 
     suggests that either section 112(n)(1) or 112(d) of the Clean 
     Air Act might provide it authority to create such a system, 
     but neither section authorizes such a radical approach. 
     Section 112(n)(1) does not provide authority to vary the 
     characteristics of a MACT standard, and section 112(d) does 
     not permit EPA to create a cap-and-trade program encompassing 
     multiple sources. The agency itself acknowledged this several 
     years ago, when it concluded that ``no averaging can be 
     permitted between sources that are not part of the same major 
     source.''
       Fifth, EPA's proposal arbitrarily defines subcategories 
     based on coal rank. This choice is flawed because EPA admits 
     that nearly a quarter of the coal-fired units in the Nation 
     currently fire different ranks of coal, and because many more 
     may be capable of doing so. This fact suggests that the 
     purported differences between units that burn different ranks 
     of coal are of little real-world consequence.
       Perhaps because of these obvious legal problems with the 
     agency's attempt to shoehorn its desired result into section 
     112 of the Act, EPA has developed an alternative plan to 
     avoid section 112--it proposes to undo the December 2000 
     regulatory determination that controlling mercury from power 
     plants under section 112 is necessary and appropriate, and 
     proposes to remove utility units from the list of source 
     categories subject to MACT. EPA cannot lawfully rescind its 
     determination because section 112(c)(9)(B) dictates the 
     specific mechanism that EPA must follow in order to avoid 
     setting emission standards for listed source categories. That 
     provision only allows source categories to be removed from 
     the regulatory list if no individual source is a danger to 
     health or the environment, but EPA does not even attempt to 
     make this showing in its proposal.
       Finally, I want to turn to EPA's proposed section 111 two-
     phase, cap-and-trade, mercury program, which is the 
     administrative twin of the Clear Skies proposal. This element 
     of the agency's preferred approach is remarkable because it 
     is simultaneously audacious and feeble. The proposal is 
     audacious because EPA purports to find the authority in 
     section 111 to do virtually anything it pleases in regulating 
     stationary source emissions. The agency interprets the 
     section's use of the terms ``best,'' ``system,'' and 
     ``standard of performance'' to allow EPA to devise, so long 
     as it considers certain factors in doing so, whatever 
     emission control regime it thinks works best, and to permit 
     the industry to comply at individual units, across whole 
     plant sites, or even by averaging throughout whole 
     industries. This strained interpretation fails because it 
     threatens to swallow the rest of the Clean Air Act whole and 
     because other parts of the Act--such as the MACT provisions--
     use the same or similar terms and would be rendered absurd if 
     they were read the way EPA now reads section 111. The 
     proposal's reach also exceeds its grasp by concluding that 
     the Clean Air Act can be read to allow EPA to regulate HAPs 
     under section 111, when the law was clearly intended to 
     achieve HAP control under section 112.
       Most of all, however, the section 111 proposal is feeble. 
     It concludes that a 29 percent mercury cut by 2010 and a 69 
     percent reduction by 2018 represents what companies can 
     achieve, even though greater reductions are possible much 
     earlier with existing technology. Moreover, EPA intends to 
     implement this reduction program using a cap-and-trade scheme 
     that would allow polluters to bank emission credits and 
     therefore would permit emissions to remain significantly 
     elevated far into the future. Last summer, EPA performed 
     modeling analyses of the Clear Skies Act and predicted that 
     power plant mercury emissions would be cut by only 43 
     percent, to approximately 27.8 tons, by 2026, despite the 
     law's 15-ton cap established for 2018. The trading scheme 
     also raises the specter of toxic hotspots around companies 
     that buy credits rather than clean up.
       This brings me back to where I began. EPA's proposals deny 
     our children's generation what the Clean Air Act promises. 
     Rather than deliver dramatic mercury reductions by the time 
     my sons are 7 and 3 years old, EPA has proposed a program 
     that will allow emissions to remain at excessive levels at 
     least until they are well into their twenties. To do so, EPA 
     will have to violate numerous provisions of the Act, and will 
     likely provoke litigation that causes additional delay. 
     Rather than choose this ill-conceived course, the agency can 
     and must implement the law and require companies to implement 
     demonstrated technology to reduce toxic mercury pollution 
     immediately. Thank you.
                                  ____

       To the Environmental Protection Agency from a Maine 
     physician:
       The EPA must be true to it's mission and fight to the 
     bitter end against the ``cash and carry'' proposals the Bush 
     administration has adopted from secret industry memos. We in 
     Northern New England have a huge stake in this since much of 
     the toxic mercury that rains down on us originates in 
     Pennsylvania and a few other big coal States upwind. The Bush 
     administration will enshrine ``Clear Skies'' into law unless 
     government agencies sworn to protect public health dig in to 
     protect the people from these assaults as they did against 
     arsenic in our drinking water!
       Mercury is a persistent poison which is concentrated many 
     thousand times as it moves up the food chain into the bodies 
     of ``top predators''--loons, eagles, Florida panthers--and 
     mothers and babies. Your new EPA guidelines, based on the 
     latest research, indicate 600,000 babies yearly are at risk 
     of a wide range of developmental and learning disorders from 
     mercury. The risks continue into early childhood.
       Mercury poisons our bodies by interfering with proteins, 
     which are the machinery of all cells. They orchestrate every 
     move of the dance of life. Proteins are long strings of 
     smaller molecules known as amino acids that must fold up like 
     origami after creation, then bind to other proteins or 
     chemicals in our cells. They must maintain their shape 
     perfectly to do their jobs. Mercury deforms the shapes of 
     proteins.
       Proteins do an amazing number of different jobs. They 
     transport materials into and throughout our bodies, and 
     convert food into energy. They enfold and protect the DNA 
     double spiral staircase. They form the delicate spindles that 
     pull the chromosomes into the two daughter cells after 
     division. On immune system cell surfaces, they recognize and 
     help engulf invading microbes. They help us perceive our 
     environment and survive through our five special senses.
       One of the most amazing things proteins do is control brain 
     development. The brain does not just start out as a single 
     cell and grow ever larger. Brain cells actually move around 
     in the embryonic brain. Some cells are killed off by others. 
     Brain cells send out axons and dendrites that hook up with 
     other very specific neurons which are often many inches away. 
     All these actions must happen at very precise times, measured 
     in single days or even hours. At every step proteins on the 
     surface of cells and their outgrowing axons and dendrites 
     must sense their environment. They react to minute traces of 
     messenger chemicals released by other brain cells that tell 
     them where they are and where to go. Thousands of such events 
     happen during thousands of moments that are ``windows of 
     vulnerability'', during which bad things can happen.
       Each gene makes a protein that interacts with many other 
     proteins. Fetal brain development is like a symphony with a 
     hundred thousand instruments. Each must come in at the 
     perfect time and the perfect pitch or you get a damaged 
     child. This damage can often be detected by sophisticated 
     psychological tests such as ``The Boston Naming Test''. These 
     children can often look superficially normal but have 
     problems with hearing or motor skills and later problems with 
     language, attention, and memory. They are often marginalized 
     and end up in special ed, in prison, and on the welfare 
     rolls.
       Field research summarized in a recent report by the 
     Biodiversity Research Institute shows multiple adverse 
     effects of mercury on various fish-eating birds, such as our 
     beloved Maine loon. Loon fertility in Maine lakes can be 40 
     percent reduced because of mercury

