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  WASHINGTON - A federal appeals court on Wednesday blocked some of the Bush administration's changes to the Clean Air Act from going into effect, dealing a major setback to one of the White House's biggest environmental decisions.

A three-judge panel of the U.S. Circuit Court of Appeals (news - web sites) for the District of Columbia agreed with 12 states and several major cities that argued they would face irreparable harm to their environments and public health from the changes. The judges ordered the Environmental Protection Agency (news - web sites) not to implement its rules change until the panel can m! ake a final determination about the case.

That court challenge, which could last well into the next year, takes aim at an EPA rule making it easier for utilities, refineries and other industrial facilities to make repairs in the name of routine maintenance without installing additional pollution controls.

The court decision stops the new rule from taking effect, which would have happened later this week. The justices said the challengers had "demonstrated the irreparable harm and likelihood of success" of their case, the required grounds for stopping the rule.

But the judges also refused to reconsider an earlier decision not to block other EPA changes to the Clean Air Act, which gave coal-fired power plants and other industrial facilities in some states more flexibility to calculate pollution levels.

EPA made the maintenance rule final in October. It was first proposed in December 2002.

Suing to block the maintenance rule were the attorneys general of 12 states — Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin — and officials from New York City, Washington, San Francisco, New Haven and a host of other cities in Connecticut.

Eliot Spitzer, New York's attorney general, called it "a major decision."

"When it comes to environmental policy, this court decision is as big a success as we've had in stopping the Bush administration from undercutting the Clean Air Act," he said.

Tom Reilly, the Massachusetts attorney general, said the court "forced EPA to take back its early Christmas present to the coal-fired power plants in the Midwest."

EPA spokeswoman Cynthia Bergman expressed disappointment with the ruling, but said it was still being reviewed by agency officials.

She said the maintenance rule was "intended to clarify the process for maintaining and operating a facility," but that it emphatically "does not allow power plants to increase their emissions past their current Clean Air Act limits."

"In fact, this rule will have little or no impact on emissions," she said.

The White House, which had overseen the changes, referred all questions to the EPA.

Environmental and health groups, including Natural Resources Defense Council and the American Lung Association, also challenged the rule in the appeals court.

They argued EPA's maintenance rule violates the Clean Air Act by letting power plants and other industries increase pollution significantly without adopting control measures, and public harm would result.

"The court agreed this rule would cause great harm to the public that could not be undone, and it's likely the rule will be struck down for running afoul of the Clean Air Act," said John Walke, NRDC's clean air director.

Eric Schaeffer, a former EPA civil enforcement chief who now heads the Rockefeller Family Fund's Environmental Integrity Project, said the rule violated law by letting power companies replace up to 20 percent of the value of their plants at a time without obtaining Clean Air Act permits and installing pollution controls.

However, Scott Segal, director of the Electric Reliability Coordinating Council, a group of power companies, called the ruling "a setback for energy efficiency and environmental protection." He believes that the rule eventually will be upheld.

"The rule was based upon a substantial agency record with analysis, public hearings and thousands of rulemaking comments," Segal said. "We expect the rule will soon be back on course."

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Right now, there are no rules that control the emissions of mercury from power plants. The fact is, the Environmental Protection Agency's favored approach to regulating mercury goes much further in the long run than regulations previously considered.

EPA can take two approaches to mercury control One is a command-and-control approach that would require that controls be based on what is achievable today. The other, which is the cap-and-trade approach favored by the agency, will deliver better results based upon improvements in emerging mercury control technology. Under cap and trade, mercury emissions would be capped at 15 tons - a reduction of 70 percent from current levels. Studies demonstrate that we can get more reductions at a lower cost if controls are integrated with other control initiatives.

EPA will take public comment on both these proposals and will set a final rule in a year. No matter what approach we take, the agency, far from undoing regulations, will be regulating mercury emissions from coal-fired power plants for the first time in history.

