Senate Democratic Policy Committee Hearing

"An Oversight Hearing on the Administration's Mercury Pollution Rule"


Tuesday, April 19, 2005


    This hearing of the Democratic Policy Committee will come to order. I'm opening the hearing while we wait for Senator Leahy to arrive, because we have the Bolton meeting of the Foreign Relations Committee shortly, and I need to be there.

    But let me just say, I'm confident that Senator Leahy will have his own remarks about why we're here.

    But this is a hearing that the United States Senate ought to be conducting as the full Senate. And this is a hearing that the Senate ought to be conducting under the auspices of its committees.

    But what has happened in the Senate, and in the Congress in the last years is that it's walked away from its oversight responsibilities. Perhaps that's the price you pay when the White House and both houses of Congress are in the control of one party.

    They don't like to hear bad news, and they want to do only what they want to do for their friends. And the result is that we all pay an enormous price.

    The price is being paid in the quality of the air we breathe and the health of our children, in the longevity of lives, and in the long run in our leadership, not just here at home, but on a global basis. And it's a high price.

    The fact is that the rule that has been put out with respect to mercury by the Environmental Protection Agency is hardly the kind of protection of the environment or of people that we've come to expect and ought to expect from that agency.

    The two rules that they've put out change the existing law and existing rules. And they take us backwards -- backwards on the quality of air and backwards on the protection of our citizens.

    One rule, the EPA position the rule put into effect in the year 2000, said that we ought to make what's necessary and appropriate to require each power plant apply the maximum achievable control technology to reduce mercury emissions.

    Now, what is wrong with the standard of necessary and appropriate to reduce mercury emissions is beyond me. But the industry has come in and forced a change that will slow down the rate at which we are reducing mercury, so that citizens will be exposed to it for a longer period of time.

    I have to just say that I think that those who are walking backwards are misreading the American public, and they're misreading the desires of parents all across our country.

    I was privileged to hear those desires expressed to me on a daily basis for almost two years in state after state. People are deeply concerned about what is happening to their bodies, to their lives, to their health as a consequence of environmental input.

    And when fathers across America take their kids fishing, but can't risk cooking the catch for dinner -- or mothers -- when parents can't take their kids fishing and hope to eat the fish, if they're lucky enough to catch them, because of the risk of mercury contamination, that's a health issue.

    When expectant mothers can't trust the tuna fish sandwich that they're eating, because it might someday lead to seizures in a child, or to other health problems reflected in learning disabilities, we have a public health problem on our hands.

    When teachers are seeing increases in learning disabilities around mercury hotspots, we have an education and a public health issue staring in our face.

    And what's most troubling is, this city, the nation's capital, the United States Congress is not being honest about it. In this city it's almost become standard fare for honesty to be sacrificed for political expediency.

    We saw it when the president's budget leaves out literally trillions of dollars in spending, including something as fundamental as interest on the debt.

    We see it when a Medicare actuary is forced to fudge the numbers and lie to the Congress in order to keep his job. We see it when the falsified numbers in Iraq on everything from the cost of the war to the number of trained Iraqi troops. And we saw the fake newscasts produced by the Bush administration and funded with taxpayer dollars.

    But now, with our children's health on the line, we're reading headlines like "New EPA Mercury Rule Omits Conflicting Data." That's a nice way of saying that the agency in charge of environmental protection buried a study that proves proposed mercury regulations don't do enough to keep our children safe from cerebral palsy, from the risk of seizures, from learning disabilities.

    I ask you just to consider some of the facts on mercury. The U.S. EPA identified mercury as the toxic of greatest concern among all other air toxics released by power plants.

    A January 2003 report from the federal Centers for Disease Control and Prevention concluded that one in six women of childbearing age have mercury in their blood above the level that would pose a risk to a developing fetus.

    In adults, mercury exposure can cause irreversible damage to the brain and cardiovascular system.

    At least 44 states in our country have issued warnings urging residents to avoid or limit their consumption of mercury-laden fish caught in local waters. And the federal government has recommended that children and women of childbearing age eat no more than two meals of low-mercury fish per week and avoid eating certain fish altogether.

    I know as a fisherman that tuna and swordfish and other deep sea fish are now showing increasing quantities every year of mercury contamination. And in over 28 states in our country, you not only don't have warnings, you're told don't eat the fish at all.

    Over 50 percent of the states in our country, the rivers, streams and lakes are so polluted, you can't eat the fish at all.

    Yet this administration wants to go backwards. This administration wants to hide the truth.

    Every year more than 600,000 babies are born with dangerously high levels of mercury in their blood.

    We live with this every day in New England. The Merrimac River Valley in Massachusetts and New Hampshire, and also the Penobscot River area in Maine, have been classified as bio hotspots due to dangerously high levels of mercury.

    Still, year after year, strong mercury rules fail in Washington under pressure from corporate interests.

    Why? Not because the risks of mercury poisoning aren't real. No. Just because lobbyists for big industries say they can't afford to make the changes, and they prey on the members of the other party to vote with them.

    But the study commissioned by the administration actually made it clear. And I want to emphasize this. The study that they want to hide, commissioned by this administration, actually makes it clear that you can't afford not to take steps.

    The report estimates that the health benefits of nearly $5 billion could come to us from reducing mercury emissions to a safe level of 15 tons. This health benefits analysis, which is the key to any kind of sound rulemaking, should have sounded alarm bells at the EPA and throughout the Bush White House.

    The need for change is clear. But the fact that the report was not even considered only raises more questions about what other information has been disregarded by the administration.

    The mercury issue, like so many others, shows not only a dangerous lack of candor and honesty by our government, but it shows that in making public policy to protect the health of our kids, Washington has simply lost its sense of right and wrong.

    It's wrong to keep the truth from the American people. It's wrong to keep fundamental information, even if it's conflicting, from the American public. It's paid for by the public's tax dollars. And the public has a right to this information.

    It's wrong to make decisions while ignoring important data. It's wrong to give industry a free pass when our children pay the price.

    The Harvard report was not a rogue study. It was commissioned by the EPA and financed by taxpayer dollars.

    This administration just didn't like the results, so they hid it away.

    Taxpayer dollars were well spent, because the study helps confirm that mercury pollution can and must be controlled to better protect the health of our children. At a minimum, we ought to demand that the Harvard data be given a fair hearing.

    We're here today to give a hearing, to do what Congress ought to do, which is gather information and making rules, and gather information and the truth in making legislation, and in making sure that the American people have access to it.

    So it's time for the EPA to come clean, time to halt the implementation of inadequate mercury rules and rewrite them based on groundbreaking research that should have been taken into account long ago. I think that's the very least that Washington can do to protect our children.

    Obviously, there are so many other environmental issues in which we're going backwards -- forest policy, roadless rules, air quality as a whole, the new source performance standards, the question of oceans and water pollution, the facilitation of clean water strategies within local communities that can't afford it on their own, combined sewer overflow problems.

    You know, you can walk down to the Potomac River here, or any other river, and see signs warning you against touching the water after a rainstorm, because of the overflow.

    All of this is America's infrastructure. And all of this represents America's future. And what we need to do is guarantee that we open the future up to the truth, as it ought to be.

    So, I'm glad to have been able to share a few thoughts on specifically the issue of the mercury pollution.

    And what I'd like to do, ask Katy McGinty, if she would, the Pennsylvania Department -- Secretary of the Pennsylvania Department of Environmental Protection, if she would start now as the first panelist, since we're waiting for other senators to get over here.

    Let me welcome Katy back here. I'm thrilled to see you here, Katy. I've had the privilege of working with Katy when she was working with the White House and with Senator Gore and with Vice President Gore.

    And she has long been one of the most thoughtful, and I hope -- think -- and I think -- oh really?


    Yes. We need to go and vote.


    Oh, OK. All right. We'll do that.


    All in (inaudible).


    No, it's -- sorry. But none of that is a rethinking of my marvelous introduction.


    I just want to hear it again. We can...


    I know, I know.

    I had the great pleasure of working with Katy, and she does just a spectacular job. And Pennsylvania is really lucky to have her working in that capacity. And the governor is smart to have harnessed your talent and put you to work in that capacity.

    What we're going to do, Katy, because apparently another vote has been scheduled. There's a little bit of a parliamentary morass going on over the subject of the Bolton -- of whether we're going to have the hearing or not have the hearing, and be in session or not be in session.

    So, if you all could bear with us a little bit, I think what we'll do is recess until one of the other senators can get over here. And I appreciate your indulgence. Thank you all very, very much.

    So, we stand in recess.





    Good afternoon. I apologize that this is somewhat confused, because we have votes that were unexpected that we have to be present for. I will have to leave shortly myself to go back for the second vote.

    But this is such an important issue. And I wanted to make my statement, be sure it's in the record, so that the strong views that I hold on this matter will be part of the permanent record of this hearing.

    I obviously want to thank Senator Dorgan for scheduling this hearing, and Senator Jeffords for once again assuming leadership on an important issue that really concerns the intersection of protecting our environment and our health.

    I and other members of the Environment and Public Works Committee have consistently asked Senator Inhofe, the chairman, to hold an oversight hearing in the EPW committee, which would be the appropriate, official place to hold such a hearing. But this request has not been granted.