[[Page 4646]]

     blown in on the prevailing winds from the Midwest. Stress 
     hormone levels have been shown to increase as mercury 
     increases. No reproduction occurs when mercury levels in fish 
     are over a certain threshold. Loon parents with high mercury 
     levels will spend less time sitting on their eggs and chicks 
     warming and protecting them, less time foraging to feed them, 
     and less time in generally high energy activities needed to 
     support the next generation. They rest more or swim aimlessly 
     in front of the nest. Present mercury levels can even cause 
     abnormal loon feathers. Some fishing birds like the Great 
     Egret have been shown to have problems catching fish. This is 
     felt to be due to difficulty seeing. Some fish species with 
     high mercury levels have been shown to have trouble avoiding 
     predators.
       The present administration has a long history of ignoring 
     science in favor of short term profits for friends in 
     industry. The EPA must help them accept the truth!
           Sincerely,
       Paul Averill Liebow MD FACEP, Bucksport, Maine. Maine 
     Physicians for Social Responsibility, Steering Committee; 
     Natural Resources Council of Maine, Board of Directors; 
     National Wildlife Association, Maine Representative to Annual 
     Meeting March 2004.
                                  ____

                                                    March 1, 2004.
     Re: proposed National Emission Standards for Hazardous 
         Pollutants; and, in the Alternative, Proposed Standards 
         of Performance for New and Existing Stationary Sources: 
         Electric Utility Steam Generating Units; Docket ID No. 
         OAR-2002-00.56, 69 Fed. Reg. 4652 (January 30, 2004).
     Administrator Mike Leavitt,
     U.S. Environmental Protection Agency, EPA Docket Center (Air 
         Docket), U.S. EPA West (6102T), Washington, DC.
       Dear Administrator Leavitt: As chefs from Portland, ME, we 
     are deeply invested in the safety of the seafood we prepare 
     and serve to our patrons. Today, we write to respectfully 
     express our concerns over the proposed rule by the U.S. 
     Environmental Protection Agency (EPA) to control mercury 
     emissions from coal-fired power plants.
       Every year, people from all over Maine and the country 
     enjoy the fine seafood offerings of Portland; we pride 
     ourselves on the wide selection of fresh seafood dishes that 
     our many visitors enjoy year after year.
       Whether preparing a salmon filet or seared tuna, chefs know 
     that fresh seafood is a critical component of our cuisine, 
     which is why keeping it safe is so important. Unfortunately, 
     the levels of mercury in some species of fish such as 
     swordfish, oysters, tuna, halibut, red fish, pike, sea bass 
     and others make them unsafe for young women and children. 
     Mercury pollution poses a real threat to public health.
       Right now, power plants across the country are contributing 
     to a looming mercury crisis, contaminating much of the 
     seafood that Portland is so famous for. Electric power plants 
     are responsible for approximately 30 percent of the country's 
     mercury emissions and are the only major mercury polluters 
     that remain uncontrolled. Smokestacks spew mercury pollution 
     into the air, where it rains and snows down into our 
     waterways and accumulates up the food chain.
       The principal way that people are exposed to mercury is by 
     eating fish, a staple of our restaurants. Maine and 43 other 
     States, the EPA and the Food and Drug Administration have 
     issued various advisories warning people, especially women 
     and children, to avoid or limit eating some types of fish. 
     Even with such warnings in place, the Centers for Disease 
     Control and Prevention estimate that 1 out of 6 U.S. women of 
     child-bearing age have unsafe levels of mercury in their 
     blood.
       In the interest of our customers, our health and our 
     environment, we are joining together to ask for action to 
     keep the mercury levels from increasing. To make sure that 
     mercury contamination does not affect the popularity of the 
     restaurant industry in Portland, we write to request stronger 
     regulations on power plant emissions of mercury.
       Officials can, and should, take immediate action to nearly 
     eliminate the mercury pollution that's spewing into our air 
     from power plants. Two years ago, EPA's own scientists said 
     current technologies could achieve a 90 percent reduction 
     from power plants. The Bush administration should remove as 
     much mercury from power plants as is technologically 
     feasible--90 percent.
       We respectfully urge the EPA to adopt a rule that maximizes 
     the protection of human health and our fisheries by 
     regulating mercury emissions to the level that we know is 
     technologically feasible and to do so quickly.
           Sincerely,

                                            Becky Lee Simmons,

                                                      Chef, Owner,
     Katahdin Restaurant.
                                  ____


    Testimony of Dr. Jim Mainer Regarding Airborne Mercury Pollution

       Thank you Representative Allen and others for this chance 
     for Mainers to speak out on this issue!
       I'm Dr. Jim Maier, a child and family psychiatrist with 
     over 25 years experience living and working in Maine. I'm 
     also the father of two daughters of child bearing age. And 
     since I've spent most of my professional career helping to 
     take care of the behavioral and neurological problems of kids 
     who, for whatever combination of reasons including fetal 
     brain damage, have been handicapped in school and in life, 
     this is not just an academic issue for me.
       The glaring fact that this is a ``Shadow'' hearing in the 
     absence of EPA speaks volumes about the moral cowardice and 
     irresponsibility of this administration. The Feds know a lot 
     about the toxicity of mercury emissions of coal-fired plants 
     in the Midwest for New Englanders and others ``at the end of 
     the tailpipe,'' but seem not to care what we think. It's a 
     lot like a Bishop who has learned there's a bad priest in his 
     Diocese sending that individual out of State to some other 
     parish, and just not wanting to hear how many more children 
     have been abused and harmed in the new location.
       We know mercury is a bad actor. We've taken many measures 
     here in Maine to clean up our own State. Like 45 other 
     States, we're warning people not to eat much fish. (The 
     administration does deserve credit for promoting ``catch and 
     release,'' but only because it's allowing the fish to become 
     progressively more toxic to mothers of childbearing age!) But 
     to delay implementation of the existing technology to reduce 
     mercury emissions by 90 percent by 2008, and allowing another 
     decade of relaxed standards in return for fat campaign 
     contributions from the polluters, is a devil's bargain 
     Mainers don't accept. This proposed delay, or meaningless 
     shell games allowing some plants to continue to pollute if 
     others clean up, means that perhaps 5 percent or more of 
     women of childbearing age will continue to have unsafe levels 
     of mercury in their bodies, and be putting tens of thousands 
     of their babies at risk of damage to their developing brains 
     or cardiovascular systems. (A long term study sponsored by 
     Dr. Philippe Grandjean of the Harvard School of Public Health 
     in the Faroe Islands has published objective evidence about 
     this in the Journal of Pediatrics.)
       Again to use the sex offender analogy, it's as if we are 
     registering all sex offenders and pedophile priests in Maine, 
     notifying neighborhoods and churches about the risks of 
     letting them be in our communities, but then permitting any 
     other States to send convicted child molesters here, and 
     turning a blind eye to what damage and trauma these out-of-
     state sex criminals may inflict on Maine children.
       Like all other medical students, I learned the name 
     Minimata early in my training. Like Chernobyl, Bhopal, and 
     Love Canal--other names that live in environmental infamy--it 
     was the site of an environmental tragedy that taught just how 
     poisonous high dose mercury can be. Death, blindness, 
     cerebral palsy, severe mental retardation, seizures and other 
     severe symptoms occurred in the exposed population around 
     Minimata Bay, Japan where an industrial spill occurred. But 
     we also know that subtle but definite brain and central 
     nervous system effects can happen with exposure to far lower 
     doses that come from eating even moderate amounts of fish 
     contaminated by methyl mercury, an easily absorbed compound 
     that is spread through the body, across the placenta, and is 
     secreted in breast milk. This is insidious, because mothers 
     may not even be symptomatic with levels of mercury that can 
     definitely affect their more vulnerable fetus. Higher mercury 
     exposure on the developing brain has been correlated with 
     decreased attention, fine motor impairment, problems with 
     language and visual-spatial abilities, and memory 
     impairments. It's hard to pin down just what role mercury 
     plays in such impairments because the research is less well 
     developed than with lead, another known bad actor. But as 
     with lead poisoning, as more research is done, we will 
     probably become more concerned, and may be lowering what we 
     think of as ``acceptable'' exposure levels. What's an 
     acceptable level to a loon? The EPA heard testimony from the 
     Natural Resources Council of Maine at a recent hearing in 
     Philadelphia that loons in Maine test 4X higher with respect 
     to mercury levels than loons in Oregon. What levels are o.k. 
     for Bald Eagles, whose reproductive success may be 
     jeopardized by the mercury they concentrate in their bodies. 
     Unfortunately they don't vote, but we'll be voting on their 
     behalf in November!
       Perhaps if the Bush administration cared to reduce their 
     blatant hypocrisy about ``No Child left Behind,'' they should 
     just come out and speak plainly about ``No Child Left 
     Unexposed to Toxics.''
       Representative Allen, we hope that you will pass on to your 
     colleagues in the Maine Delegation who also care about clean 
     air and water, and to the EPA which apparently doesn't care 
     nearly enough, the angry earful you're hearing today from 
     Maine people!
           Respectfully Submitted,

                                         James H. Maier, M.D.,

                                          A.B.P.N. Certified Child
                                           and Adult Psychiatrist.