Jane M. Kenny

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Tests of Lower Manhattan Apartments

Figures below represent numbers of apartments in the four census tracts with the highest lead exceedences)

Pre-cleaning lead Post-cleaning lead

exceedences exceedences

B.P.C. 12 3

(out of 74 apts. tested)

Tribeca east of Independence Plaza North 16 5

(out of 34 apts. tested)

South Street Seaport 8 1

(out of 27 apts. tested)

East Side of Financial District, 8 1

south of Seaport (out of 18 apts. tested)

Downtowners may never know the exact source of the elevated lead found in nearly one-third of apartments cleaned and tested by the Environmental Protection Agency after the Sept. 11, 2001 terror attacks, experts say.

Lead was the most common contaminant found among the 263 Lower Manhattan apartments the E.P.A. tested for a range of possible 9/11-related toxins, according to results released on Dec. 8. Of the 222 apartments E.P.A. contractors tested before and after cleaning, 70, or 31.5 percent, had lead levels before cleaning that exceeded the agency’s conservative benchmark of 25 micrograms per square foot.

Cities often have high background amounts of lead, experts say, making it difficult to pinpoint whether the amounts found in Lower Manhattan apartments come from the World Trade Center or other sources that can include lead found in paint or soil.

The E.P.A. results "clearly reflect the prevalence of lead throughout the city and in most urban cities," said Dr. Joel Foreman, the director of pediatrics at the health specialty unit at Mount Sinai.

"I’ve yet to see information that convinces me that there’s a lead hazard directly from the World Trade Center," Foreman said. Elevated lead levels are a health concern regardless of the source, he added.

Out of the 1544 wipe samples the E.P.A. took overall in over 200 apartments, 6.22 percent had lead levels over 40 micrograms per square foot, and 8.81 percent had levels over 25 micrograms per square foot. Forty micrograms per square foot is the standard used by the Department of Housing and Urban Development, and the E.P.A. adopted 25 micrograms as its standard for its Downtown cleanup.

One reason why scientists cannot determine the exact source of the lead found Downtown after Sept. 11 is that no comparable tests were taken in Lower Manhattan apartments before the trade center collapse. The E.P.A. tested and cleaned in apartments south of Canal, Pike and Allen Sts., and the background levels of lead in those apartments before 9/11 would be difficult if not impossible to determine without prior data, experts say.

"It’s not uncommon to see elevated dust lead levels" in New York City, said Dr. Jessica Leighton, an assistant commissioner with the New York City Department of Health and Mental Hygiene.

Even so, the health department studied the blood lead levels of Lower Manhattan children between Sept. 11, 2001 and Dec. 31, 2001 and found lower amounts than in the city as a whole, Leighton said. Children under seven are particularly susceptible to lead poisoning, which can cause cognitive defects and a lowered I.Q.

Catherine McVay Hughes, a member of Community Board 1 and an environmental activist, cautioned that the child blood lead statistics may not be a fail-safe indicator of Lower Manhattan children’s lead exposures. Children’s blood lead levels should be tested at ages one and two, but parents must be vigilant in requesting a blood lead test since pediatricians do not always perform these tests as needed, said Hughes, the mother of two boys. On Monday, the New York City Council passed a bill calling for more stringent protections against childhood lead poisoning, including an increase in building owners’ responsibilities to protect tenants with small children.

The E.P.A. began its voluntary residential cleaning and testing program nearly one year after the terror attacks, and apartments were still being sampled this spring. This time lag also makes it difficult to gauge the source of elevated lead, experts say.

"Lead does accumulate," said Dr. Jack Caravanos, a professor of Environmental Health at Hunter College, who studied personal exposures to dust and volatile organic chemicals from the Twin Towers’ collapse.

In other words, Caravanos explained, lead from usual urban sources can pile up if surfaces are not regularly dusted with a wet cloth. Caravanos and his team wipe glass plates every week at their E. 25th St. offices and test the dust samples for lead. About 10 micrograms per square foot accumulates per week, he said.

Therefore, an apartment that had gone unoccupied after Sept. 11, 2001 might have tested high for lead simply because no one had been around to clean it for a while, Caravanos said.