    So, while we will not be able to question the administration today, we are fortunate to have some of the country's foremost legal and scientific experts here to testify about the dangers posed by mercury, both to human beings and to wildlife, both to plant life and to the overall environment in which all of us live and breathe.

    The failure of the administration's rule to reduce these dangers is what precipitated this hearing. But this has been an issue of longstanding concern to many of us.

    I'm particularly pleased that Dr. Leo Trasande of Mt. Sinai is on the second panel. I want to welcome him and I look forward to his testimony, because, of course, he is not only in New York, but very ably served as a fellow in my office.

    I also want to thank and recognize Katy McGinty, who is here. She was head of the Council on Environmental Quality during the Clinton administration, and I'm delighted to see her again, once more advocating about what we need to do concerning these dangers we face.

    I also welcome all the other witnesses on both panels.

    I want to make just a few, general, brief statements and focus on why this is such an important issue to New Yorkers, but to all Americans -- all human beings -- as well.

    I think the reason we're here is very simple. Mercury is a poison.

    We have strong evidence that exposure to this potent neurotoxin in the womb can have negative impacts on a child's cognitive thinking, memory, attention, language and fine motor and visual/spatial skills.

    Recent studies suggest that as many as one in six women of childbearing age have mercury in their blood at a level that could lead to these adverse effects in their children.

    This public health threat directly affects individual children and their families. But it also has impacts on society as a whole.

    As Dr. Trasande will testify today, New York's Mt. Sinai Center for Children's Health and the Environment concluded that lower IQ levels resulting from mercury exposure cost the United States $8.7 billion a year in lost earnings potential.

    So there is no dispute that emissions of mercury from power plants and other sources are contaminating our food and putting our children at risk of developmental disorders.

    Unfortunately, this administration's approach to regulating mercury followed an all too familiar and depressing pattern.

    The administration consulted with industry to determine what the targets and timelines for mercury reductions should be. They then instructed EPA analysts to work backwards from these industry-chosen targets to produce economic and scientific analyses to support them.

    And they ignored the law in designing a cap-and-trade system for mercury instead of requiring plant-by-plant mercury reductions. The end result of this process? Power plants get at least an extra decade to continue to spew mercury pollution while mothers and children and wildlife and the environment will pay the price.

    The administration's justification of this rule has largely relied on their assertion that most mercury exposure comes from eating ocean fish, such as tuna, and that reducing U.S. power plant emissions of mercury will have only a small effect on levels in such ocean fish.

    I want to take this issue head-on, because it is dead wrong.

    I think the response to that specious argument is simple and obvious. Yes, global mercury emissions must be dealt with. It would help if we were actually engaged in an international effort to deal with such mercury emissions, but we are not.

    So, it's a circular argument. The administration says the real problem is foreign pollution, ocean fish. Why don't they do something about that? But, obviously, they are only interested in cutting some slack for the principal polluters here at home.

    So, yes, we should be addressing global mercury emissions. But if we don't clean up our own act, how can we expect other countries to follow suit?

    Rather than leading the international community toward a binding agreement to reduce global mercury emissions, the administration points out the futility of acting alone as justification for putting out this weak mercury rule.

    But in reality, the administration does not even support an international agreement. They scuttled such an agreement at the 23rd session of the UNEP Governing Council in Nairobi, Kenya in February. In essence, the administration has argued that acting alone will not be effective. At the same time, they were working to undermine international action to reduce global emissions.

    In addition, I want to point out that not all mercury exposure comes from ocean fish. Just last Friday, the New York State Department of Health greatly expanded its fish consumption advisory. The new advisory basically says that you should not eat any fish caught in the Adirondacks or Catskills, because of the dangers posed by mercury contamination.

    Each year, the mercury consumption advisories in New York have become more and more comprehensive. The expansion in the advisory simply reflects expanded testing. Mercury turns up in fish in unhealthy levels almost anywhere you look in New York, and in many other places across the country.

    And we know from EPA's own models, that between 30 and 60 percent of mercury deposition in New York is from domestic sources, with power plants being by far the largest domestic source.

    Requiring steeper mercury reductions from power plants might, indeed, have modest impacts on concentrations in tuna, but it would certainly help reduce concentrations in freshwater fish in New York and elsewhere around our country.

    In conclusion, I want to reiterate my call on the administration to revise the rule immediately, in a way that is truly protective of human health and is in accordance with the Clean Air Act, which, after all, is the law of the land, despite this administration's consistent efforts to undermine or replace it.

    I have to say that it is very saddening to me that we have to hold this hearing as part of the Senate Democratic Policy Committee. This should be an oversight hearing held by a formal committee. There should be hearings in both houses of Congress. This is not a partisan issue.

    I don't think that pregnant women who have the increased levels of mercury in their blood are really concerned about whether they're Democrats or Republicans. They're concerned about their babies.

    I think that people who love to fish, not only in the Adirondacks or the Catskills, and have always over the years looked forward to bringing those fish home and cleaning them and eating them around the campfire or the table with their family and friends, don't really care whether it's a Republican or a Democratic policy.

    They're asking, why are we permitting this toxic poison to be disseminated for years more with very little action being taken to prevent and eliminate the sources?

    It kind of goes with the territory these days, though. This administration has made a determination that the environment of our country, the health of Americans, must take a backseat to the economic interests of various industries, and most particularly the power industry.

    This does not have to be a zero sum game. This does not have to be either you choose power sources, you choose the economic necessity of having power generated, or you choose the environment and health. That's the kind of old thinking that really needs to be left behind.

    There are win-win approaches. But thus far, at least, the administration is just not willing to work with many of us to do whatever we can to limit and eventually eliminate the mercury in our air and our water and our fish, and give our children a healthier future.

    So, thank you for being here today. I will recess the hearing at this moment, because we're waiting for others to return from having cast their votes. I have to go back and cast a vote on the second measure that's before us.

    But I really appreciate everyone who came here today. And I particularly appreciate the scientific-based testimony, the research and evidence that you bring to this committee.

    I worry that there is a concerted effort to turn Washington into an evidence-free zone, where evidence doesn't matter, only ideology and special interests that have the ear of those in power.

    That's a very unfortunate development. And it does not do credit to any of us who are here in a decision-making role.

    Being an optimist, I hope for conversion and change. So, anything we can do to get information out, to get evidence out, will help us strengthen our argument and try to make the case to the administration, to those on the other side of the aisle, that this is not the way to deal with this very important, toxic poison. And we can do better.

    Thank you all very much. And the hearing will be in recess until we can get back to conduct it. Thank you.



    I'm going to take an opportunity to keep the program moving a little bit, and to give an opening statements.

    I shall not deprive the chairman from knowing what I said, so I'm going to give them copies of the remarks.

    And will simply say that I'm pleased that this hearing is taking place, because, given the unwillingness of the majority in Congress to discharge its oversight responsibility with regard to the administration, I appreciate the fact that the Democratic Policy Committee is stepping up to fill the void.

    Now, the subject is a very important one. We're discussing the mercury rule. And we see here a classic example of why the founding fathers thought it would be necessary for the legislative branch to keep its eye on the executive branch.

    This rule will allow aging power plants to continue spewing toxic mercury into the air that we breathe. It represents all of the worst practices of this administration over the last 3.5 years, where industry lobbyists who were brought in to write parts of the rule. The Federal Advisory Committee was ignored to an unprecedented degree.

    The science was twisted, distorted. The stakeholder group formed to develop the rule was totally sidelined. Science-based health warnings were watered down. And thousands of public comments were completely disregarded.

    The impacts of this rule will have serious and lasting health consequences, especially for newborn infants and small children.

    The EPA -- the Environmental Protection Agency -- is supposed to protect the environment. But this proposed rule will weaken and delay our efforts to clean up mercury emissions from the nation's 400-plus coal-fired power plants, the nation's largest -- which are the nation's largest unregulated source of mercury.

    From the beginning, the administration turned EPA's established process of rulemaking on its head.

    One senior EPA management told a member of my staff -- and here I quote -- that it's a lousy rule. It's a lousy rule for families. It's a lousy rule for kids. It's a lousy rule for pregnant wives.

    Who is it good for? The polluters. That's who it's good for. It enables them to procrastinate with the necessity to get things onto a better level, to reduce the mercury content in our environment.

    So, it's good for them, but it's terrible for everybody else.

    The development of this rule has been driven purely by politics. Crucial decisions affecting human health and our environment have been made not by the EPA's top scientists, but by the political operatives in the White House.

    Both the EPA inspector general and the Government Accountability Office published reports stating that politics trump science in the writing of this rule.

    So, I am clearly upset about it. Regretfully, my home state of New Jersey is among the states with the worst mercury contamination.

    Fish advisories are posted for all of our lakes and rivers. In New Jersey, 1.7 million children live within 30 miles of a power plant, the zone where the health threat is the greatest.

    And every year, between 11,000 and 24,000 newborns in New Jersey are exposed to unsafe levels of mercury, because their mothers' bodies are contaminated. And these babies have a higher risk of spending the rest of their lives struggling with learning disabilities and other complex brain disorders.

