CEC delivers final factual record regarding the Coal-fired Power Plants submission

Montreal, 4 April 2014—On 11 March 2014, the Secretariat of the Commission for Environmental Cooperation (CEC) submitted to the CEC Council a final factual record on submission SEM-04-005 (Coal-fired Power Plants). The submission was filed on 20 September 2004, by Friends of the Earth Canada, Friends of the Earth-US, Earthroots, Centre for Environmentally Sustainable Development, Great Lakes United, Pollution Probe, Waterkeeper Alliance, Sierra Club (US and Canada), represented by Waterkeeper Alliance and Ecojustice (formerly Sierra Legal Defence Fund). The Secretariat incorporated in the final factual record comments received from the Government of Canada on the accuracy of the draft factual record that had been sent to the CEC Council on 25 October 2013.

In the Coal-fired Power Plants submission, the Submitters assert that the United States is failing to effectively enforce the federal Clean Water Act (CWA) against coal-fired power plants for mercury emissions that are allegedly degrading thousands of rivers, lakes, and other water bodies across the United States. Specifically, the Submitters assert that the United States Environmental Protection Agency (EPA) has failed to effectively enforce water quality standard and total maximum daily load (TMDL) provisions of Section (§) 303 of the CWA, and permitting provisions required by the National Pollutant Discharge Elimination System (NPDES) pursuant to §402 of the CWA.

In its response, the United States maintained that the Submitters failed to consider “the CWA’s preference for state action in the first instance with respect to the prioritization and scheduling of TMDL development,” and noted that the Submitters have “erred in their interpretation of TMDL requirements” because the CWA “provides no authority to regulate nonpoint sources of pollutants.”

The factual record provides information relevant to a consideration of the Submitters’ assertions that the United States is failing to enforce §303 and §402 of the CWA in 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, which do not comply with, or that cause or contribute to non-attainment of, the water quality criteria for mercury in the receiving waterbodies.

The CEC Council may now, by a two-thirds vote, make the final factual record publicly available within 60 days, i.e., by 11 June 2014.

For more information, please visit the CEC’s Submissions on Enforcement Matters webpage, and the registry of submission SEM-04-005 (Coal-fired Power Plants). In preparing this factual record the Secretariat considered the submission in light of the United States’ response thereto, as well as independently gathered information.

The Secretariat administers the process set out in Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC), which allows the public to submit assertions to the Secretariat concerning the effective enforcement of environmental law by a NAAEC Party (Canada, Mexico, or the US). The CEC has published Guidelines for Submissions on Enforcement Matters explaining these procedures.

The purpose of a factual record is to provide an objective presentation of the facts relevant to the assertion(s) set forth in a submission, and to allow readers to draw their own conclusions regarding a Party’s environmental law enforcement. Although a factual record is not to contain conclusions or recommendations, it is expected to outline the history of the environmental enforcement issue raised in the submission, the relevant legal obligations of the Party, and the actions of the Party in attempting to fulfill those obligations.

For further information, please visit the CEC Submissions on Enforcement Matters website.