  The rule that I mentioned, the proposed rule that favors polluters, 
raises serious questions about this administration's commitment to the 
health of our citizens. Regulating hazardous air pollutants is in fact 
for many people a

[[Page 4647]]

life-and-death matter and Congress designed a system under the Clean 
Air Act to ensure regulations are developed through an objective 
rulemaking process. Yet the attainment dates and level of reductions 
exactly match the President's Clear Skies proposal. In other words, the 
proposal that he and his staff generated for reductions is the proposal 
that has come out of the EPA. But that is not the way the EPA is 
supposed to work. The EPA is supposed to do independent, scientific 
analyses so that its rules are based on sound science, not made up as 
part of a political document.
  The Bush administration allowed industry to write part of the rule. 
That is profoundly disturbing. The proposal that would allow trading 
under section 112 appears to have been written word for word by Latham 
and Watkins, a law firm in Washington representing utilities. EPA's 
assistant administrator for air and radiation, Mr. Jeffrey Holmstead, 
used to be a partner at Latham and Watkins. Mr. Holmstead now says, 
well, the Latham and Watkins contribution to the rule was submitted by 
the Energy Department. He says it came from the Energy Department. The 
White House says Jeffrey Holmstead was the brains behind the cap-and-
trade proposal. But wherever it came from, the Latham and Watkins 
language, about three or four paragraphs, submitted to the EPA, is in 
the finished rule, word for word.
  An EPA career professional told the L.A. Times the other day that 
they, the career professionals, were told not to undertake the normal 
scientific and economic studies called for under a standing executive 
order in preparing the rule. In other words, they take the information 
straight from the law firms representing the utility industry, they do 
not do the scientific tests that are required by law, and they come out 
with a proposed rule and that proposed rule is a bonanza for the coal 
industry and those utilities that use coal. It is outrageous.
  I am very pleased that the gentleman from Washington (Mr. Inslee), 
the other end of the continent, his loons do not have as much mercury 
in their feathers as loons do from Maine but he is here because this is 
an issue that he cares deeply about. I thank him very much for being 
here.
  I yield to the gentleman from Washington.
  Mr. INSLEE. I appreciate the gentleman from Maine bringing this 
important matter to national attention. I do care about the mercury 
contamination which this country will be experiencing because of the 
attempted sellout by this administration to special interests which 
will result in more mercury in the blood of young children in America. 
If that sounds like a strong statement it is, and it is true.
  But one of my concerns here is this is not just the only instance 
when this administration has knuckled under to the interests of special 
interests on K Street rather than the public interest which is supposed 
to be expressed on Independence Avenue where the U.S. Capitol is 
located. I just want to say that this is not, unfortunately, an 
aberration of this administration's sellout to special interests, to 
ignore science, to ignore clear health implications. It is consistent 
with their pattern of neglect of science and they are showing great 
attention to special interests. They need to do it the other way 
around. We need an administration that will show special sensitivity to 
health interests and ignore special interests on occasion. They have 
got it exactly backwards. They show exquisite attention to lobbyists 
from these industries and ignoring the clear science for health to the 
American people. I want to list some of the other places where they 
have done this.

                              {time}  1600

  And the oil and gas industry that has attempted to open up these 
methane drilling wells in a variety of places, the Rocky Mountains, 
including wilderness areas in Utah and in the Arctic National Wildlife 
Refuge, they have catered to specialists; and they have ignored the 
clear import of science.
  We are not the only ones who care about this. There have been some 
investigations in the Department of Interior about a fellow who used to 
work for the oil and gas industry, then was put as the fox in charge of 
the hen house, supposedly regulating. What was the first thing he did, 
like in the first few weeks on the job? And what did the investigators 
find out? They found out that he hosted a get-together, a little 
shindig for all the lobbyists to come down and do business with me, 
boys, I am now in charge of the Department. That is not what we expect 
from our public officials, and as a result, we have seen some ignoring 
of good science, which has caused tremendous problems for ranchers in 
Wyoming of contaminating the water supply because they have shown more 
interest to K Street than to Main Street.
  Second example, we had over a million people testify about whether to 
preserve old-growth timber in our remaining 10 percent of our national 
forests that have not been clear-cut, and we went out to ask what the 
public thought of the President's proposal to open up what we call the 
roadless areas to clear-cutting, and the public responded. There were 
over a million people who told the administration to keep their 
handsaws and their chainsaws from clear-cutting our roadless areas. And 
they got maybe three letters from the lobbyists on K Street.
  So what did this administration do? They are gutting this protection 
of the most pristine, the most precious crown jewels in our national 
forest system to allow these 6-foot and 8-foot and 10-foot 600-year-old 
trees to be cut down in clear-cuts, violating the clear science that 
that is not what we should be doing with the roadless areas. And why 
did they do it? They did it because this administration is extremely 
sensitive to K Street and not sensitive to the health interests and 
well-being, as they should be, of our constituents.
  Let me tell the Members why this is important. A lot of people do not 
think of forests as a health issue, but we have found out that is where 
our clean water comes from, from the forests. This is the greatest 
water purification system the planet has. And this administration 
ignored 1.2 million people who told this administration to ignore K 
Street and fall to the wishes of people, which they did not do.
  Third issue, and again I think it is important to note, anyone can 
make a mistake and any administration can make a mistake once in a 
while, but this is just a long train of abuses, an unbroken chain of 
following special interests rather than the health of the American 
people. When we are considering lead poisoning levels in the lead paint 
industry, which is of some interest to Members of Congress now because 
we are drinking water with too much lead in it in the Washington, D.C. 
system, which is an issue we are going to have to address, and maybe 
that explains some of the bad legislation around here, I am not sure; 
but in consideration of lead poisoning levels, in 2002, the CDC's 
Advisory Committee on Childhood Lead Poisoning Prevention was preparing 
to address the issue, and they had been advising that we need to 
address this issue. Did the administration address this issue in an 
aggressive, health-oriented way? No. Did they appoint people to the 
reflective committees that made their decision? No. They had special 
interests on their operation, and they failed the health of the 
American people.
  We could go on and on, but we are limited by time. This is a system 
that has corrupted the democratic process, and some of the best 
evidence that I know of, and the gentleman may have talked about this 
already, about a month ago, 20 nonpolitical Nobel laureates, and Nobel 
laureates usually think about physics and chemistry rather than 
politics, and they do not pound a lot of yard signs and they are not 
interested in running for public office, but 20 people who won the 
Nobel Prize, Americans in various sciences, chemistry, physics, name 
it, they were so disturbed by what this administration was doing in 
ignoring science to cater to special interests, they got together and 
wrote a letter to the President of the United States, and their basic 
message was start listening to good science rather than bad special 
interests.
  And it is a pretty extraordinary event when scientists will get out 
of