But the prevalence of background lead does not rule out the World Trade Center as a possible source of the lead found in some Downtown homes, Caravanos and others have said. Even though the Twin Towers were built after the city banned the use of lead-based paint in 1960, some trace levels of lead could likely have been present in W.T.C. paint, Caravanos said. In addition, lead could be found in some old computers and in plumbing, Hughes said.

"Using logic, we know some of the lead comes from the World Trade Center," said Mary Mears, a spokesperson for the E.P.A.

To help the E.P.A. determine the source of elevated lead in some Downtown apartments, the agency could have tested for lead-based paint in the apartments where it conducted wipe sampling, Foreman said. These tests cost between $500 and $1,000 per apartment, Foreman said, and they could possibly eliminate lead paint as a source.

The E.P.A. has spent just under $10 million on its voluntary residential cleaning and testing program to date, Mears said, with the full amount funded by the Federal Emergency Management Agency. The E.P.A. does not normally conduct lead-based paint tests and did not consider doing so as part of its Lower Manhattan cleanup, Mears said.

The E.P.A. will not go back and re-clean apartments where it found elevated lead, officials have said. Instead, the agency gives information to residents about cleaning methods to help reduce toxins.

Not many medical clinics frame and display a filthy gym towel.

But then, not many medical clinics are bankrolled by Tom Cruise, target ailing firefighters who worked at Ground Zero and follow the teachings of the Church of Scientology.

"We're helping people," Jim Woodworth, director of Downtown Medical, said the other day as several firefighters sat in the clinic's 168-degree sauna.

As for that soiled towel in the frame above his desk, Woodworth said its purple stains prove toxins still lurk inside rescue workers who toiled at Ground Zero.

"This is what our first patient was sweating out for 13 days," Woodworth said. "We took that to the lab. We found magnesium, mercury, aluminum.

"You know why I put that up there?" Woodworth asked. "I put that up there because that's freakin' cool."

But the Fire Department has no use for Downtown Medical and its disputed detoxification program.

FDNY officials are concerned that many of the 120 firefighters who sought help at the clinic stopped using inhalers and medications prescribed by department doctors.

Fire officials also say the department has no proof that the clinic's regimen of moderate exercise, vitamins and saunas removes toxins from the body.

"Our doctors went down there and checked it out," said Deputy Commissioner Frank Gribbon. "Their opinion was this was not a detoxification program. We don't endorse it."

This month, the city's largest firefighters union yanked its support of Downtown Medical.

The Uniformed Firefighters Association initially praised the clinic for its "unique" work. But sources said the union reconsidered after some firefighters questioned the clinic's methods and connections to Scientology - a movement described as both a persecuted religion and a dangerous cult.

A union spokesman, Tom Butler, told the Daily News that Downtown Medical "made claims that have yet to be backed up by scientific data.

"The clinic's ability to prove its case to the department's top doctors ... is absolutely critical in gaining the union's confidence," Butler said.

Fans of the program

Located on the fifth floor of an unimpressive office building on Fulton St., Downtown Medical is just blocks from Ground Zero. On one day, five firefighters at the center were receiving treatments aimed at curing respiratory problems, fatigue, memory loss and other problems they attribute to Ground Zero. All of them vouched for the program.

Bob Barrett, a 62-year-old retired firefighter, who worked at Ground Zero for several weeks, said the clinic's care improved his breathing and cured nagging muscle aches.

"I felt like I owed it to my family to take advantage of this detox," he said.

The detox program follows the teachings of the late L. Ron Hubbard, a science fiction writer who founded the Church of Scientology.

The regimen includes doses of the vitamin niacin, exercise, saunas, repeated showers and the digestion of a small amount of polyunsaturated oils.

The goal of the rundown is to remove toxic chemicals stored in the body. "We've had firemen sweat out black, yellow, gray, purple," Woodworth said. "We've had patients with yellow bowel movements, green bowel movements, purple bowel movements."

Patients undergo three-hour treatments seven days a week, from 21 to 40 days.

