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EPA is ordered to release documents on mercury rule

A federal magistrate in Boston ordered the US Environmental Protection Agency late yesterday to release internal documents to Massachusetts Attorney General Thomas F. Reilly about how the federal agency arrived at a controversial rule to regulate mercury emissions from power plants.

Reilly sued the EPA in March 2005 after the EPA refused to release all the information Reilly requested about alternatives the agency considered before coming up with its mercury emissions trading program. Reilly believes the EPA dismissed more effective alternatives.

An EPA spokeswoman in Washington said last night that agency officials were reviewing the 43-page ruling by US District Judge Magistrate Robert B. Collings. She declined to say whether they would appeal.

The EPA's mercury rule allows dirtier power plants to buy air pollution credits from cleaner facilities, a market mechanism the agency says will reduce mercury pollution 69 percent by 2018. But critics say technology exists to reduce mercury even further at a low cost and that the EPA's rule allows hot spots of mercury pollution to develop near power plants that pay for the right to pollute.

The EPA argued it did not have to release the documents because it was part of a deliberative process and exempt under the Freedom of Information Act. But Collings said the agency did not prove that the documents were exempt.

''We will now be able to see the documents that the EPA has tried to keep hidden," said Reilly. ''By making the facts available, the public will now be able to understand the choices the EPA is making and whether the agency is meeting its important responsibility to protect the public health and welfare."

Massachusetts is one of 11 states that sued the federal government in 2005 saying the mercury rules violate the Clean Air Act. The Bay State has already enacted some of the toughest mercury emission regulations in the country, rules that will reduce power plant emissions 85 percent by 2008.

Mercury is a naturally occurring element that can cause severe neurological damage in children and fetuses. It is released into the air from incinerators and coal-burning power plants.

Beth Daley can be reached at

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