[[Page 4648]]

the lab, frankly, where they do tremendous work, and write a letter 
like that to the President of the United States. These are Democrats 
and Republicans, probably some Green Party members in there too. So I 
think it is an indication of how sour and corrupted this system has 
become. And so we are down here blowing the whistle on it, and I want 
to thank the gentleman from Maine (Mr. Allen) for his efforts.
  Mr. ALLEN. Mr. Speaker, I thank the gentleman from Washington (Mr. 
Inslee) for his remarks, and I appreciate his leadership on this issue. 
And he is exactly right. That group of distinguished scientists was 
saying that this administration over and over again manipulates science 
to serve the ends of their policy.
  I am going to yield to my friend from Maryland in just 1 minute, but 
just to pursue this question of who is writing the regulations, we have 
already pointed out that the EP professionals were shut out of the 
process of doing scientific studies of this proposed mercury rule and 
that Latham & Watkins, a Washington law firm, wrote part of the rule. 
There is another group involved. This is West Associates, a research 
and advocacy group representing 20 power and transmission companies in 
California and other Western States. The proposed rule contains exact 
language requested by West Associates, and the West language suggests a 
standard for determining likely mercury emissions at power plants.
  In other words, a provision that was enormously beneficial to the 
power plants was put in this proposed rule, an EPA rule, word for word. 
So part of it came from Latham & Watkins here, a law firm here, and 
part of it came from West Associates in California. How can the public 
have any faith that their interests, their health interests, are being 
protected by an administration which routinely violates the Clean Air 
Act in developing its regulations, all as a way to try to reduce 
expenses for the coal industry and the utility industry, both big 
contributors to Republicans and to the administration?
  Mr. INSLEE. Mr. Speaker, just one final note. There is a reason that 
the Vice President of the United States refuses to let the people who 
hired him, which is the American people, know what went on in this 
secret operation that took lobbyist language and put it in our energy 
bill. There is a reason for that. And that reason is another symptom of 
the sickness that is on our body politic right now. And I want to thank 
the gentleman for his efforts
  Mr. ALLEN. Mr. Speaker, unfortunately the problem continues. Justice 
Scalia today issued a statement that he would not recuse himself from a 
Supreme Court case involving the Cheney documents even though he went 
on a hunting trip with the Vice President on Air Force 2 to a preserve 
owned by an oil executive. The beat goes on.
  It is my pleasure to yield to the gentleman from Maryland (Mr. Van 
Hollen), who has taken a real leadership position on these issues. And 
Maryland is next door, it has got a lot of water, and the last thing 
they need is contaminated waterways. And I yield to the gentleman.
  Mr. VAN HOLLEN. Mr. Speaker, the gentleman is right, and I want to 
thank the gentleman from Maine (Mr. Allen) for his leadership and the 
gentleman from Washington State (Mr. Inslee). And I want to tell the 
gentlemen a little good news/bad news story; and we had some good news 
this morning, which is that a group of bipartisan Members of Congress 
from the Chesapeake watershed States got together and established the 
Chesapeake Bay Watershed Task Force. The Chesapeake Bay is one of the 
greatest national treasures in the United States, indeed in the world; 
and so we got together to pledge ourselves to work together to clean up 
the Chesapeake Bay and take the steps that are necessary. But this Bush 
administration proposal on mercury that the gentleman has drawn our 
attention to takes us in exactly the wrong direction. It takes us 
backwards.
  We all know that mercury consumption advisories have been issued 
throughout the United States; and, in fact, mercury contamination of 
fish is, of course, is the number one cause for human contamination, 
human poisoning. In my State of Maryland, we have had statewide 
advisories. In Pennsylvania and other States in the Chesapeake Bay 
Watershed, we had a Statewide advisory. And we know that recent studies 
have shown that Maryland is one of the States with the highest 
deposition of mercury in the country due to airborne mercury emitted 
from power plants. And this, as the gentleman has said, is a problem 
that is not unique to Maryland and to the Chesapeake Bay Watershed. It 
is a problem up in Maine. It is a problem in Washington State. It is a 
problem around our country. And currently advisories for mercury are 
increasing faster than any other pollutant. They now represent 60 
percent of all water bodies with fish advisories nationwide. So this is 
a national problem. It is a problem obviously in the Chesapeake Bay 
Watershed, which we have a particular interest in locally; but it is a 
problem throughout the country.
  And as my colleague from Maine was pointing out, we have an 
administration now that when it comes to issues of science, when it 
comes to issues of the environment, really the White House has become 
an evidence-free zone. I mean, we can get scientists, we can get Nobel 
laureates, we can get a consensus of opinion throughout the scientific 
community coming down on one side of an issue; and yet time after time 
the administration throws out the facts, buries its head in the sand, 
and decides to go the other way.
  We understand that mercury poisoning is something that affects people 
throughout this country. Of course, pregnant women and children are 
particularly vulnerable to mercury poisoning. And so this idea that the 
EPA now has, the Bush administration EPA, of establishing a cap-in-
trade program for mercury, which may be a very acceptable proposal for 
less poisonous contaminants, but when they have a cap-in-trade program 
for something as poisonous as mercury, what they are saying to those 
people who happen to live right next door to the power plant that is 
emitting mercury is it is okay if they get poison; as long as their 
power plant buys credits from somewhere else, buys the right to 
pollute, they can put as much mercury into the air around their plant 
as they want. That is a health disaster for people in the area. Again, 
it is one thing to treat less poisonous pollutants that way; but to 
take a hazardous pollutant like mercury and say go ahead and pollute, 
go ahead and contaminate the water in a particular area, it is going to 
mean serious health problems for women and children in that area and 
throughout the country.
  Mr. ALLEN. Mr. Speaker, I thank the gentleman for those comments, and 
they are worth elaborating on because in the past sometimes people who 
have lived around large power plants, particularly coal-fired power 
plants, they may have known that pollution problems were created in 
those plants in States far away, but they enjoyed the benefit of lower 
rates.
  The difficulty with mercury is just what the gentleman said. Mercury 
is a substance that does travel some distance, but lots of it comes 
down in the vicinity of the power plant itself. So along the Ohio River 
Valley in east Texas, in other parts of the country where we have coal-
fired power plants, what the administration's proposal is basically 
saying is we do not care if the dirtiest plant in the country stays 
just as it is. We are going to develop a system that was developed for 
sulfur dioxide that will allow that dirty plant to buy credits from 
clean plants, and so the dirty plant can simply continue spewing out 
the mercury and poisoning people in the surrounding area. It is the 
height of irresponsibility.
  That is why I come back to what I said earlier. There is no question 
that under the Clean Air Act mercury, which has been found to be a 
hazardous air pollutant, was meant to be regulated under section 112 of 
the act, entitled ``Hazardous Air Pollutants,'' and all of the work 
being done by the administration to date with this proposed rule is a 
way to let coal producers and utility companies off the hook so they 
will not have to spend the additional money they need to spend to clean 
up their act. And in doing that, the administration is simply putting 
the health of the American people at risk.

[[Page 4649]]

  It is absolutely mind boggling. Unless one is down in the middle of 
this and seeing this going on over and over again, with this 
administration, when the choice is between public health or the 
interests of polluters, polluters win.
  I yield back to the gentleman.
  Mr. VAN HOLLEN. Mr. Speaker, I thank my colleague for yielding to me, 
and he is exactly right. The problem with this is we need to make sure 
that the American people understand what is happening. That is why I am 
glad that he is doing this. Because we have an administration that goes 
out and does a lot of photo ops with beautiful landscapes in the 
background. There is a lot of rhetoric about the importance of 
preserving our environment, protecting areas like the Chesapeake Bay; 
but while we have this great public face of environmental protection on 
the one hand, on the other hand, when it comes to the regulatory 
process, people are very busy unraveling protections that have existed 
for years and years and years, and that is what this regulatory assault 
is about.

