| Montreal, 31/05/2004 – On 28 May 2004, the Secretariat of the Commission for Environmental Cooperation dismissed the SEM-03-001/Ontario Power Generation (OPG) revised submission, filed with the Secretariat on 14 August 2003, by 49 Canadian and United States nongovernmental organizations under Article 14 of the North American Agreement for Environmental Cooperation (NAAEC). After reviewing the submission in light of Canada's response, the Secretariat concluded that the submission does not warrant the development of a factual record.
The Submitters assert that emissions of mercury, sulfur dioxide (SO2) and nitrogen oxides (NOx) from OPG's coal-fired power plants in southern Ontario pollute the air and water downwind, in eastern Canada and the northeastern United States and that Canada is failing to effectively enforce sections 166 and 176 of the Canadian Environmental Protection Act, 1999 (CEPA, 1999) and section 36(3) of the Fisheries Act against the OPG facilities.
In its response, Canada states that it has been working cooperatively with the government of Ontario for many years to ensure that OPG's atmospheric emissions are reduced in a timely fashion. In light of Ontario's ongoing efforts, Canada asserts that there is no need at this time for federal action pursuant to section 166 of CEPA, 1999. Concerning section 36(3) of the Fisheries Act, which prohibits the deposit of deleterious substances into waters frequented by fish, Canada asserts that there is insufficient evidence of a causal link between mercury emissions originating from OPG's facilities and the mercury found in fish-bearing waters. Consequently, Environment Canada is working on an inspection program in Ontario that will include the difficult task of sampling and tracking the fate of mercury emissions from OPG's facilities.
CEPA section 166 calls for federal action when there is reason to believe that air pollution from a Canadian source creates, or may reasonably be anticipated to create, air pollution in a foreign country or air pollution that violates or is likely to violate an international agreement. In regard to non-federal sources of pollution such as OPG, section 166 contemplates, first, consultations to determine whether the provincial government can address the transboundary pollution and, second, if the provincial government cannot or does not take action, either a notice requiring preparation and implementation of a pollution prevention plan or recommendation of regulations to the Governor in Council regarding the pollution. The Act does not establish time limits within which Environment Canada must initiate or conclude consultations with the provincial government or take action where the provincial government cannot or does not take action.
The Secretariat concluded that the information in the submission and the Canadian response regarding Ontario's emission reduction targets and the concrete actions Ontario is taking, together with recent media reports of the planned closure of some or all of OPG's coal-fired power plants, indicates a dynamic and improving situation in regard to the transboundary pollution of concern to the Submitters. This is so even if the announced closure of OPG's coal-fired power plants remains uncertain. While the passage of time without any progress on the part of Ontario or the federal government may, in the future, raise a question regarding enforcement of section 166 regarding OPG's emissions, the Secretariat concluded that, at this time, there is no central question regarding the environment minister's exercise of his broad discretion under section 166 that would warrant preparation of a factual record.
Regarding section 36(3) of the Fisheries Act, the Secretariat found that, in view of the apparently unprecedented nature of the application of section 36(3) to air emissions that are eventually deposited into waters frequented by fish, Canada's inspection of OPG's mercury emissions with a view to considering whether action is warranted under s. 36(3) is a significant step. Because Canada is early in the process of addressing the complexities inherent in undertaking the sampling and studies involved, and noting as well the announced closing of some or all of OPG's coal-fired facilities, the Secretariat concluded that a factual record at this early stage in Canada's possible pursuit of s. 36(3) charges would be of limited value.
The CEC was established under NAAEC to address environmental issues in North America from a continental perspective, with a particular focus on those arising in the context of liberalized trade. The CEC Council, the organization's governing body, is composed of the top environment officials of Canada, Mexico and the United States.
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