FEDERAL
COURT ORDERS BUSH ADMINISTRATION TO TURN OVER KEY DOCUMENTS
ON MERCURY
April 13, 2006
CONTACT: SARAH NATHAN
(617) 727-2543
BOSTON
-- Federal Magistrate Judge Robert Collings has ordered the
Environmental Protection Agency (EPA) to release key documents
relating to the regulation of mercury emissions from power
plants, Attorney General Tom Reilly announced today. Power
plants are the largest producers of mercury, which poses serious
neurological risks, especially to children and pregnant women.
Last
year AG Reilly joined with several other state AGs in challenging
a new EPA mercury emissions trading program for power plants,
arguing that it is inadequate and inconsistent with the Clean
Air Act. (The case is pending in the U.S. Court of Appeals
for the D.C. Circuit). In March of 2005, AG Reilly filed a
separate suit against the EPA in Massachusetts federal district
court, seeking the release of information about potentially
more effective regulatory alternatives to the agency’s proposal
that the agency refused to release.
In court
filings, the EPA argued that it had no obligation to disclose
the requested information under the federal Freedom of Information
Act (FOIA) because the documents reflected the agency's "deliberative
process." AG Reilly argued that the agency did not have
grounds to withhold the information and that the agency's
refusing to turn over the documents was part of a disturbing
larger practice of trying to hide facts from the public. Today
Magistrate Collings ordered the release of the documents.
"We will now be able to see the documents that the EPA
has tried to keep hidden," AG Reilly said. "By making
the facts available, the public will now be able to understand
the choices the EPA is making and whether the agency is meeting
its important responsibility to protect the public health
and welfare."
The proposed
mercury emissions program has been called into question by
the EPA's Inspector General (IG) and the Government Accountability
Office (GAO), which both issued reports questioning the EPA's
use of data, according to the complaint that AG Reilly filed
last year. In February of 2005, the EPA's IG issued a report
concluding that the mercury rulemaking process had been compromised
by a bias on the part of senior management at the EPA who
favor the emissions trading scheme. The IG's report also concluded
that the EPA selected the data that favored the trading program
and suppressed data that favored the alternate approach.
In March
2005, the GAO released a report finding "four major shortcomings"
in the EPA's analysis of the mercury proposal. The report
found that while the EPA told GAO officials that the agency
analyzed a cap and trade model as well as a technology-based
option, it did not provide adequate documentation of the technology-based
option.
While
the EPA claims that their trading scheme will reduce emissions
by 70 percent by 2018, there is significant evidence in support
of much more stringent standards. Massachusetts, for example,
already has regulations in place requiring an 85 percent reduction
by 2008.
In 2002,
after acknowledging the need to perform additional computer
simulations and committing to do so with inputs provided by
an outside advisory group, the EPA, without explanation, disbanded
the working group without providing the data.
In an effort to determine what was behind the EPA's actions,
AG Reilly in 2004 requested that the agency release documents
related to computer-generated forecasting of industry decision-making.
The EPA refused to disclose broad categories of documents,
asserting that they were exempted from disclosure under the
"deliberative process exemption." In July 2004,
AG Reilly filed an administrative appeal challenging the EPA's
claim.
In December
of 2004, EPA provided more information about the documents
in question. EPA acknowledged that these documents include
additional simulations under alternative scenarios. EPA nevertheless
reaffirmed its refusal to disclose the documents.
Assistant
Attorney General William Pardee of AG Reilly's Environmental
Protection Division is handling this case.
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