    And the rule will surely make it worse. It will allow mercury emissions in New Jersey to increase by 56 percent between the years 2010 and 2017, according to one analysis.

    And this isn't the legacy that I want to pass to future generations, not the legacy that we want to pass to future generations. And this is a problem that we know how to solve.

    Fortunately, New Jersey is also a leader in developing regulations to reduce mercury emissions in human exposure. But our state can only accomplish so much on its own. More than 30 percent of the mercury deposited in New Jersey floats in on the jet stream from power plants in the Midwest -- outside of our state and beyond our control.

    And I'm pleased to see our chairman here. And I'm pleased that we are convening this hearing, so that the Senate -- or at least part of the Senate -- can carry on its constitutional duty to provide oversight of the executive branch.

    And I believe that I speak for the senators who will be gathered here, that I'm committed to doing everything I possibly can to continue the fight for the health of our children. What else are we here for? It's to protect those who are going to lead the country in the future, who are going to depend on the environment for much of their health needs.

    So, I thank those, Mr. Chairman, who will be testifying here today to help us in that fight. And I know of your interest in the environment, coming from the state that you do, where so much is dependent on the environment. And I'm not just talking about business. I'm talking about culture and a way of life.

    And as you know, I've spent a lot of time in Vermont, and greatly appreciate what the state does. And happy to be here with you for this hearing.


    Well, I would thank my good friend from New Jersey. There's nobody's record on the environment that surpasses his in the 31 years I've been here. And I know how much we've appreciated the times he's spent in Vermont.

    And when I talk about the 31 years, I think of the bipartisan work that produced the Clean Air Act. My predecessor, senior senator from Vermont, Bob Stafford, who was one of those Republicans who helped put it together.

    And I think of the 1990 amendments. Those started us down the road to cleaning up the toxic mercury that's spewing out of dirty power plants across the country.

    Unfortunately (ph), it's fallen to this committee, almost in an ad hoc way, to fulfill Congress' oversight role.

    You know, we have an oversight role. And it means that no matter who you have for an administration, the Congress is supposed to do an independent oversight.

    But apparently the Republican leadership does not want to shine any daylight on this flawed rule. If they did shine daylight on the rule that's before us, they'd find the industry's fingerprints all over it.

    They'd find a process where the public was shut out, where scientific and economic analysis was manipulated, and where public health was ignored.

    The EPA's inspector general -- the Bush administration's own EPA inspector general -- and the Government Accountability Office criticized almost every aspect of how EPA drafted this rule. It made it very clear the fix it was in (ph). But their recommendations to improve it were also ignored.

    So were more than 680,000 public comments -- incidentally, that's a record for an EPA rule. So were the comments of many state environment departments, attorneys general, doctors, educators, sportsmen's groups and EPA's own advisory committee.

    They were all turned down. For that matter, 45 senators and 184 House members were ignored.

    Now, many of us here today have spent the past year -- we've worked with three different administrations, trying to make the administration follow the Clean Air Act, and produce a rule that goes as far as public health demands, technology permits. It's failed.

    Instead, the administration produced a rule that'd do nothing for at least 10 years.

    According to their own analysis, we're going to be lucky if one percent of power plant capacity would have mercury controls on it by 2015, only three percent by 2020.

    Their own analysis showed there's a need for quick action. They ruled -- the administration ruled it's neither necessary nor appropriate to regulate mercury from power plants.

    It's hard to think they can say this with a straight face. Ask any woman of childbearing age what she thinks of this. Ask anybody with young children, or are blessed with grandchildren, what they think of that. And they can't accept it.

    If you look at this map, as somebody point out, the area that Vermont is, which is right in the very darkest area. You can see why we worry. You don't even -- on this map, which shows mercury deposition in the United States, you can't even see Vermont. We have to point it out, because of all the mercury pollution that's being dumped on us from upwind power plants.

    And we Vermonters -- Republicans and Democrats alike -- have been waiting for decades for the EPA to do something about this.

    So, as a father, and blessed to be a grandfather, I know it's necessary and appropriate to act now.

    The chart shows the agency's own estimate of the number of newborns at risk of elevated mercury exposure has doubled to 630,000. They found that one in six pregnant women has mercury levels in her blood above the EPA safe threshold.

    Think of that. One in six pregnant women. Mercury levels above EPA's safe threshold.

    So, I don't want to hear talks about family values, when all it is, is a re-election commercial. I want to hear them talk about family values when they have to face down some of the industry lobbyists and those who have contributed to their campaigns, who say leave these mercury -- leave this mercury in here.

    You know, it's not a family value to tell a whole generation of women their health is not important. And it's not a family value to put another generation of young children at the risk of learning disabilities.

    That's what these gutless mercury rules do.

    Now, apparently, my colleagues, who during the Clinton administration were willing to call an oversight hearing, 12 a day, for whatever it might be, somehow feel that when the women and childbearing women, and the children of this nation are being polluted, and are being poisoned, that we can't have a hearing, because some of those who have supported them in the industry say no. It's terrible to see that kind of veto.

    Jim, did you want to say (inaudible)...


    ... (inaudible) for us to alert to world, and not only (inaudible) our country, but everyone. That's the seriousness. And there's problems that we have with mercury.

    We are here today because the Bush administration and the Republican leadership in Congress have the wrong priorities. They are supporting the big energy companies and their anti-regulation, anti- oversight agenda, instead of protecting the environment and the public health of the nation.

    They want to delay controls on mercury pollution from old, dirty power plants for decades. They want to tear apart and undermine the steady progress that this country has made under the Clean Air Act.

    In the Republican House Energy Bill, they want to leave millions of people breathing dirtier and more dangerous air, for longer than the law allows.

    But this isn't just about protecting the MTBE manufacturers from tens of billions of dollars in liability for cleaning or (ph) groundwater contamination across the country, or the rest of the regressive House Energy Bill.

    This is about wrong priorities. How else can you explain a mercury rule that says it is no longer necessary and appropriate to reduce the toxic poison mercury from every power plant as soon as possible.

    That kind of approach defies common sense. We have the technology how now to reduce mercury pollution. That technology will get even better with strong regulation.

    Unfortunately, that is exactly what the Bush administration's mercury rule is not. This rule is weak and illegal, and was largely written by and for industry lobbyists.

    This rule will likely increase the number of children who are exposed, prenatally, to a mercury in some states. This exposure will lead to reductions in the IQ, and harm our society and our economy.

    This is not public health protection. This is help sabotage for the sake of the polluters and profits.

    But it is not just children who will suffer under the Bush mercury pollution approach. Sound science and good government are suffering under the administration.

    This administration has failed miserably to consider the true costs and benefits of their own regulations, including important studies and scientific information that will be presented here today.

    Instead of acting aggressively to control mercury pollution in the United States, the Bush administration just blames the U.S. contamination on international sources.

    This is just another excuse for delay, since we know there are substantial benefits from domestic action. And this administration has done little or nothing to control those international sources.

    Wildlife and the environment are also going to continue to suffer longer under the administration's rule.

    A recent study by the Biodiversity Research Institute shows increased mercury levels in the Bicknell's thrush, a songbird that lives in the highest parts of the Green Mountains of Vermont.

    These birds don't eat fish. They eat insects that eat leaves. That is a new and dangerous pathway for mercury to get into all living things.

    This thrush may be the canary in the coal mine. This bird is a sign that we have far more toxic hotspots in vulnerable ecosystems than anyone thought. Mercury may well pose as much of a threat as that other dangerous, heavy metal, lead.

    I look forward to hearing the testimony of our witnesses today. I appreciate their willingness to be here to describe to the American public just what a travesty and a tragedy this mercury rule is, and what its effect will be on the human and environmental health.

    Finally, I should note that this hearing would be most appropriately held in the Senate Environment and Public Works Committee. We have a request for such a hearing more than a year ago. Since then, we have renewed that request.

    In addition, the EPA inspector general and the Government Accountability Office have been severely critical of the administration's process on drafting the final mercury rule. There has been silence today in response to our request, though I understand the majority of EPW may now finally be interested in holding the hearing.

    I hope that hearing happens, and it looks into the major defects, the junk analysis and the improper process that has been followed in the mercury rule. That would be a worthwhile hearing.

    Thank you, Mr. Chairman.


    I'm going to put a statement by Senator Kohl and Senator Feingold in the record, and should note that they welcome George Meyer, the Wisconsin Wildlife Federation is going to be here.

    And I'd ask that Kathleen McGinty and Praveen Amar come up, please.

    Of course, it's nice to see Ms. McGinty back. I remember 10 years ago we fought to get that mammoth mercury report to Congress. I thought probably the closest I'd ever come to knowing what it's like to give birth. But it was -- my wife assured me I have no idea.

    Welcome to you both. And, Ms. McGinty, please feel free to go ahead, and then Mr. Amar.


    Thank you, Mr. Chairman, and members of the committee. It is a pleasure to be here, and especially to see you continuing in your strong leadership on behalf of the American people.

    I, as representative of the State of Pennsylvania today, am especially pleased for this opportunity, because the rule that is before us and the subject of the hearing, is not only severely injurious to our environment and to the health and wellbeing of the citizens of Pennsylvania, but it also deals an almost inexplicable blow to our economy.

