Just hours after the U.S. Environmental Protection Agency released its new mercury control rule yesterday afternoon, the state Department of Environmental Protection and at least one environmental group announced they will seek to have it overturned.

The EPA said the nation's first controls on utility mercury emissions will use a market-based "cap and trade" program favored by the utility industry that will cut emissions at some but not all coal-fired power plants to achieve reductions of up to 70 percent by 2018.

But DEP said it will appeal the federal rule in the U.S. Court of Appeals for the D.C. Circuit, because it violates the Clean Air Act, fails to adequately protect public health and will hurt the state's coal industry.

Calling the EPA action a "dangerous approach," DEP Secretary Kathleen McGinty said, "If EPA won't act willingly, then Pennsylvania and others will move ahead to make sure the agency puts in place a plan that is more protective of citizens."

Mercury is a toxic, persistent pollutant that is released into the air when coal is burned, falls to the ground and into water where it accumulates in the food chain. Humans are exposed primarily through eating contaminated fish.

Kurt Knaus, a DEP spokesman, said the new federal rule rescinds a December 2000 EPA finding that mercury emissions are a hazardous pollutant that must be controlled using maximum available controls, not a cap and trade program that could create local "hot spots" of contamination.

He said the new rule, which allows utilities to make economics-based decisions about where controls will be applied, will do little to curb pollution blowing into Pennsylvania from upwind states in the Midwest. The rule could also hurt the state's coal industry because coal-burning utilities could comply with it by switching to low mercury coal mined in western states.

Scott Edwards, legal director for the Waterkeeper Alliance, an national environmental group that announced it will also file a federal appeal of the rule, said it will allow some of the dirtiest power plants to avoid any mercury emissions reductions.

"This isn't a rule: it's a kickback -- the illegal end product of huge campaign contributions, scurrilous industry influence and a fraudulent rulemaking process. This rule is a poster child for why courts exist."

The Electric Reliability Coordinating Council, a coalition of utility industry companies, said the cap and trade program "creates substantial economic incentives for superior mercury control" and should result in reductions by the biggest mercury emitters.

The council said there is no existing technology that can achieve the level of reduction contained in the new rule, or the 90 percent reductions advocated by environmentalists, and state and local air quality officials.

But in meetings with the utility industry in 2001, the EPA estimated that an 80 to 90 percent reduction in mercury emissions was achievable and affordable with existing control technology, like that already used by medical and municipal incinerators.

Recent reports by the EPA Inspector General and the Government Accountability Office were critical of the agency for politicizing the rulemaking process by directing agency scientists to tailor the mercury rule caps to those that will be achieved under other emissions controls.

As a result, according to the EPA's calculations, a first phase cap of 38 tons a year will be achieved "by taking advantage of co-benefit reductions to control soot and smog. Controls aimed specifically at reducing mercury emissions won't be required for a dozen years.

Knaus said Pennsylvania will consult with 10 other northeast states that are on record as opposing the rule to determine if they will join in the federal appeal.

"I suspect this rule will see a number of challenges," Knaus said, "and we intend to stay out in front in opposing what the EPA announced today."

After the new rule is printed in the Federal Register -- which should happen within the next couple weeks -- petitions for review can be filed in federal court during a 60-day appeal period.