CEC Council instructs Secretariat to develop a factual record on the Coal-fired Power Plants submission

The submission was filed with the Secretariat on 16 September 2004, by Sierra Legal Defence Fund—now Ecojustice—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”).

The Submitters assert that the United States is failing to effectively enforce the federal Clean Water Act (CWA) with respect to mercury discharges to air and water from coal-fired power plants. The Submitters assert that water discharge permits issued or renewed by the relevant authority are allowing mercury discharges into waters already impaired by mercury, and argue that these permits must account for atmospheric deposition into water bodies of mercury that originated from coal-fired power plants. They also assert that the Environmental Protection Agency (EPA) is failing to meet its responsibilities in approving or adopting total maximum daily loads (TMDLs)—the calculation of the maximum amount of a pollutant that a water body can receive and still safely meet water quality standards. The Submitters assert that, in developing TMDLs, the EPA is failing to account for and impose limits on nonpoint sources of mercury. The Submitters claim that emissions from coal-fired power utilities in ten US states represent almost 60 percent of mercury emissions from these facilities in that country. They further allege that failure to enforce the CWA in these ten states is reflective of a broader problem in the United States.

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 the CWA in connection to mercury emissions to air and water from coal-fired power plants and that pending domestic judicial proceedings preclude further Secretariat review of this matter.

On 5 December 2005, the Secretariat recommended to the CEC Council that a factual record be developed for the submission. In its notification, the Secretariat considers that central questions remain open in connection to coal-fired power plants discharge permits, allegedly causing non-attainment of water quality standards for mercury in rivers, lakes and other water bodies across the United States. The Secretariat also recommended that a factual record be developed to examine actions of the Environmental Protection Agency (EPA) with respect to allegations on neglecting to account for airborne mercury when calculating TMDLs under the CWA.

Today, the Council, by means of Resolution 08-03, unanimously decided to instruct the Secretariat to develop a factual record. The Council requested that the Secretariat gather facts with respect to open questions relevant to a determination of whether the United States is failing to effectively enforce its environmental law, concerning mercury release to water from coal-fired power plants.

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 environmental 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 a claim alleging that a NAFTA partner has failed to effectively enforce its environmental law. Following a review of the submission, the CEC Secretariat may investigate the matter and prepare a factual record of its findings.

For more information, please visit the CEC's Citizen Submissions on Enforcement Matters page.