    So, it is both bad for our environment, for public health, as well as for our economy.

    I thought, in the interest of time, I would just make four points along these lines.

    First and foremost, in terms of public health, you've said it better than I can, and some of the expert witnesses will be able to echo your comments, the data, the statistics that you offer.

    Mr. Chairman is correct. It was an 1,800-page baby that was delivered. It established clearly, as the Congress had identified in 1990, that mercury is an acute neurotoxin. It is extraordinarily dangerous and especially to young, quickly-developing children. And so, it should therefore be especially concerning to us.

    Senator Leahy, picking up on one of your comments, I would just say on this, as a person of faith, it is troubling to hear talk about a culture of life, but not to see action that matches that professed talk. So it is very troubling to me.

    So, first point, public health.

    Second, trading. I want to underscore for you that the State of Pennsylvania does not appear here today as an opponent of trading. In fact, the strength of our opposition to this rule is specifically because we support trading and market mechanisms in their appropriate context.

    All of you were involved in first putting that appropriate context in the Clean Air Act, in the acid rain program. For those who worked hard to say that market mechanism can advance the environmental agenda, we have to stand up when others would abuse those mechanisms, and apply them, as here, to acute neurotoxins very capable of creating dangerous hotspots, therefore undermining the credibility, the integrity of using trading where appropriate.

    So, second point, this is about trading and is about risking those very same market mechanisms that this administration does claim to embrace.

    Third, we actually question whether or not the professed emission reductions will be realized. First, the State of Pennsylvania did argue, as you're articulating here, that the appropriate approach for mercury is through a technology standard, a maximum achievable controlled technology approach. That obviously was rejected.

    But it is important to note that in the trading approach that was taken, it presents a very real concern that emissions will be much higher than the agency is reporting. And specifically, the reason is that the rule sets up different categories and different sets of requirements for mercury control, depending on the type of coal that is in question.

    Pennsylvania, Ohio, West Virginia, Kentucky -- we are states that produce bituminous coal. The rule says we have to achieve a standard tougher than sub-bituminous. Now, that calls into question whether or not we will reduce emissions to 38 tons for two reasons.

    First, states and companies are therefore provided an incentive to switch away from Pennsylvania, West Virginia, Ohio, Kentucky coal, towards coal produced in the western United States. That's a problem, because this rule basically says that that coal does not need to be cleaned up hardly at all.

    We question whether the numbers take into account this fuel switching that very well may happen.

    The second reason it's a big problem is because bituminous coal -- Pennsylvania coal -- also has more chlorine in it than western coal. And what that means is, it is more efficiently cleaned out of coal exhaust than western coal is.

    So when you put control devices on, eastern coal is cleaner from a mercury point of view than western coal is. The administration's deliberate prejudicial treatment of eastern coal means that we will lose market share to relatively dirtier western coal as it relates to mercury.

    Last piece is the economic piece related to the fuel switching. We also appear before you -- the State of Pennsylvania -- not as an antagonist to coal. We are asking for tougher standards, specifically because our industry will suffer with weaker standards.

    This is a perfect example of where the environment an the economy go very strongly together, if we have the appropriate kind of standards in place.

    Not two weeks ago, we permitted in the State of Pennsylvania a state-of-the-art coal coking facility, first one in 75 years. For the price of $1.5 million added to a $400 million plant, we achieved a 93 percent reduction in mercury.

    Now, that's the kind of technology that's 1,000 jobs for the State of Pennsylvania that will be blown away if our market share is lost in favor of western coal, which, again, from a mercury point of view, is less clean than eastern coal.

    Mr. Chairman, members of the committee, thank you very much. I hope that we will see a change of course that will enhance our environment and enhance our economy at the same time.

    Thank you.


    Thank you.

    Mr. Amar?


    Thank you. Good afternoon, senators.

    My name is Praveen Amar. I work with the Northeast States for Coordinated Air Use Management, NESCAUM. In fact, Vermont and five other New England states, and New York and New Jersey are member states. And I work with them on policy issues.

    I'm going to talk about mercury from three points of view.

    The first, the report which has been mentioned a number of times, the Harvard report, really was sponsored by us with EPA funding. We call it the NESCAUM report, but it's NESCAUM Harvard report. That's on the effects of mercury on two things -- children's development, as well as the heart attacks among adult men and women. And I'll talk about that.

    Number two, I'll talk about technology as we see it, where technology is and how it could really reach much higher reductions and much earlier in time than what EPA is proposing.

    And the third, I will describe to you what other states are doing in the Northeast, doing things a lot more stringent than what EPA is doing, essentially asking the EPA to do what we are doing.

    Number one, then. Our report was externally peer reviewed. We had a nine-member review panel. It was submitted to EPA on January 3rd -- the summary of the report. The report itself was late, February 20th. But it had all the results which were known to EPA even before that.

    We had a meeting with the EPA in August of 2004, so that they were aware of what was coming and what the results should be.

    There's been a lot of discussion why EPA did what it did, and why we are suggesting. I think our report is quite clear that benefits, if you take into account both the children's cognitive development, as well as the heart attacks among adult men and women, based on some studies in Finland -- they are rather large. They go all the way up to $4 or $5 billion per year.

    Based on what was proposed under the old Clear Skies Initiative, about 70 percent reduction. There are about three orders of magnitude more than what EPA has in its proposal, which is about four million, specifically for mercury -- four million to four billion, that's three orders of magnitude.

    And, again, why the differences? The differences are based on two things. We looked at freshwater fish as well as marine fish. And I think one should look at both.

    We also looked at not only children, but the adult men and women and the heart attack situation. And that's the reason our results are so much different and so much larger.

    So I'll move on to the controls. We think, based on our work we have done over many years, that one could go up to 90 percent mercury control much faster than 2018, and much more than what the EPA is proposing.

    A very good example, in our own states in the Northeast -- New Jersey and Connecticut and Massachusetts -- we have municipal waste combustors today controlling mercury up to 99 percent.

    Power plants are different than municipal waste combustors, but they're not that different. They're different, but not to the extent you need new technology breakthrough. What you simply need is application of technology which has been applied for a long period of time to a different category. And costs would be a little higher, but it's very doable.

    Third, then, what our states are doing. We know no more than what EPA does with respect to technology, with respect to costs, with respect to health effects. But based on what we know, we have states like Connecticut, are requiring 90 percent reduction by 2008, Massachusetts 85 to 95 percent reduction by 2008 to '12, New Jersey up to 90 percent controlled by 2007, New Hampshire is just going to propose very soon 60 to 80 percent reduction.

    Outside the Northeast we have Indiana, North Carolina and Wisconsin asking larger reductions.

    So, in summary, I think essentially what we're saying is, EPA's rule, we believe, does not go far enough, and it gets there very late. It gets there late by a whole 10 years.

    (inaudible) mercury is a pollutant which has effect years after years. So what you're doing is essentially keeping a bad situation for 10 years when you could take it away 10 years earlier.

    We think, number two, technologies are here. They are doable. They are cost effective. And based on all of that, what our states are doing is a good example for what EPA should do.

    I'll give you an example -- the cost. I think we always think about how much it's going to cost.

    The way you look at is, how does your electric bill go up? How much more do you pay per month as a typical rate payer?

    If you look at the control of mercury and what it costs, it's about 70 cents per month extra for a typical household. That's, you know, one-third the price of a hamburger. That's what you do get, this (ph) fact (ph), you're (ph) reducing mercury emissions from power plants.

    It's rather cheap. Compared to what we have done as a country, controlling sulfur dioxide for acid rain, controlling oxides of nitrogen for ozone, the cost of mercury control in terms of capital costs, it's about 100. Instead of spending $200 for a scrubber or $100 for a device to control oxides of nitrogen, you pay about $2 or $3, from 200 to 100 to three. So it's not that much.

    With that, I thank you for your time and would be happy to answer your questions.


    Thank you very much. And we will have a couple of questions.

    Ms. McGinty, as I said before, it's nice to see you here.

    I think of the report that we both talked about. That would have set us on the road to controlling mercury from power plants up to 90 percent in the next three years, by 2008.

    Now, the administration seems to have put the industry into control when the rule came out. And we have something entirely different.

    As a matter of fact, many believe the Bush administration proposal is flat-out illegal, including the Clinton administration's top air official, Bob Perciasepe. Last year he submitted documents here to show why EPA considered the cap-and-trade scheme adopted by the Bush administration legally questionable.

    Now, you were the head of the Council on Environmental Quality when the EPA made its 2000 decision to regulate mercury. Did the White House reach the same conclusion, that the cap-and-trade approach was illegal for mercury?


    I have to say, Mr. Chairman, when we made our regulatory determinations in the Clinton-Gore administration, I don't even remember it suggested that mercury should be treated pursuant to a cap-and-trade program. The Congress spoke clearly in 1990, by speaking to mercury in Section 112, not Section 111, of the Clean Air Act.


    And, Mr. Amar, you testified your organization was -- commissioned the Harvard study...


    Yes, sir.


