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.