                              {time}  1615

  It is one of many that has taken place in recent years, and it is 
very important that we put a stop to it.
  Mr. ALLEN. Mr. Speaker, those are excellent points.
  I wanted to mention another point here that has just come up. The 
administration is starting to feel the heat. The new administrator of 
the EPA, the Environmental Protection Agency, Mr. Leavitt, has now said 
that he is going to reexamine this proposed rule. In other words, they 
did not do the studies; they issued the proposed rule. Now he is saying 
we need to go back and do the studies. This is the exact opposite of 
what normally happens.
  The gentleman said the administration was an evident-free zone. That 
seems to be the case. In past administrations, you do the scientific 
analysis first and then come up with a rule. You would not come up with 
a rule written by industry and then, when the heat got too much, say, 
well, we have to go back and do some studies now. But that is exactly 
what has happened. I think we need to say to the administration, well, 
it is about time, thank you for going back and doing the studies. But 
they have also made it clear that they do not really have much of an 
intention, as far as I can tell, of producing any results until 
December, conveniently, after the election.
  I wanted to make a couple of points. Over the past year, I guess I 
would say, I have written on numerous occasions, on February 12 of this 
year, last October 14, and May 21, 2003, I have written letters to the 
EPA about this exact problem, about the importance of doing the 
analysis and coming up with a Mercury MACT standard, as it is called, 
by the deadline. I never dreamed that they would come up with a 
proposal but never bother to do the science.
  Mr. Speaker, I would like to submit for the Record at this time the 
three letters I sent to the EPA.

                                    Congress of the United States,


                                     House of Representatives,

                                Washington, DC, February 12, 2004.
     Hon. Michael O. Leavitt,
     Administrator, Environmental Protection Agency, Washington, 
         DC.
       Dear Governor Leavitt: We are writing regarding reports 
     that portions of EPA's proposal to address mercury air 
     pollution have been copied word-for-word from industry 
     lobbying materials.
       Specifically, it appears that EPA has proposed a regulatory 
     approach to mercury air pollution that in part is copied 
     word-for-word from memos prepared by the law firm Latham & 
     Watkins, which represent some of the largest polluters in the 
     country. This is particularly troubling because two key EPA 
     officials who worked on the proposal were previously employed 
     by Latham & Watkins.
       On January 31, 2004, the Washington Post reported that an 
     EPA proposal published on January 30, 2004, ``is similar to 
     recommendations from two memos sent to federal officials by'' 
     Latham & Watkins. The article explains the remarkable 
     connections between EPA's proposal and the Latham & Watkins' 
     memos: ``A side-by-side comparison of one of the three 
     proposed rules and the memorandums prepared by Latham & 
     Watkins--one of Washington's premier corporate environmental 
     law firms--shows that at least a dozen paragraphs were 
     lifted, sometimes verbatim, from the industry suggestions.''
       It does not appear to be in dispute that EPA used the 
     Latham & Watkins language to make the substantive proposals 
     that Latham & Watkins advocated. The Washington Post quotes 
     one Latham & Watkins representative who states that it is 
     ``gratifying'' that the law firm's work had been ``cut and 
     paste[d]'' into EPA's rulemaking. Additionally, Jeffrey 
     Holmstead, EPA's Assistant Administrator for Air and 
     Radiation, confirmed that the language had originated from 
     outside of the agency. He stated, ``That's not typically the 
     way we do things, borrowing language from other people.''
       However, it is unclear how the Latham & Watkins language 
     entered EPA's rulemaking process. As you know, Mr. Holmstead 
     and his chief counsel, Bill Wehrum, worked for Latham & 
     Watkins before joining the EPA. Both Mr. Holmstead and Mr. 
     Wehrum have had high profile roles in this rulemaking.
       The Administration's public statements on this matter 
     appear to be less than completely transparent. In the January 
     31, 2004, Washington Post article, Mr. Holmstead stated ``it 
     came to us through the interagency process.'' He also stated, 
     ``Neither Bill [Wehrum] nor I had any idea this language came 
     from Latham & Watkins. . . . Our technical folks . . . used 
     it.'' The Post reports: ``According to Holmstead, the law 
     firm's language was part of the public record and was passed 
     along to the EPA by the White House budget office and the 
     Energy Department.''
       This appears to be at odds with press accounts of this 
     rulemaking from just over a month ago. On December 30, 2003, 
     the Washington Post reported that a senior White House 
     adviser said: ``If you had to pick one person, it was Jeff 
     Holmstead in EPA's air office who played the key role in 
     development of the cap-and-trade approach to regulation of 
     mercury emissions.''
       We are deeply concerned that EPA's rulemaking process has 
     been improperly influenced by industry at the potential cost 
     of the health of future generations of children. Congress and 
     the American people need to know how industry lobbyists came 
     to write a significant portion of an EPA formal rulemaking 
     proposal.
       Therefore we request that you provide us with all 
     communications (whether written, electronic, or oral) 
     relating to mercury air pollution between EPA officials and 
     the law firm Latham & Watkins, other industry law firms, 
     electric utilities, and other outside parties since January 
     1, 2003. Additionally, please provide us with information on 
     any meetings that took place since January 1, 2003, between 
     EPA officials and representatives or employees of Latham & 
     Watkins, including a list of the participants and the nature 
     and purpose of the meeting.
       Additionally, please explain if Latham & Watkins memos were 
     docketed in the rulemaking process. If not, please explain 
     why such influential documents that formed the basis for 
     EPA's proposal were not docketed.
       Please provide answers to each question and responsive 
     documents no later than February 18, 2003. Thank you for your 
     immediate attention to this issue.
           Sincerely,
     Henry A. Waxman,
                                               Member of Congress.
     Tom Allen,
     Member of Congress.
                                  ____



                                Congress of the United States,

                                 Washington, DC, October 14, 2003.
     Hon. Michael O. Leavitt,
     Governor of Utah, Office of the Governor, State Capitol, Salt 
         Lake City, UT.
       Dear Governor Leavitt: We are writing regarding our concern 
     that EPA is at risk of violating its legal and public 
     commitment to control emissions of mercury and other 
     hazardous air pollutants from power plants by the end of next 
     year. Given the serious public health and environmental harms 
     from this pollution, any further delay in regulation would be 
     unacceptable.
       Under a court-approved settlement agreement, EPA is 
     required to propose a regulation establishing emission 
     standards for hazardous air pollutants from electric 
     generating units (electric utility MACT rule) by December 15, 
     2003. For a ``significant'' rulemaking, such as this one, EPA 
     must submit a draft of the proposed rule to the Office of 
     Management and Budget (OMB) for interagency review. OMB may, 
     and frequently does, take up to 90 days to complete this 
     review. In numerous public pronouncements, Governor Whitman 
     and other EPA officials have repeatedly promised that EPA 
     will issue the MACT rule proposal by the December 15, 2003, 
     deadline. Yet to our knowledge, EPA has not yet transmitted a 
     draft utility MACT rule proposal to OMB.
       We seek your assurance that, if confirmed, you will act to 
     ensure that the drafting and review of the proposed rule are 
     completed on a schedule that will honor the commitments the 
     government has made to propose a rule by December 15, 2003.
       We make this request because of the seriousness of this 
     issue. Two major Environmental Protection Agency reports to 
     Congress document how hazardous air pollution from power 
     plants, most notably mercury pollution, contaminates our 
     lakes, streams, and other water bodies, concentrates in fish, 
     and causes serious health risks for pregnant women and 
     children who eat those fish. A Centers for Disease Control 
     and Prevention

[[Page 4650]]

     report in January 2003 found that one in twelve women of 
     childbearing age have mercury levels above EPA's safe health 
     threshold. In adults, exposure to unsafe levels of mercury 
     can adversely affect fertility and blood pressure regulation 
     and can contribute to heart-rate variability and heart 
     disease. The problem is nationwide: across the U.S., mercury 
     pollution alone has contaminated 12 million acres of lakes, 
     estuaries and wetlands (30% of the national total) and 
     473,000 miles of streams, rivers, and coasts (13% of the 
     national total). As a result, forty-five states and 
     territories have issued fish consumption advisories warning 
     citizens to limit how often they eat certain types of fish, 
     because the fish are contaminated with mercury.
       We would appreciate receiving a written response to this 
     letter as soon as possible, given that this is a time-
     sensitive matter and that the Senate may be considering your 
     nomination in the very near future. Thank you for your 
     attention to this matter.
           Sincerely,
     Henry A. Waxman,
       Member, U.S. House of Representatives.
     Patrick J. Leahy,
       Senator, U.S. Senate.
     Thomas H. Allen,
       Member, U.S. House of Representatives.
     Janice D. Schakowsky,
       Member, U.S. House of Representatives.
                                  ____