The regimen costs $5,200. But rescue workers pay nothing.

In many cases, Tom Cruise, perhaps Scientology's best-known adherent, picks up the tab. Woodworth said other donors also provide support.

The clinic's medical director, Dr. Kawabena Nyamekye, said the clinic does not tell rescue workers to stop taking prescription drugs but helps them get off their medicines if they insist.

"We make sure they do it safely," he said.

Clinic officials said they will have the regimen peer-reviewed, but added such research takes time.

Woodworth argued it would be unfair to deny the firefighters treatments until the research is complete. He insisted existing data prove the regimen works.

Dr. James Dahlgren, a toxicologist who teaches at UCLA, said the detox program helped a woman he monitored in 1987 who had PCB poisoning.

"I'm not a Scientologist, so I'm not interested in Mr. Hubbard's being the author," he said. "But it's something that seems to work."

But Dr. Kerry Kelly, the chief medical officer for the Fire Department, said she has seen no "objective evidence" to support Downtown Medical's claims.

"The essence of their program is you stay in it until you suddenly wake up and say, ‘I feel great,'" she said.

"It's hard to have faith in a program like that." She added, "I have trouble believing in these purple-stained towels."

Downtown Medical has its roots in a pair of California groups - the Foundation for Advancements in Science and Education, and HealthMed. Both have pushed Hubbard's teachings in the secular world for about 20 years.

The foundation and HealthMed, as well as Downtown Medical, have no formal ties to the Church of Scientology. But several of their top officials are church members.

Woodworth, a Scientologist, was executive director of HealthMed's office in Sacramento until last year. He said about half of Downtown Medical's staff are Scientologists.

Like Downtown Medical, the California groups have targeted people who were exposed to toxic substances on the job.

Called a failure

In the late 1980s, about 20 firefighters from Shreveport, La., began the detox program at HealthMed.

The City of Shreveport approved the care. But as costs mounted, the city's insurance carriers questioned the validity of the program and the city hired a consultant to evaluate it.

The resulting 1988 report, written by Dr. Ronald Gots, a toxicology expert from Bethesda, Md., found the treatments "preyed upon the fears of the concerned workers, but served no rational medical function."

Groups that monitor Scientology and consider it a cult supported that assessment. They also predicted Downtown Medical would use images of firefighters at the clinic in attempts to win credibility and funding.

"I wouldn't recommend the program to anyone under any circumstances whatsoever," said Rick Ross of the New Jersey-based Ross Institute, which tracks movements it deems cults.

Woodworth dismissed Gots, calling him a shill for insurance companies. He called Ross a thief, giving The News a 1975 article about Ross' arrest for stealing diamond jewelry when he was 22.

Woodworth, however, has his own troubled past.

He told the Daily News he was a drug addict until 1986.

"I enjoyed my pot very much," he said. "But I did the [Hubbard detox] program, and I never did another drug."

When The News toured Downtown Medical, copies of Hubbard's best-selling self-help book "Clear Body, Clear Mind" sat on a table in the lobby.

A Hubbard quotation was inscribed on the frame of a painting in the television lounge. It reads "Whatever man strives, wherever he works, whatever he does, the good he does outweighs the evil." But Woodworth and firefighters at the clinic said no efforts are made to convert anyone to Scientology.

Joe Higgins, a retired firefighter now paid by the clinic, said "If this was about religion, how many firefighters do you think would have gone through it? Zero. It helped me and it is helping a lot of other rescue workers."

Israel Miranda, the health and safety coordinator for the Uniformed EMTs and Paramedics union, also sits on Downtown Medical's advisory board. He has referred about 15 EMTs to the program but said he is not paid by the clinic.

While firefighters at the clinic said they seldom hear Hubbard mentioned, one name does come up constantly Tom Cruise.

Woodworth showed The News photos of Cruise visiting firefighters at the clinic. He also offered several rescue workers passes to last week's premiere of Cruise's latest movie, "The Last Samurai."

Woodworth said Cruise, who did not return calls, co-founded the clinic and continues to provide funding.