    ... which was then ignored by the EPA. It was criticized by many pundits by Administrator Johnson in a letter sent earlier this month, April 5th, which I'm sure you've seen.

    How do you respond to these criticisms? Why do you think EPA should have considered your report's finding, that much greater public health benefits would be achieved from controlling mercury than what they were going to do in their final rule?




    I mean, the floor is yours. Here's your chance to respond.


    Sir, thank you. I appreciate it.

    First, you know, what with (ph) (inaudible) and what EPA did. We did look at two things. We looked at children's, and we also looked at adult men and women.

    I think the point there is, that if you are not totally certain about a certain result, you try to present that with all its uncertainty, which is what we did.

    For example, with respect to adult heart attacks, the evidence that mercury raises the risk of heart attacks is not conclusive, but we believe it's sufficiently persuasive, that the potential magnitude of the effect should be quantified, which is what we did.

    EPA deemed the science too uncertain to quantify the benefits. If you don't quantify the benefits, the benefits are then zero. We said, OK, we are trying to quantify. We know our limits. But here are the results. Here is the range. Here is the uncertainty. And then, make your decision.

    I think the information was presented in our report, with all the caveats, with all the ranges. And I think that's what EPA did not do.

    So, I think our point is, rather than, you know, omit these factors, a better approach -- which is what we did -- would be to estimate how much the benefits might change as these factors are considered, and then express the results in a range as we did, as I said.

    Now, the White House recently called for such an approach that directs federal agencies to conduct a formal assessment of key uncertainties underlying their cost and benefit estimates.

    Mercury may indeed cause heart attacks. That should be included as a possible outcome. And we did. We do get most of our mercury from saltwater or marine fish. That should not be left out just because science cannot determine exactly how changes in emissions translate into changes in mercury levels in the fish.

    So, I think we are a lot more comprehensive, as done by Harvard, a number of people over a two or three year period, with EPA's funding.

    So I think the answer is, you present the results with all their uncertainties, and then the policymakers decide, instead of taking observe (ph) to begin with.


    Thank you.

    And, Ms. McGinty, sometimes it's easy for me in a state like Vermont -- we don't produce coal -- and talk about what should be done. Of course, you're representing a state which is one of the major coal producers, not only of our country, but of the world.

    But you said that the Bush rules could severely penalize eastern coal from Pennsylvania, Ohio, West Virginia and other states. Do you have an estimate of how many jobs would be lost because of the playing field the EPA set down?


    Well, it's very troubling to us, Mr. Chairman. Right now the coal industry in Pennsylvania employs thousands of people. And these are good jobs. These are $60,000 to $80,000 a year jobs.

    On top of that, we were just taking off in really implementing a whole new generation of technology that addresses environmental problems while it uses a coal resource, capturing the methane that escapes from coal mines, and otherwise is a huge global warming problem.

    The facility that I talked about, among other things, it's going to clean up 750,000 gallons of highly acidic water that pours out of abandoned mines in Pennsylvania. It's cleaning that up as it's creating 1,000 new jobs.

    You asked about legality and illegality. We also believe that this prejudicial treatment of different coal types is also itself illegal.

    The Clean Air Act does allow for subcategorization, but it's on the basis of whether or not you're a cement kiln or you're a utility, not on the basis of what is going into the boiler. Especially when, as here, the control technology is here, it is cost effective.

    And last, I would just repeat the numbers I said before. In a $400 million plant, the mercury controls that we required, which will achieve 93 percent reduction, cost $1.5 million.


    I understand, too, while you require coke plants to adopt the strong mercury rules, it's actually created jobs.


    A thousand new jobs for our state, a big benefit to us. And we were actually assured by Administrator Levitt and others, that the prejudicial treatment was inadvertent, and that it would be dealt with. I guess we should have gotten that in writing. We did not, and it is still there and a problem for us.


    Thank you.

    And Mr. Amar, let me ask you just this one last question.

    You spent the last three years, at least, working with EPA as an official member of its science and technology working group. Now, you've seen the EPA's inspector general and the Government Accountability Office criticize the process and the analyses EPA used to develop the mercury rule.

    Did your working group raise similar questions with them, similar questions with the EPA, while you were developing the rules?


    I did serve on that group for two years. We did not know it till the rule came out, that it was Section 111 under the Clean Air Act. All this time for two years, we thought it was Section 112, the definition of MACT as the Clean Air Act requires. That was a shock.

    I think our last meeting was going to take place April 15th, I think of 2003, the tax day. And then that was postponed. EPA had promised to do more modeling runs, to look at areas, control strategies and the outcomes. That did not occur.

    We thought, in our comments, the way it came out, it was betrayal of the public trust. That's the word we used in our comments, that we were not informed. And these were 30, 40, you know, hardworking people from industry, from state governments, from environmental groups, spending time doing these things.

    And looking back, yes, it wasn't a good experience. I mean, it was a good experience when we were serving. But I think the output wasn't.


    You would liked to have seen something different come out of all the work you did.


    That, and also, I think, even if it was different, I think we felt betrayed. And it had information which wasn't even discussed for a two-year period.


    Thank you.

    Senator Lautenberg?


    Thanks, Mr. Chairman.

    And, Ms. McGinty, we miss you. I can tell you, it's not just your charm. It's the fact that you brought such a sensible view to our problems with the environment. And would so much want to solve some of these problems. Instead, we're retrogressing, and it's too bad to contemplate it.

    I've had people come into my office, people with mercury poisoning, and seen families with children that -- about which -- about whom there are questions about whether or not their autism had any mercury relationship at all. And since it's still unsure, I don't want to make the comparison.

    But one thing we know. It can't be good for kids. It can't be good for people.

    And would you like to speculate on why it is that people who run a $400 million power plant wouldn't spend $1.5 million to get people like you and me off their backs? That I don't understand.

    I mean, why fight with a scientifically developed analysis that says it's terrible for you. It's one of those things that can be fixed.

    Now, is the reliability conclusion fully documented and effective in a working manner?


    Yes. This is more than proven technology. It is activated carbon that you just inject into the flue stream and it grabs the mercury and takes it out. You combine that with some of the conventional controls, and you achieve the numbers that we've talked about.

    I underscore, especially for your point, to say it's not hypothetical. It's not that somebody modeled it in a laboratory. This technology has been used for a long time, and is being used today in these kinds of facilities.

    There's just no question but we have the answer right before us. It is cost effective and it is efficient in achieving the goals.


    Because, even with the boldest estimates, and our target date of 2008, that we wouldn't have reached it with a 90 percent reduction.

    Is that what we're looking at? Am I right?


    That's correct.


    The Clean Air Act.






    The Clean Air Act mandate.

    And why are we fighting these things? Where is the sense of business leadership? I come out of the business world. I spent 30 years there before I got here.

    And one of the things that I look at constantly is business and ethics. And I'm on the board of the Columbia Business School. And a constant subject for me is the ethical management of business. Where is that compulsion? I don't understand.

    In New Jersey, 13 percent of the women of childbearing age have high, unsafe levels of mercury in their blood. Most of that mercury comes, they say, from eating fish.

    What will EPA's mercury rule do to help improve this situation?


    Well, we're -- as a state we're concerned that it will do little, if anything. The potential for the fuel switching I described could mean that we actually will see a substantial increase in mercury. And that is of grave concern to us from an environmental and an economic point of view.


    Well, the deferring of the date to a much later time is actually, it's believed in New Jersey, from the people who run our environmental department, that it's going to increase mercury emissions substantially over our state. And it's an outrageous thing when you think about a subject that we so frequently talk about, and you made reference to. And that is, the moral values of what we are about as a country. It's outrageous.

    What happens, Mr. Amar? You made specific reference to fish from saltwater. I was curious if our streams and our rivers, our lakes, have such a high mercury presence, don't those fish carry the same burdens? Or is there something that saltwater produces that freshwater doesn't?


    Well, the simple answer is, oceans have much more water, so you see the effect of mercury sometimes not as quickly as you would see in freshwater.

    But there are a lot more fish, and three-fourths of the American fish consumed in the United States is imported. And quite a bit of that is impacted by emissions of mercury within this country, including the power plants emissions.

    So, our calculations with the Harvard study do indicate that even though mercury changes may be slow to occur in the ocean, but we eat so much of it, the benefits of lowering mercury emissions from power plants, about 50 percent of the benefits occur because of fish in the ocean, even though they may not be as affected by change (ph). It's lots of fish with small change in mercury.


    Yes, because as we try to embark on better, healthy diets, and we've been steered toward fish. And now, are we bouncing back to meat? I mean, if what you say is so, then I guess we all turn to rabbit-like diets and eat nothing but lettuce.

    But the fact of the matter is that...


    But lettuce has a (inaudible).


    Is there such a thing as Vermont lettuce, Mr. Chairman?

    But the one thing that we do understand, this is a very serious threat to the health and wellbeing of our society. In so few places do we have a chance to really do something. And now, Ms. McGinty, I'm putting a lot of faith and trust in the comments that you made.

    And also, our dependence on foreign oil and the abundance of coal that we have in our country. If we can use it effectively and take the toxins out of there, it'd be a wonderful thing to do from an economic standpoint, as well as a health standpoint.

