| Montreal, 13/12/2005 – On 5 December 2005, the Secretariat of the Commission for Environmental Cooperation (CEC) of North America issued a notification recommending to the CEC Council that a factual record be developed for the SEM-04-005 (Coal-fired Power Plants) submission.
In the submission, filed with the CEC Secretariat on 20 September 2004, 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 (the Submitters), assert that the United States is failing to effectively enforce the federal Clean Water Act (CWA) against coal-fired power plants with respect to mercury discharges to air and water. 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 alleged failure to enforce the CWA in those ten states is "reflective of the broader problem in the U.S." In its response, filed on 25 April 2005, the United States contends that the relevant facts and law do not support a conclusion that it is failing to effectively enforce its environmental legislation and that pending domestic judicial proceedings preclude further Secretariat review of this matter.
After reviewing the submission in light of the United States' response, the Secretariat notified the Council that it considers the submission to warrant the development of a factual record. The Secretariat determined that the submission raises central questions that the response leaves open regarding the United States' enforcement of the CWA in connection with discharges of mercury from coal-fired power plants to air and water. The notification states that a factual record is warranted to develop and present information regarding Submitters' assertions that the United States Environmental Protection Agency (EPA) is failing to effectively enforce the CWA in the ten highlighted states by issuing or renewing NPDES permits (or allowing states to issue or renew such permits) that allow for point source discharges of mercury that cause or contribute to non-attainment of water quality standards for mercury in the receiving waterbodies. The notification also states that a factual record is warranted to examine assertions that EPA is failing to effectively ensure adoption in the ten states of concern of total maximum daily loads (TMDLs) of mercury for waterways that do not meet water quality standards for mercury. The Submitters assert that these permits and TMDLs must account for air emissions of mercury from upwind coal-fired power plants.
The Secretariat did not recommend a factual record for the Submitters' assertion that the United States is failing to impose controls on air emissions of coal-fired power plants through TMDLs or other CWA mechanisms. The Secretariat noted that issues relating to control of mercury emissions from coal-fired power plants are currently under review in litigation challenging rules recently adopted in the United States under the Clean Air Act.
The CEC was established under the North American Agreement on Environmental Cooperation (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 Council, the organization's governing body, is composed of the top environment officials of Canada, Mexico and the United States.
The citizen submissions mechanism of the CEC enables the public to play a whistle-blower role on matters of environmental law enforcement. Under Article 14 of the NAAEC, any person or nongovernmental organization may submit to the Secretariat a claim alleging that a NAFTA partner is failing to effectively enforce its environmental law.
The Secretariat informed the Council of its recommendation on 5 December 2005, and now, five business days later, is able to provide public notification of the determination and to present its reasons in the public registry. The Secretariat will prepare a factual record in connection with the submission if the Council, by a two-thirds vote, instructs it to do so.
For more information, please visit the CEC's Citizen Submissions on Enforcement Matters page. |