                                Congress of the United States,

                                     Washington, DC, May 21, 2003.
     Hon. Christine Todd Whitman,
     Administrator, Environmental Protection Agency, Washington, 
         DC.
       Dear Ms. Whitman: We are concerned by recent reports that 
     EPA has cancelled key analytical work intended to support the 
     ongoing rulemaking on mercury and other hazardous air 
     pollutants emitted by the utility sector (``utility MACT 
     rule''). The failure to conduct this analysis threatens to 
     derail this important rulemaking to reduce highly toxic 
     mercury emissions from power plants, as well as impair 
     congressional consideration of pending legislation to reduce 
     air pollution from power plants.
       It is particularly disturbing that the Bush Administration 
     may be seeking to delay the release of this information for 
     political reasons. Reports indicate that the analysis may 
     have been cancelled because it could undercut the 
     Administration's Clear Skies Initiative (CSI) by 
     demonstrating that implementation of the existing Clean Air 
     Act toxic air pollution requirements would produce greater 
     reductions in mercury emissions than CSI, sooner, and at an 
     acceptable cost. In the absence of EPA analysis, the 
     Northeast States for Coordinated Air Use Management (NESCAUM) 
     conducted an analysis, which indicates that recommendations 
     from all but one of the stakeholder groups would produce 
     greater reductions of mercury emissions and produce them 
     significantly earlier than would CSI.
       EPA should conduct timely analysis of mercury control 
     options identified by the utility MACT rule stakeholder 
     working group established by EPA. Absent such analysis, 
     neither the public, EPA, nor Congress will fully understand 
     the expected environmental benefits from reduced emissions 
     and deposition of mercury, nor the expected costs to install 
     and operate control technologies for the various options 
     under consideration.


                             I. BACKGROUND

     A. Mercury
       Mercury is a highly toxic substance. It is a potential 
     neurotoxin, and it is particularly damaging to the 
     development of the fetus. Effects from prenatal exposure can 
     include mental retardation, cerebral palsy, deafness, and 
     blindness. Even low-dose prenatal exposure can cause 
     persistent adverse effects on children's development, such as 
     delayed walking and talking and impaired learning abilities. 
     Adult exposure can produce sensory and motor impairment, such 
     as slurred speech, blurred vision, tremors, and memory loss. 
     In addition, several studies suggest that even small mercury 
     exposures may cause adverse cardiovascular effects. The 
     adverse effects of mercury exposure on birds and mammals 
     include impaired growth and development, behavioral 
     abnormalities, liver damage, kidney damage, and 
     neurobehavioral effects.
       Mercury exposure is a serious public health concern in the 
     United States. Forty-two states have issued fish advisories 
     warning against consumption of fish caught from various 
     water-bodies based in whole or in part on mercury 
     contamination. EPA has found that 8 percent of women of 
     child-bearing age in the United States--about 5 million 
     women--have blood mercury levels that would put children born 
     to them at increased risk of adverse health effects.
     B. Clean Air Act requirements
       Under section 112 of the Clean Air Act, EPA must require 
     sources of hazardous air pollutants to reduce emissions to 
     the maximum degree achievable through application of control 
     technology. These requirements are commonly referred to as 
     ``maximum achievable control technology'' or MACT standards. 
     For coal-fired power plants, the most significant hazardous 
     air pollutant is mercury. Pursuant to a court-approved 
     settlement agreement, EPA must issue a proposed MACT rule for 
     hazardous air pollutants from utilities by December 15, 2003. 
     Furthermore, EPA must finalize the rule by December 15, 2004, 
     and utilities must comply with the rule by December 15, 2007.
       This rule will for the first time require controls of 
     mercury emissions from coal-fired power plants, which are the 
     largest source of anthropogenic mercury emissions in the 
     United States and contribute approximately one-third of 
     annual mercury emissions.
     C. Stakeholder process
       Before beginning the rulemaking process, EPA recognized 
     that promulgating a utility MACT standard would be a 
     significant and potentially controversial rulemaking that 
     would attract substantial public interest. In June 2000, EPA 
     committed to solicit and consider the ideas and comments of 
     the groups affected by this regulatory process. Subsequently, 
     EPA has engaged in an extensive process to develop and use 
     input from states, tribes, local governments, industry 
     representatives, and environmental representatives throughout 
     the development of the rule. This process has been carried 
     out under the auspices of the Working Group on the Utility 
     MACT, formed under the Clean Air Act Advisory Committee 
     Subcommittee for Permits/New Source Reviews/Toxics.
       As stated in the charge to the Working Group, the overall 
     goal of the Working Group is to provide input to EPA 
     regarding federal air emissions regulations for coal- and 
     oil-fired electric utility steam-generating units that will 
     maximize environmental and public health benefits in a 
     flexible framework at a reasonable cost of compliance, within 
     the constraints of the Clean Air Act. The Working Group is to 
     ``conduct analyses of the information, identify regulatory 
     alternatives, assess the impacts of the regulatory 
     alternatives, and make preliminary regulatory recommendations 
     for the source category.''
       The Working Group has met 14 times to date. While the 
     initial intent was for the Working Group to develop consensus 
     recommendations, that did not prove possible. However, the 
     Working Group has done extensive work identifying technical 
     and policy issues, thoroughly discussing these issues, and 
     clearly identifying the various stakeholder positions on each 
     issue. In October 2002, the Working Group presented a report 
     to EPA laying out eight key issues for the rulemaking and the 
     stakeholder positions on each of these issues, including 
     recommended approaches for settling the MACT standard. Since 
     October, the Working Group has continued to build upon this 
     work, last meeting on March 4, 2003. Although EPA has 
     promised at least one if not more further meetings, none have 
     been scheduled to date.


                  ii. mercury control option analysis

     A. Purpose of IPM analysis of mercury control options
       Conducting an Integrated Planning Model (IPM) analysis of 
     the control options identified by the stakeholders is an 
     important step in the rulemaking process for the utility MACT 
     rule. IPM is an electric utility planning model that EPA uses 
     to estimate air emission changes, emission control technology 
     choices, incremental electric power system costs, changes in 
     fuel use and prices, and other impacts of various approaches 
     to air pollution control. IPM simulates how the utility 
     industry would respond to an air pollution control 
     requirement by selecting the least-cost compliance options 
     for a set of model plants representing all of the power 
     plants in the United States. IPM indicates where in the 
     country control technology would be applied, the resulting 
     emissions reductions, the costs of the technology, changes in 
     fuel use, any resulting shifts in generation costs, and other 
     effects.
       The results of an IPM run are then fed into EPA's air 
     quality models to project what a specified emissions control 
     requirement will produce in terms of air quality effects and, 
     in this case, the quantities and location of mercury 
     deposition.
       Every major EPA analysis of a rule or legislation related 
     to the power sector over the past eight years has relied upon 
     IPM analysis. These include the Ozone Transport Assessment 
     Group, process, the NOX SIP call, and most 
     recently CSI.
     B. Issues regarding IPM model's simulation of mercury 
         controls
       The Working Group process has addressed the need for 
     technical adjustments to the IPM model. In May 2002, EPA 
     heard recommendations from various members of the Working 
     Group regarding adjustments to the IPM model. In June 2002, 
     EPA issued a memo indicating how it planned to address such 
     recommendations and the timeframe for such actions. In July 
     2002, EPA received further feedback from Working Group 
     members on the proposal for addressing the recommendations. 
     For example, the environmental representatives made 
     recommendations for input assumptions on the effectiveness of 
     certain mercury control technologies, particularly when 
     applied to facilities combusting subbituminous and lignite 
     coals. They also urged EPA to update the model to