    And so, we ought to proceed. And I thank both of you for the comments that you delivered here today, and for the work that you have both done on environment.

    Ms. McGinty, we wish you well in Pennsylvania, because Pennsylvania is west of New Jersey. And they get into the jet stream, as well. So, clamp down, please.


    We consider it one of those southern states, as we do New Jersey.

    Secretary McGinty, it's good to have you here. And Mr. Amar, it's also good to have you here. Thank you for taking the time. I know that we started late because of the voting situation. You remember what that was like. And I appreciate your being here.

    And if we could call up Jane Browning, from the Learning Disability Association of America, Leonardo Trasande from Mt. Sinai School of Medicine, Susan West Marmagas from the Physicians for Social Responsibility, and George Meyer from the Wisconsin Wildlife Federation.

    And as I mentioned, Mr. Meyer, the two senators from your state, when you see the transcript of this, we'll have in the record comments praising you. I don't know if that helps you or hurts you back home. And praising you and welcoming you here.

    So, I thank you all.

    And why don't we start with Mr. Meyer and go accordingly?

    Mr. Meyer, go ahead, sir.


    Mr. Chairman and members of the committee, thank you very much for this opportunity to be here today.

    My name is George Meyer, and I'm the executive director of the Wisconsin Wildlife Federation. We are the state's largest conservation organization, representing 100 hunting, fishing and trapping groups, with approximately 75,000 members.

    By way of personal background, I served for 32 years with the Wisconsin Department of Natural Resources, and eight years as secretary of that department, under the administration of former governor and U.S. Health and Human Services secretary, Tommy Thompson.

    The Wisconsin Wildlife Federation is greatly concerned about the weak mercury emission reduction rules that have been adopted by the U.S. EPA. Our members are heavily engaged in recreational fishing, and our members and their families regularly consume the 49 million fish that they catch in the state.

    Forty percent of our population -- two million people -- fish in the State of Wisconsin. All of Wisconsin's 15,000 lakes and 44,000 miles of streams have been posted with mercury health advisories, directing the women of childbearing age and children under the age of 15 are advised not to eat large sport fish such as walleye, northern pike and bass more than once a month, and pan fish, such bluegill and crappie, more than once a week.

    And now, more recently, men are warned not to eat walleye or northern pike more than once a week. This is new in Wisconsin. It reflects new information on cardiovascular harm caused by mercury.

    This is a serious health issue. A recent study completed by the Wisconsin Division of Health showed that one out of five hair samples of Wisconsin residents revealed levels of mercury contamination in excess of EPA's standard of one part per million.

    This is a real issue. Every day, Wisconsin anglers and their families live with the decision of whether they can eat the fish that they catch.

    The tourism associated with recreational fishing is a major part of Wisconsin's economy, adding $2 million in revenue, and it creates 30,000 jobs in our state.

    The Wisconsin Wildlife Federation was one of many conservation, health, tourism and environmental organizations that petitioned the Wisconsin Department of Natural Resources four years ago to adopt utility mercury emission reduction regulations.

    These rules -- the third in the country and the first in the Midwest -- went into effect last year. The Wisconsin regulations require mercury reductions of 40 percent by 2010, 75 percent by 2015, with the goal of 80 percent reduction by 2018.

    In contrast, the U.S. EPA rules only require reduction of 21 percent in 2010, and a 69 percent reduction in 2018.

    From a practical standpoint, under the EPA regulations, few utilities in the country will have to make any reductions before 2018. And, in fact, it is projected that mercury emissions will actually increase in 19 states before 2010, including several that will directly impact the amount of mercury falling in Wisconsin waters and being (inaudible) by our children.

    What is extremely frustrating is that we know that currently available technology can reduce mercury emissions from between 80 to over 90 percent.

    Within the last year, my former agency, the Wisconsin Department of Natural Resources, issued Clean Air Act permits for two, new coal- fired power plants that require, respectively, 83 percent reduction and 90 percent reduction. The two utilities involved, WE Energies and Wisconsin Public Service Corporation, readily agreed to these requirements.

    Not only are these requirements technically feasible now, they are economically feasible. The Wisconsin Department of Natural Resources' economic study of the cost of the rules that they adopted last year established that the cost per household for the Wisconsin rules was only $18 per household per year -- clearly, affordable and one that our members readily were willing to pay.

    It should be noted that mercury reduction in Wisconsin is not a partisan issue. The Wisconsin rules that we've been talking about were supported by three different Wisconsin executive administrations, two of which were Republican and one Democratic. And the final rules were concurred in by a Republican legislature.

    This should not be a partisan political issue. This is an issue of protecting the health of our families. This is about the continuation of our heritage of fishing with our families.

    I think that is was said best by one of our members when testifying in support of Wisconsin mercury emission reduction standards.

    "You know, when we adopted a constitutional right to hunt, fish and trap here in Wisconsin, I thought it included the right to eat the fish."

    Thank you very much for listening to the concerns of the sportsmen and women of this country.


    Thank you, Mr. Meyer, and thank you for taking the time to come here and speak with us.

    Ms. Browning, it's good to have you here. We welcome you.


    Thank you very much, Senator Leahy, my distinguished colleagues. Thank you very much for this opportunity to speak to you today about my concerns over the links between mercury emissions and the rising incidence of learning and other developmental disabilities.

    My name is Jane Browning. I am the Executive Director of the Learning Disabilities Association of America. And I've advocated for the rights and welfare of individuals with disabilities for 33 years.

    The Learning Disabilities Association of America is a national non-profit association with approximately 20,000 members and some 200 affiliates in 41 states. Sixty percent of our members are parents of children with learning disabilities, 57 percent are professionals in the field, and 25 percent identify themselves as adults who have learning disabilities.

    Organized by volunteer parents in 1963, LDA established a research committee in 1975, which promotes research and policies aimed at reducing the incidence of learning disabilities. LDA has avidly tracked the emerging science of children's environmental health.

    We now know that two-thirds of learning and other developmental disabilities are caused by genetic-environmental interactions, and that increasing amounts of chemical and other toxic exposures increase the incidence of cognitive disabilities.

    In 2002, LDA launched its Healthy Children Project, which promotes grassroots prevention in 14 states. LDA is a co-founder of the Collaborative On Health and the Environment, and just staged a 400 participant, regional Health and the Environment Conference in Pittsburgh, with funding from the Heinz Endowment, and featuring Teresa Heinz Kerry as our keynote speaker.

    LDA is gravely concerned about reported increases in the number of affected children, especially the dramatic rise in the incidence of autism and of attention deficit hyperactivity disorder, or ADHD.

    Knowing for over a century that mercury is a potent poison directly affecting the nervous system, and knowing the research history of that other deadly neurotoxicant, lead, we are convinced that there exists a direct relationship between human exposure to mercury pollution and the rising incidence of cognitive disabilities.

    According to federal data, 630,000 babies born each year in the United States are carrying body burdens of mercury above the EPA's current health threshold. In a study appearing just last month in the journal "Health and Place," University of Texas researchers reported on the correlation of mercury emissions from local coal-burning utility plants and the incidence of autism.

    On average, for every 1,000 pounds of environmentally released mercury, there was a 43 percent increase in the rate of special education services, and a 61 percent increase in the rate of autism.

    Our concern is such that LDA recently published a new brochure, "Mercury and Learning Disabilities: A Parent's Guide," warning of the dangers of eating contaminated fish, and encouraging state and local policy action to reduce mercury emissions. You will find this brochure out on the table in the hallway. And if anybody wants extra copies, please let me know.

    What does it mean for a fetus to develop with a damaged brain? As a representative of Parents of Children with Learning Disabilities, and as the mother of a developmentally disabled son, I'll tell you of the human and familial costs.

    Our children struggle and fail. They learn early to doubt themselves. And they experience loss and sadness and guilt. Our children's frustrations sometimes leads them to anger, and they strike out at others, or they become the target of bullies.

    Homework is not a nighttime activity, but a daily nightmare. Finding the right school, the right teacher, the right intervention system becomes a family crusade.

    Career paths of parents proceed in fits and starts, depending upon the disabled child's current needs.

    And our children's careers? You must understand that learning and other developmental disabilities are lifelong. They do not go away.

    A number of highly intelligent people with severe processing disorders have become highly successful. People like Gaston Caperton and Charles Schwab. But many of our children fail to get a high school diploma. Many of our children struggle to master daily life activities.

    My son just had his 22nd birthday, and he still needs help to shower and shave. He'll never learn to drive.

    It isn't just an individual who has a disability. Every family with such a child becomes in many ways a disabled family.

    Conservatively estimating, 15 percent of American families now have that status. Do we really want to increase that burden in our midst? Not if we can help it -- and we can.


    Thank you, Ms. Browning.

    Dr. Trasande? Did I pronounce your last correctly?


    It's Trasande. Thank you very much.


    Trasande, OK.


    Mr. Chairman, senators, I'm pleased to appear before you today to discuss the impact of mercury pollution upon the health of our nation's children.

