| Montreal, 3/05/2005 – On 25 April 2005, the Secretariat of the Commission for Environmental Cooperation (CEC) received the United States' response to submission SEM-04-005 (Coal-fired Power Plants), submitted to the Secretariat on 20 September 2004, by the Sierra Legal Defence Fund and Waterkeeper Alliance on behalf of Friends of the Earth Canada, Friends of the Earth-US, Earthroots, Centre for Environmentally Sustainable Development, Great Lakes United, Pollution Probe, Waterkeeper Alliance, and Sierra Club (US and Canada). The CEC will now examine the submission in light of the United States' response to determine if a factual record is warranted.
The Submitters allege that the United States is failing to effectively enforce the federal Clean Water Act (CWA) against coal-fired power plants for mercury emissions and discharges to air and water during the period 1993 through 2004. The Submitters claim that emissions from power plants in ten states - Alabama, Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, Texas and West Virginia, represent almost 60 percent of U.S. mercury emissions from coal-fired power plants and that the experience in those ten states is "reflective of the broader problem in the U.S."
In its response, the U.S. acknowledges that mercury is a highly persistent, toxic pollutant that accumulates in the food chain and that humans are exposed to methylmercury primarily by eating contaminated fish. The U.S. asserts that it has taken significant steps to reduce domestic mercury air emissions in response to these health risks and that Clean Air Act (CAA) rules finalized in March 2005 on air emissions of mercury from coal-power plants will further significantly reduce emissions and address the Submitters' core concern.
The U.S. asserts that the increase in fish consumption advisories that the Submitters document is due in large part to steps the U.S. Environmental Protection Agency (EPA) is taking to address mercury contamination in water and does not necessarily indicate that the levels or frequency of mercury contamination are increasing, or any failure to effectively enforce environmental laws. The U.S. states that the Submitters' assertions regarding Total Maximum Daily Loads (TMDLs) under the CWA are misplaced in that TMDLs are planning tools and do not regulate sources. The U.S. states that the CWA provides no regulatory mechanism to control nonpoint source pollution, such as air emissions from coal-fired power plants. With respect to the Submitters' assertions regarding the antidegradation program under the CWA, the U.S. states that State antidegradation policies serve to protect water quality when point sources of pollution are being permitted and that the CWA does not authorize EPA to regulate, or compel States to regulate, nonpoint sources of pollution. With respect to Submitters' allegations regarding EPA's implementation of the NPDES program under the CWA, the U.S. asserts that the CWA does not prohibit point source discharges to an impaired waterbody and describes EPA's actions to date and plans for the future to improve monitoring and permitting of mercury discharges to water. The U.S. states that EPA commits to reviewing closely the renewal of the approximately 40 permits identified by Submitters for coal-fired power plants that have reported significant discharges of mercury to water.
The U.S. states that its regulatory efforts directed at emissions of mercury from coal-fired power plants under the CAA and the CWA reflect a reasonable exercise of its regulatory discretion and that the present situation with regard to mercury emissions from coal-fired power plants in the U.S. is a legally complex situation that is dynamic and improving. The U.S. also asserts that the Submitters' allegations are the subject of pending judicial and administrative proceedings and that therefore, the Secretariat should proceed no further with the submission. The U.S. asserts that there are ample private remedies available under U.S. law to address the issues raised by the Submitters.
Under Article 15(1) of the North American Agreement on Environmental Cooperation, the Secretariat must now advise the CEC Council whether it considers that, in light of the United States' response, the submission warrants development of a factual record.
The CEC was created by the governments of Canada, Mexico and the United States to address environmental concerns in North America, to help prevent potential trade and environment conflicts, and to promote the effective enforcement of environmental law.
Please visit the Citizen Submissions on Enforcement Matters page for more information.
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