January 9, 2006

Factual record recommended for submission to CEC on coal-fired plants

The Commission for Environmental Co-operation (CEC) of North America has recommended to the CEC Council that a factual record be developed for a submission on coal-fired power plants (SEM-04-005), filed with the CEC in September 2004. The submission, filed by an alliance of Canadian and U.S. environmental organizations, claimed that the U.S. 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 (ELW September 27, 2004).

The groups also contended that emissions from power plants in ten states-Alabama, Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, Texas and West Virginia-represent almost 60% of U.S. mercury emissions from coal-fired power plants and said the alleged failure to enforce the CWA in those ten states is "reflective of the broader problem in the U.S."

The petition submitters included 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 U.S. responded to the submission in April 2005, arguing that the relevant facts and law do not support a conclusion that it is failing to effectively enforce its environmental legislation. Its response added that pending domestic judicial proceedings preclude further review of this matter by the CEC Secretariat.

After reviewing the submission in light of the U.S. response, the Secretariat concluded that the submission warrants the development of a factual record, based on its view that the submission raised central questions that the response has left 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 Secretariat notified the Council of its conclusion, stating that a factual record is warranted to develop and present information regarding the submitters' assertions that the U.S. 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 the 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 U.S. is failing to impose controls on air emissions of coal-fired power plants through TMDLs or other CWA mechanisms. Issues relating to control of mercury emissions from coal-fired power plants are currently under review in litigation challenging recently-adopted rules under the U.S. Clean Air Act.

The recommendation for a factual record will be considered by the CEC Council, which consists of the top environment officials of Canada, the U.S. and Mexico. The Secretariat will prepare the record if the Council, by a two-thirds vote, instructs it to do so.

More information is available on the CEC Web site, www.cec.org.

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