    I'm Dr. Leonardo Trasande. I'm Assistant Professor of Community and Preventive Medicine and of Pediatrics at the Mt. Sinai School of Medicine. I'm also the Assistant Director of the Center for Children's Health and the Environment, our nation's first academic research and policy center, focused on understanding the links between exposure to toxic pollutants and children's health.

    My colleagues and I have recently published the first peer- reviewed analysis describing the danger that mercury pollution poses to the health of our nation's children.

    Before describing our findings, let me provide some background about brain development, so that you can appreciate the magnitude and the urgency of this problem.

    Human brain development is among the most complex processes in nature, and it is exquisitely sensitive to the environment. Long before birth, brain cells, or neurons, actively form the connections that determine intelligence over a lifetime. Thanks to sound government regulation, pregnant women know to avoid cigarette smoke and alcohol during this critical time in their baby's development.

    But hidden in our environment are neurotoxicants, such as lead, polychlorinated biphenyls, or PCBs, and certain pesticides, which pose a high risk of permanent and irreversible dysfunction. The consequences of these exposures can include loss of intelligence, disruption of behavior, increased risk of attention deficit disorder, and heightened risk of autism.

    Methyl mercury is among the most potent neurotoxicants. When a pregnant woman eats mercury-contaminated fish, the methyl mercury from the fish enters the mother's bloodstream. From the mother's bloodstream, the methyl mercury can move directly across the placenta to enter her child's body. The placenta poses no barrier to the passage of methyl mercury.

    Once I the child, the methyl mercury accumulates and irreversibly damages the developing brain.

    In 2000, the National Academy of Sciences reviewed three, large- scale prospective studies -- one in the Seychelles Islands in the Indian Ocean, another in New Zealand and a third in the Faeroe Islands of Denmark -- and found strong evidence for the toxicity of methyl mercury to children's developing brains, even at low levels of exposure.

    So, what are we here in the United States doing about methyl mercury toxicity? Throughout the 1990s, the EPA proactively responded to the scientific evidence of methyl mercury's toxicity, and made steady progress in reducing methyl mercury emissions from manmade sources.

    The EPA regulated medical waste and municipal incinerators, and reduced total mercury emissions significantly, by about 80 tons per year from 1990 to 1999. The Clean Air Act, which required reductions in mercury emissions from power plants to five tons by 2008, was the right course for the health of our children.

    In January 2003, however, the EPA reversed course and announced a proposal to relax controls on emissions of mercury from coal-fired power plants.

    What are the consequences of this sudden reversal? The technical analyses used by EPA emphasized that power plants would avoid paying high costs of installing flue gas filters that control mercury emissions more stringently.

    Let's put this cost on one side of the scale, and let me detail for you're the other side of the scale.

    The technical analyses that EPA used to promote its mercury rule failed to incorporate or quantify health impacts resulting from increased mercury emissions. My colleagues and I at the Mt. Sinai Center for Children's Health and the Environment put into perspective the costs of controlling mercury emissions by estimating the impact of methyl mercury toxicity on American children.

    We found that between 316,000 and 637,000 children each year are born with enough methyl mercury to cause brain damage. Let me emphasize that this impact is permanent and irreversible. Even low levels of exposure can result in loss of IQ. And we found that some children may suffer IQ loss as high as 24.4 IQ points.

    But there is far more on this side of the scale. Methyl mercury toxicity threatens our economic security. Lost intelligence leads to lost economic productivity. And methyl mercury toxicity costs our nation at least $2.2 billion, and as much as $43 billion, each year.

    Mercury emitted by coal-fired power plants alone costs $1.3 billion each year in lost economic productivity. These costs will recur year after year after year with each new birth cohort so long as mercury emissions are not controlled.

    By contrast, the costs of installing stack filters to control atmospheric mercury emissions is a one-time expense. Putting aside for the moment the unconscionable act of exposing our children to neurotoxins, the economic impact alone is startling.

    The EPA has emphasized an effort to improve fish advisories, instead, as a way to protect children from the effects of methyl mercury toxicity. Advisories are an important tool, but they fail to deal with the underlying problem -- mercury emissions.

    If mercury emissions are allowed to remain at high levels, generations of our nation's children will suffer lost cognitive faculties and other health impacts. These losses cost more in the long run than any savings now from failing, for example, to install filters at power plants.

    The impact of methyl mercury toxicity may even be more profound. Our group is currently estimating the extent of mental retardation associated with methyl mercury exposure. Mental retardation is defined as an IQ of 70 or lower. And methyl mercury exposure may propel children with normal intelligence into mental retardation.

    Unfortunately, despite new knowledge about methyl mercury toxicity, EPA has chosen to proceed with the utility rule without considering the profound and devastating impact this rule could have on our nation's children.

    My colleagues and I at the Center for Children's Health and the Environment are working to compare the human and economic costs of this Mercury Utility Rule with previous regulations under the Clean Air Act.

    We're here today to urge you to block implementation of the Mercury Utility Rule until the health of our children are considered completely in the debate on mercury controls.

    Ladies and gentlemen, if economics are going to be a deciding factor, then the public should decide whether it's worth it to spend more on electricity if that investment means it results in smarter and more productive children.

    I thank you for the opportunity to speak here today and would be happy to answer your questions.


    Thank you very much, doctor.

    And Ms. Marmagas -- and the gentleman over here has been good enough to remind us to press the button in front of you. And if you would...




    You've done that, OK. Thank you.


    It's on. Great.

    Well, good afternoon. It's an honor and a pleasure to be before you, Senator Leahy, and to talk about the development of the EPA Clean Air mercury rule.

    My name is Susan West Marmagas. I'm the Environment and Health Director at Physicians for Social Responsibility.

    Today, I'm actually speaking as a member, not representing, but as a member of the Children's Health Protection Advisory Committee. This is a committee -- a federal advisory committee -- that advises the administrator of the Environmental Protection Agency on a swathe of children's issues that face the agency at this time and into the future.

    We offer scientific review, we offer guidance, we offer technical assistance to the administrator on these issues. I'll call it the CHPAC, as we refer to it. It's comprised of a broad swathe of children's health experts around the country. This includes people from clinical practice, academia, industry, the public interest. And they -- we make all of our decisions by consensus. Every member was appointed or reappointed by this administration, myself included.

    What I'd like to do today is talk briefly about the role that this advisory committee played in the rule-making process on regulating mercury from power plants, because it's indicative of the lack of response to scientific evidence that we had on this issue.

    Beginning in January of 2004, the CHPAC took up consideration of the proposed mercury power plant rule. We reviewed the science of the health effects to children from mercury exposure, extensively questioned William Wehrum, the General Counsel to EPA's Office of Air and Radiation, about the proposed regulation to control mercury from power plants. And we examined the EPA's proposed preamble to the rule.

    In our initial, January 26, 2004 letter to the administrator, we outlined the significant health implications of low-dose methyl mercury exposure for children. We documented the extensive scientific conclusions, many of which Dr. Trasande has laid out for you today, about these health impacts to America's children, and laid out the important concern that we had.

    Based on the review that we made of the health effects science and the proposed rule, the committee raised a number of issues in that January 26 letter, and I'm going to briefly review what those were.

    Our overarching message -- and I quote -- "This proposed action does not go as far as is feasible to reduce mercury emissions from power plants, and thereby does not sufficiently protect children."

    We went on to raise the important consideration of children, and we asked that EPA take into greater consideration the health impacts on children and women of childbearing age

    We raised this issue of reclassifying mercury as a hazardous air pollutant and said, quote, should EPA decide to change the definition of mercury from power plants as a hazardous air pollutant, we are concerned about the unintended consequences of this re-classification for regulating mercury.

    Then we took up hot spots. "We recommend that EPA evaluate the possibility that hot spots could result, and that the proposed regulations should be written to ensure that existing hot spots are reduced and no new ones created."

    We sought an integrated analysis that would look at available technologies, cost, health implications and economic benefits, and we asked the EPA to share that analysis with our CHPAC.

    In the response from the agency, Jeffrey Holmstead, the director of air and radiation at the agency, stated that he believed the EPA strategy was the most cost-effective and environmentally beneficial. He also stated that other cap-and-trade programs have not led to the creation of hot spots, but he didn't offer us any conclusive evidence or analysis to justify this recommendation.

    He did not respond to our request for additional modeling, and he also did not respond for our request on integrated analysis on technology cost, children's health or environmental benefits.

    After little response from the agency, we looked into this further. We consulted with additional experts. And we determined that our recommendations were very warranted.

    Upon further reiteration of these concerns and others in two follow-up letters in both June of 2004 and November of 2004, we received little responsive action from the agency. In fact, in a letter from Stephen Page, from the Office of Air Quality Planning and Standards within the Office of Air and Radiation, he stated that, "if it is determined that EPA will conduct additional analyses, we will make them available for public comment prior to the finalization of the rule."

    Deputy Administrator Johnson at the time met with the CHPAC in October of 2004, solicited our input and advice on the upcoming new information in the Notice of Data Availability, and so we put our fourth and final letter together. In our response in this letter to the agency, we laid out our concerns again.

    However, despite repeated requests, no integrated impact analysis was ever provided to the CHPAC, nor was it part of the Notice of Data Availability released for public comment.