[[Page 4651]]

     incorporate the latest findings on control technology 
     demonstrations, particularly with respect to activated carbon 
     injection.
     C. Cancellation of planned IPM analysis
       EPA has indicated that the next step in EPA's intended 
     rulemaking development process is to analyze regulatory 
     alternative control options. The members of the Working Group 
     have expended substantial effort in developing their 
     recommendations for these options.
       Initially, EPA planned to conduct this analysis far earlier 
     in the utility MACT rulemaking process. The proposed 
     regulatory development schedule included in the charge to the 
     Working Group stated that EPA would conduct overall economic 
     impacts and benefits analyses of regulatory alternatives from 
     June through August 2002. After a period for the Clean Air 
     Act Advisory Committee to consider the alternatives and 
     provide recommendations to EPA by February 2003, the schedule 
     provided that EPA would select the proposed regulatory 
     alternative or alternatives in March 2003, and EPA would 
     draft and review the proposed rule from April through August 
     2003. OMB would review the draft proposal through November 
     2003, allowing the Administrator to sign the proposal by 
     December 15, 2003.
       While the initial target date for conducting this analysis 
     slipped substantially, as of earlier this year EPA planned to 
     conduct the analysis in time for the Working Group meeting on 
     March 4, 2003. When EPA failed to complete the analysis by 
     that date, EPA informed the stakeholders that EPA would 
     conduct the analysis prior to a scheduled April 15 meeting of 
     the Working Group. EPA said it would present the results of 
     this analysis at that meeting. EPA also stated that at that 
     meeting it would present to the Working Group the changes EPA 
     had made to the IMP model.
       Instead, EPA did not conduct the analysis and cancelled the 
     April 15 meeting. EPA still has not informed the Working 
     Group of how the agency has responded to the recommendations 
     for modifications to the IPM model that stakeholders made 
     during the summer of 2002, or of any other changes that EPA 
     has made to the model. EPA also has not scheduled another 
     meeting of the Working Group.
       In addition, there does not appear to be any internal 
     agency deadline for conducting the IPM analysis of utility 
     MACT options. Assistant Administrator Holmstead has 
     reportedly stated that conducting modeling for the CSI is 
     ``higher priority'' than modeling for the utility MACT rule.
       EPA's deviation from its announced plan to conduct this 
     important analysis is sudden and inexplicable. It is simply 
     not credible for EPA to point to resource constraints in this 
     instance, as Assistant Administrator Holmstead is reportedly 
     doing. While agency resources are undoubtedly constrained due 
     to the Bush administration's budget cuts, EPA is apparently 
     running the IPM model for CSI. There is no reason why further 
     analysis of CSI should take precedence over the utility MACT 
     rule. EPA has been conducting analyses of the CSI for over 
     two years, and the agency has completed dozens of runs 
     analyzing variations on CSI options. Yet to date, EPA has 
     released no analysis of the identified utility MACT 
     regulatory options, and it is unclear whether EPA has 
     conducted any analysis of these options. Moreover, there is 
     no legal deadline for additional CSI work, in contrast to the 
     utility MACT rules.
       Viewed in the larger political context, it appears that the 
     Bush Administration has a strong incentive to delay release 
     of information on the utility MACT regulatory options. The 
     Administration has been engaged in a public relations battle 
     to publicize and support its assertion that the CSI 
     represents an environmental improvement over, and not a 
     rollback of, the existing Clean Air Act. Most of the utility 
     MACT regulatory options identified by the stakeholders would 
     result in a greater quantity of emissions reductions and all 
     of them would produce these emissions sooner than CSI would, 
     if it is enacted. Information on the costs and benefits of 
     most of the utility MACT options seems unlikely to help the 
     Administration make its case for CSI.
       CSI is the Administration's own initiative, with no 
     deadline, while the utility MACT rule was required by 
     Congress under existing law, is already past the statutory 
     deadline, and is now required under a court-sponsored 
     deadline. There is no legal or policy-related justification 
     for deferring the utility MACT modeling in favor of CSI 
     modeling. To the extent that the modeling delay may be in 
     furtherance of the White House's political agenda, the delay 
     is even more troubling.
     D. Effect of continued failure to perform analysis
       At the point, EPA's continued failure to reconvene the 
     Working Group and to conduct the IPM analysis threatens the 
     timing and substance of the utility MACT rule, as well as the 
     achievement of significant reductions of mercury emissions 
     from power plants. This analysis is not a legal prerequisite 
     to EPA's identification of the minimum level at which it may 
     set the MACT standard (known as the ``MACT floor'') under 
     section 112 of the Clean Air Act, as the MACT floor is a 
     technology-based standard. EPA's failure to perform such 
     analysis would in no way justify delaying issuance of the 
     utility MACT rule proposal beyond the court-enforceable 
     deadline. Nonetheless, if EPA fails to complete this analysis 
     soon and falls further behind schedule in drafting the 
     proposal, EPA may well try to make the bootstrap argument 
     that the analysis is necessary and therefore the agency needs 
     more time for the rulemaking. Moreover, the IPM analysis will 
     provide critical information, both for understanding the 
     effects of the options recommended by the stakeholders and 
     for informing Congress regarding the level of mercury 
     reductions and environmental effects that may be achieved 
     under the utility MACT rule. In addition, EPA likely must 
     complete this or comparable analysis to comply with Executive 
     Order 12866 prior to issuance of the proposal.
       Considering practical constraints, it is clear that EPA is 
     already in danger of missing a court-approved deadline. 
     Working backward from the December 15 deadline, EPA must 
     provide the draft rule to OMB by the end of August 2003 to 
     allow OMB its mandated 90 days to review the draft prior to 
     issuance. As you know well, staff drafting and management 
     review commonly take many months, particularly for a 
     technically complex rule such as this one. Assuming a minimum 
     timeframe of several months to draft and review the rule 
     internally, it appears that EPA should begin this process 
     immediately, and certainly no later than June. Before the 
     bulk of the drafting begins. EPA management must select the 
     regulatory alternative to propose. To the extent that EPA 
     believes it would be helpful to have information on 
     technology options, costs, air quality and environmental 
     effects, and other factors, EPA must conduct the analysis 
     now.


                             III. QUESTIONS

       We would appreciate your response to the following 
     questions regarding EPA's planned activities on the utility 
     MACT rule:
       1. Is EPA committed to continuing the stakeholder process 
     for the utility MACT rule? If so, when will EPA reconvene the 
     Working Group and present to the Working Group a description 
     and explanation of any changes EPA has made to the IPM model? 
     If not, why is EPA abandoning this process for maximizing 
     public involvement in this controversial and important 
     rulemaking?
       2. Will EPA model mercury control levels identified by the 
     environmental and state stakeholders (as specifically 
     recommended in the Working Group report or as subsequently 
     updated by the stakeholders)?
       3. If EPA commits to complete this modeling, by what date 
     will EPA complete it and present the results to the 
     stakeholders?
       4. Is EPA committed to meeting the court-approved deadline 
     of December 15, 2003, for issuing the proposal regardless of 
     the status of EPA's modeling efforts? Please provide EPA's 
     current schedule (with dates) for completing: all analyses 
     EPA is planning to conduct; management decision on regulatory 
     options; a staff draft of the proposal; intra-agency review 
     of the proposal; and submission to OMB.
       5. In making the decision to postpone this analysis, did 
     EPA officials consult with Administration officials outside 
     of EPA, such as officials from the White House (including the 
     Council on Environmental Quality and the Office of Management 
     and Budget), DOJ, and DOE? If so, which entities were 
     consulted and what did they recommend? Did EPA officials 
     consult with any of the stakeholders represented on the 
     utility MACT Working Group? If so, which entities were 
     consulted and what did they recommend?
       We would appreciate receiving a response to this letter by 
     June 2, 2003, as this is a time-sensitive and urgent matter.
           Sincerely,
     Henry A. Waxman,
       Member, U.S. House of Representatives.
     Thomas H. Allen,
       Member, U.S. House of Representatives.
     Patrick J. Leahy,
       Senator, U.S. Senate.
     Janice D. Schakowsky,
       Member, U.S. House of Representatives.