During a Nov. 28 appearance on CNN's "Larry King Live," Cruise praised the clinic for working "miracles."

The country's coal-fired power plants are the biggest source of airborne mercury, a toxic pollutant that threatens human health after it enters the food chain, usually through fish. In December 2000, after meetings with stakeholders, Bill Clinton's E.P.A. announced that it would require companies to install state-of-the-art pollution controls and committed the agency to producing a detailed proposal by this month. The general expectation was that the controls would be in place by late 2007, reducing mercury emissions by as much as 90 percent.

Then George Bush came to office and expectations changed. The coal-burning utilities went to work on the White House, the White House went to work on the E.P.A., and on Thursday came the result — a far weaker plan that seeks a meager 30 percent reduction in mercury emissions in the near term and only a 70 percent reduction by 2018. The net effect is that an estimated 300 tons of mercury that would have been captured by the Clinton strategy will now be allowed to poison the air.

The administration advances many arguments for its move — that the necessary technology will not be widely available by 2007, for example; that industry will not be able to afford it even if it is. Since independent studies suggest otherwise on both counts, one is left to conclude that the only argument that really mattered was that this plan would be a lot easier on the utilities.

Meanwhile, on a happier note, Mr. Leavitt has announced proposals for major reductions in sulfur dioxide, which causes acid rain, and nitrogen oxides, which contribute to both smog and acid rain. New controls on these pollutants have been in the making since 1997, when the Clinton administration settled on strict new health-based air quality standards for smog and soot.

Yes, the rules are changing and it’s not just the rules about how much mercury can be pumped into the air. The New Rules instituted by the Bush administration – whatever the issue of the day might be – are based on the Golden Rule, as in "He who has the gold, rules."

George Bush and his cronies are not anti-environment for ideological reasons; they’re anti-environment because while utilities can make a decent profit and still protect the environment, those same utilities can make an obscene profit by disregarding the environment and then kick some back to the re-election campaign. The New Rules, the Bush Rules, say nothing may be allowed to impede maximum profitability for campaign contributors, so environmental protection goes out the window.

What does that mean for mercury pollution? If you ask that question, if you care about the answer, you’re still playing by the Old Rules. For the sake of nostalgia, let’s consider the effects of mercury pollution. Forty-one states have advisories warning people to limit their consumption of fish because of mercury pollution. Children and women of childbearing age are warned not to eat any fish at all. Every lake in Vermont is contaminated with mercury, even though Vermont produces no mercury pollution.

The Washington Post yesterday carried a front-page story on the new mercury rule. Although it discussed various tons of mercury emissions and fish consumption advisories, the story never got around to explaining how mercury is harmful to human beings. The Washington Post is in transition from the Old Rules to the New. It prints a bit of news about pollution, but nothing about human health effects, because that’s passe, that’s Old Rules. The New Rules don’t care if people get sick and die, as long as the profits get recorded.

What the Washington Post didn’t report is that mercury poisons the central nervous system. Children exposed to mercury in the womb or at an early age have lower IQs, attention deficits, poor memories and cognitive abilities, poor eyesight and motor skills. Adults exposed to mercury can have higher rates of heart disease, higher blood pressure and reduced fertility. Only people who live by the Old Rules care about this, or about other health-related issues. Just look at the Medicare bill.

The Washington Post does mention that the technology to prevent the release of mercury exists. The Bush EPA will not force power plants to install the technology because it would cost money and the New Rules say nothing can impede the flow of money.

Today, the National Environmental Trust and the U.S. Public Interest Research Group released a report on mercury pollution. It lists which power plants in which states emit how much mercury. It names the names and gives the numbers. It is very Old Rules. It is Old Rules because it is futile to think that naming names and exposing culpability will make any Bush administration official care in the least about mercury pollution.

The National Environmental Trust and US PIRG are non-partisan; they think issues are more important than party politics. This too, is an Old Rule. The New Rules say everything is partisan and you either work for the Republican Party and the corporations or you get crushed.