    Three weeks before the rule was to be released, the director of air and radiation at the agency, Jeff Holmstead, came and met with our CHPAC in person. In this meeting on February 24, 2005, he stated that the agency did not need to do specific analysis on children, because in the agency's view, this rule was all about children.

    He also argued that several other key children's health concerns, in his opinion, were more important to the agency to address, namely lead exposures and indoor air pollution to children living in developing countries, and that mercury did not rise to the same level of concern for the agency.

    In response to our concerns about hot spots, Holmstead stated that EPA did not believe that hot spots would result, but that they had no undertaken any new analysis to justify this conclusion. When asked about the integrated analysis on children's health impacts, Holmstead promised that this analysis would be in the final rule.

    In conclusion, the concerns raised by the EPA children's health advisers were largely dismissed by the agency in concluding its rulemaking process. The agency did not conduct a comprehensive analysis on children's health impacts, although they did have a health benefits analysis in the final rule that was never made available for public comment. The agency never undertook an integrated analysis to assess technologies cost, health impacts and economic benefits.

    And in conclusion, as indicated in Mr. Holmstead's comments to the CHPAC in February of 2005, the agency downplayed or ignored the significant threat of mercury to children's health, even in the face of persistent, evidence-based concerns voiced repeatedly by leading children's health experts in the country.

    Thank you for this opportunity. I ask that the letters from our advisory committee, along with a list of its members, be added into the record. Thank you very much.


    It will be. And you talk about what Jeffrey Holmstead's reaction to you.

    Is he basically saying this is an either/or sort of thing? That there's other concerns, so this is not a concern? And is that the impression you got from him?


    That was the impression we got. Senator Leahy...


    Did you think that's responsible on the part of EPA to put in that, instead of saying, let's see if we can attack all the issues we're facing?


    We feel it's important. I feel it's important as a child health expert adviser to the agency, that this agency look at a swathe of impact on children. And to say that we will focus on lead and indoor air pollution in the developing world, but not deal with significant threats of mercury, I believe is...


    Well, were any of your committee's recommendations followed in the final rule?


    No, actually, they were not. We didn't see them addressing hot spots. The integrated analysis was not there. The focus on children's health in the analysis was not there.

    And we believe strongly that if -- when they came out with their advised health benefits analysis, it shouldn't have been in the final rule, it should have been out for public comment much farther in advance.


    And Ms. Browning, listening to your testimony, I think of the -- I wonder if the various departments speak with each other. You've got the Department of Education has a No Child Left Behind. EPA, based on your own, your testimony, both from your association and, sadly, your own personal experience.

    Do you feel that if this is left in place, do you think our schools are going to be prepared to handle the potential jump in the number of kids with learning disabilities, because of mercury pollution?


    Just, to move beyond the question of the schools, the number -- the proportion of children in foster care, age zero to five, range in the 65 percentile of children who have developmental disabilities.

    Among the women who are receiving financial assistance under TANF, the states report anywhere from 45 to 70 percent of the people on those rolls are people who have learning disabilities, mild mental retardation or mental illness.

    The same is true of children in juvenile corrections facilities. The same is true of our prison population.

    These institutions are filled with the people who are suffering as a result of the poisoning and the interaction of those poisons with their genetic predisposition. If we're going to double the number of people who are susceptible that way, I would say that we cannot afford -- and our schools or in any of our other institutions, to be able to deal with that.


    Thank you.

    Doctor, you had talked about your studies saying, if I've got it correct from my notes here, $1.3 billion a year from lost productivity due to mercury pollution from U.S. power plants.

    What is this 10-year delay going to cost the United States?


    Well, Senator...


    The 10-year delay proposed by the Bush administration, what's that going to cost the United States?


    Well, Senator, I'm glad you asked that question.

    We are in the process of performing that very sort of analysis. It's a complex analysis, because the components of mercury -- the sources of mercury exposure change over time. And the degree to which power plant emissions contribute to that mercury will change, depending on various policy options chosen by the EPA.

    We're in the process of finalizing and shepherding that analysis through peer review. And that's the very reason why we are urging your continued effort to do, essentially delay implementation of the Mercury Utility Rule, so that we can actually have a fair and complete hearing on the health impacts of this unfortunate rule.


    Thank you.

    Mr. Meyer, I appreciate the fact, you said this is not a partisan issue. As I stated earlier, the Clean Air Act itself came as a result of Republicans and Democrats working together.

    And I found that most groups that represent hunters or anglers, those involved with wildlife, they don't get partisan. They just want to see what the results are. They want to make sure they can carry out the 475 sportsmen groups who wrote to EPA last year opposing the rule. That's certainly (ph) a bipartisan group of voters. Seven Republican senators joined with me to oppose the rule.

    You testified that men are warned not to eat more than one serving of walleye a week. In Vermont, where there's fishing for this, we're warned not eat more than one serving a month. Pregnant women or those that might become pregnant are told not to eat any due to mercury contamination.

    The administration says, well, it's a global problem. Of course, 60 percent of that dumped in our -- in the U.S. comes from domestic sources. That's mercury dumped in the Great Lakes and Lake Champlain.

    Are you concerned that these so-called hot spots that are being created by this are going to end up being places where we'll never be able to fish? I mean, your children or grandchildren will never be able to fish?


    Well, we are concerned about the hot spot issue. By the way this has been structured, with the cap-and-trade program especially.

    Let me just say, when I was secretary of the Wisconsin Department of Natural Resources, we supported cap-and-trade for conventional pollutants. But it doesn't apply, it does not work well with toxic air pollutants.

    There's been studies done that shows that 26 percent of the mercury that falls into the Great Lakes comes from within 100 miles of the Great Lakes. If there's cap and trading back and forth and there's an increase in mercury as a result of these rules -- and there will be in 19 states -- that means we're going to have more mercury get into our lakes, which is going to be there a long time before it becomes safe for our citizens to eat the fish.

    So we are greatly concerned. This the wrong way to deal with this type of pollutant.


    Thank you.

    And Senator Dayton of Minnesota has joined us. And certainly, as you know, Minnesota, like Wisconsin, has a lot of people who fish. But also, Senator Dayton has proven in his term here in the Senate, to be a strong, a very, very strong environmental voice.

    And so, Mark, I turn it over to you.


    Thank you, Mr. Chairman. I want to salute you and colleague Senator Jeffords, for your leadership, which preceded, and will post-date me.

    Minnesota also, Mr. Chairman, has a prohibition -- or a recommendation, I should say -- a recommendation that pregnant women not eat any fish, and also, some of the same recommendations in terms of men.

    And this trading of, you know, recognized lethal poison back and forth, to me, is just incomprehensible. How we can recognize on the one hand that these toxins like mercury are lethal to our people. And then on the other hand say, well, we'll just let people trade it back and forth for their own economic benefit.

    I mean, it's just putting polluters ahead of people, and somehow trying to make that seem like it's part of a protection of people, to me is just incomprehensible.

    So, I thank you. I apologize. This is one of these days -- maybe if I'd be here 24 years, I could figure out days like this. But...


    Personally, I can't figure it out and I've been here 31 years.


    ... very discombobulated...


    But it, with the voting is -- we suddenly got...


    They say that we use the term recess, which I think is appropriate, because we behave like elementary school children so much of the time.

    But I apologize for my absence, and I thank you for your courageous and your persistent efforts. I know in Minnesota, this is a very, very strong. And, sir, we're both a victim and, through some of our discharges, also one of the culprits here. So we have both sides of the equation.

    And I don't see any benefit to the people of Minnesota by delaying action, and certainly not by allowing institutionally, or legally, a continuation or even, you know, further increase in discharges.

    And I'm also, as you said, Senator Leahy, mystified by this notion that we have to choose between just one kind of enforcement or another. To me, it's all of the above, if they're warranted.

    And if the agency needs additional resources to undertake those multifaceted approaches, I wish they'd tell us so. We don't hear that from them, of course. But I share their concern for those in the rest of the world, but my priority first is Minnesota.

    And if we're not doing what we should be doing and could be doing in Minnesota and across the country, we're not going to be a very good example for the rest of the world.

    I don't know if any of you care to comment on that or anything else, if you haven't had a chance to say before.

    Again, I thank you for being here. Thank you, Mr. Chairman.


    Anybody want to add anything?

    Well then, I appreciate very much you being here.

    I think, you know, the hearing shows the threat that mercury pollution is to children. I don't think there should be any, any question about it.

    But what bothers me also, as a senator, is the great length that the administration went to, to ignore very clear health concerns, very clear health analyses, environmental analyses. And instead allow industry, which -- and some of the same industries that's ignored these same things -- to write the regulations.

    What they did, they had a choice of being concerned about the health of children and pregnant women, or wanting to take care of a small part of industry. They went with the industry.

    I think that's wrong. That's not being either Republican or Democratic. It's just plain wrong.

    The children, the health of our people should come first. And that's why we'll keep on pushing. And there'll be other hearings like this. Other senators will speak out.

    But you've done a great service here. You will probably hear yourself being quoted on more than one occasion as a result.

    Thank you all very much.

CQ Transcriptions, April 19, 2005

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2005 CQ Transcriptions. All rights reserved.