  Mr. ALLEN. Mr. Speaker, one of the times that I raised this, the 
gentleman may be interested to know, was at a hearing before the House 
Subcommittee on Energy and Air Quality, and Jeffrey Holmstead, the 
Assistant Administrator For Air, came before the committee. I asked him 
this question. I said, have you done the modeling to do the MACT 
standard? In other words, have you done the scientific and technical 
analysis to come up with a mercury standard that is based on Maximum 
Achievable Control Technology, not on some idea that is dreamed up by 
the political people? And here is what he said, and I quote: ``We are 
doing all the analysis that we need to do to propose a MACT standard, 
to do a proposal on time by December 15, so we are on track to do 
everything we need to do, including the evaluation of options, to get 
the MACT standard out.

[[Page 4652]]

  Well, guess what? They did not. They did not have a MACT standard by 
December 15; they just had that old Clear Skies proposal which is, in 
my opinion, illegal under the Clean Air Act. And on Tuesday, Mr. 
Leavitt, the new EPA administrator, told the L.A. Times the process is 
not complete, nor is the analysis. Well, as my kids might say, duh, if 
you waste the year not doing the analysis, you will not have the 
analysis when it comes time to do the rule.
  Mr. Speaker, I yield to the gentleman from Maryland.
  Mr. VAN HOLLEN. Mr. Speaker, the gentleman is exactly right. I mean, 
the way most people go about planning when they are making major 
decisions is to take a look at the facts and then figure out what the 
policy is based on the facts, not to come down with a politically 
motivated policy and then try and make up the facts to fit that policy, 
and this administration has gotten in trouble in many ways with respect 
to that approach.
  You really do not want to make a mistake when it comes to something 
like mercury, because if you make a mistake now, it is something that 
is going to live with us for many, many years to come.
  Let us just take the Chesapeake Bay for an example. When it comes to 
nitrogen, when you are cleaning up nitrogen in the bay, if more 
nitrogen is going in today, and we take strong efforts, for example, in 
the bay watershed to get rid of that nitrogen, we can do it. We have to 
work hard to do it. Mercury, on the other hand, is something that stays 
in the ecosystem for a very long time. We cannot get rid of it 
overnight. And it stays in the ecosystem, it gets into organisms, it 
gets into fish and then, of course, it gets into the human food chain 
and gets into the food we eat, and then eventually can get into the 
brains of developing fetuses and of children.
  This is a very, very serious issue, obviously; and it is one where we 
want to make sure we get the science right, we do our homework before 
we leap off the cliff. I appreciate again my colleague, the gentleman 
from Maine (Mr. Allen), drawing the attention of this body to this 
issue. Hopefully, we will pull the administration back from the 
precipice on this and, more important than saving the administration 
from a bad decision is saving the American people from what could be a 
very, very serious health problem in years to come.
  Mr. ALLEN. Mr. Speaker, I thank the gentleman. I see we have been 
joined by my friend and colleague from Maine (Mr. Michaud). It is good 
to have the gentleman here, and I yield to him.
  Mr. MICHAUD. Mr. Speaker, I thank the gentleman for yielding, and I 
too want to thank the gentleman from Maine (Mr. Allen) for bringing 
this to the attention of Congress. He definitely has been a leader in 
environmental issues and prescription drug issues. I appreciate the 
gentleman's leadership.
  Mr. Speaker, today is March 18; and in my district in Maine, people 
who enjoy fishing are counting down on the days until they begin the 
fishing season. Again this year, as in the past, recreational anglers 
who fish in Maine's lakes will be unable to feed their catch to their 
children.
  Mercury has made fish unsafe for children and pregnant women. We have 
known for years that many fish caught in fresh water posed a risk to 
our health. Now, just recently, we have confirmed that the canned tuna 
fish that we buy in grocery stores should not be eaten in large amounts 
either. Due to their position downwind of many of the most offensive 
mercury polluters, the people in Maine by themselves cannot control the 
amount of mercury in their communities.
  As someone who enjoys fishing, I can say that the fishing in Maine 
remains some of the best in the country, but there was a time when it 
was not only about recreation; fresh water fishing also helped feed 
families.
  In my district, the Maine Environmental Health Unit has a 
responsibility to inform the public of this mercury problem. For 
children and pregnant women, they have set a consumption advisory of 
zero for nearly every species of fresh water fish in Maine. They have 
also issued the following warning to the public: ``It is hard to 
believe that a fish that looks, smells, and tastes fine may not be safe 
to eat, but the truth is that fish in Maine's lakes, ponds, and rivers 
have mercury in them. Mercury in the air settles into the waters. It 
then builds up in fish. Small amounts of mercury can harm a brain 
starting to form or grow. That is why unborn and nursing babies and 
young children are most at risk. Too much mercury can affect behavior 
and learning. It may cause numbness in hands and feet or change in 
vision.''
  Mr. Speaker, these words are not mine. These words are not political. 
These words are statements of scientific fact from an agency tasked 
with protecting our health. Mercury in our environment is dangerous to 
our health, and it is particularly dangerous to the health of our 
children. It is the responsibility of EPA and this administration to 
protect the public from mercury pollution.
  Why does the administration not propose real mercury regulations? 
Contrary to some claims, it is not because of fear of losing jobs. 
Enforcing the Clean Air Act and limiting mercury pollution will not end 
the business of generating power in the Midwest. In fact, when the 
administration eliminated air pollution controls in August, people with 
high-paying jobs, with good benefits were actually laid off because of 
pollution control equipment that they installed was no longer needed.
  The administration cannot outsource this problem. The responsibility 
to control mercury pollution is a challenge our country must face 
together. Recently we have heard reports from the Environmental 
Protection Agency that in creating its mercury proposal, usual EPA 
methods were not used. Sound science was not adhered to. Politics 
became more important than defending our health and our environment.
  When EPA policy is taken word for word from the industry letters, 
there is a credibility problem there. The result of this mismanagement 
of mercury by the administration is a mercury plan that may violate the 
Clean Air Act and does little to make real, swift reduction in mercury 
released in the environment.
  Because we have not stopped mercury pollution, the people of Maine 
continue to see their lakes and rivers polluted by a poison that cannot 
be controlled. The administration must understand that the American 
people expect the EPA to introduce a mercury rule that complies with 
the Clean Air Act and protects the health of our families. The 
administration must work with Congress to create an environment in 
which people can have good jobs, a clean environment, and a country 
where they can feed the fish that they catch to their children.
  Mr. ALLEN. Mr. Speaker, I thank the gentleman for his leadership on 
this particular issue.
  Before we close here, it is worth going back to that study I 
mentioned at the beginning. In February of this year, just last month, 
a new study came out which showed that of the 4 million babies born in 
this country every year, some 630,000 have been exposed while they were 
fetuses to levels of mercury in their mothers' body that are considered 
unsafe. Instead of dealing with that threat, this administration has 
written a proposed rule limiting mercury written by the industry 
lobbyists.
  What is happening is, now the EPA is going to go back and say try to 
do it over again, try to fix it up, but we do not know when they will 
do it or what they will do. This problem is growing. It is manageable.
  I said earlier that the technology is available today so that we 
could establish a rule to phase in mercury pollution control equipment; 
we could have that rule take effect in 2007. The industry would have 
time to make the changes. Ninety percent reductions in mercury 
emissions today are feasible, they are possible, they can be done. The 
only resistance is coal-fired power plants do not want to spend the 
money. So on the one hand, we have the interest of an industry that 
have been

[[Page 4653]]

major, major contributors to the majority party here and, on the other 
hand, the health of our children. It is, or ought to be, a simple 
choice. And we are here tonight to make sure that people understand 
that choice and encourage policymakers here to make the right one.

                          ____________________