CEC Secretariat requests information from Canada on BC Salmon, and terminates a United States submission on Louisiana Refinery Releases

Montreal, 8 November 2013—The Secretariat of the Commission for Environmental Cooperation (CEC) has submitted a request to the Government of Canada for further information in response to a letter from Canada concerning submission SEM-12-001 (BC Salmon Farms). In the BC Salmon Farms submission, the Submitters assert that Canada is failing to effectively enforce certain provisions of the federal Fisheries Act.

In the letter, received on 7 October 2013, Canada informed the Secretariat that two legal proceedings were underway in Canada and that continuing with the submission would result in duplication of and/or interference with these legal proceedings, and would also “conflict with Canada’s commitment, under Article 6 of the North American Agreement on Environmental Cooperation (NAAEC),” regarding “Private Access to Remedies.”

The Secretariat is requesting an explanation of how the legal proceedings meet the definition of pending proceedings in Article 45(3) of NAAEC, and how the Secretariat’s development of a factual record would result in duplication of, and/or interference with, these proceedings. The Secretariat is also requesting further information concerning Canada’s statement that proceeding further with the BC Salmon submission would conflict with Canada’s commitments in NAAEC Article 6.

The requested information will assist the Secretariat in determining whether to proceed with the Submission and consider recommending the preparation of a factual record.

Article 21(1) of the NAAEC allows the Secretariat to request information from the Parties to the NAAEC. A NAAEC Party is required, in response to such a request, to provide information promptly.

For more information, please visit the CEC’s Submissions on Enforcement Matters webpage, and the registry of submission SEM-12-001 (BC Salmon Farms).

Also this week, on 5 November 2013, the Secretariat of the Commission for Environmental Cooperation (CEC) terminated the process for the SEM-13-002 (Louisiana Refinery Releasessubmission, which had been filed on 3 July 2013.

The Submitter, the Louisiana Bucket Brigade, asserted that the United States had failed to use the Clean Air Act (CAA) to address “environmental hazards discovered in the agency’s July 2012 Risk Management Plan (RMP) inspection of the ExxonMobil Refinery in Baton Rouge, Louisiana (EMBRRF).” The Submitter asserted further that “the RMP for the refinery does not comply with US environmental law and, in particular, CAA(r) 40 CFR Part 68, Accidental Release Prevention.”

On 12 August 2013, the Secretariat determined that the submission did not meet all the admissibility criteria listed in Article 14(1) of the North American Agreement on Environmental Cooperation (NAAEC) and gave the Submitters 60 days to file a revised submission, pursuant to Guideline 6.2 of the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation (the “Guidelines”).

On 5 November 2013, the submitter notified the Secretariat that it would not be submitting a revised submission, “…because the Louisiana Department of Environmental Quality issued a settlement on August 23, 2013,” and that “the object of the SEM process is to prod enforcement where there was none and LDEQ’s settlement is an enforcement action, albeit a very weak one.” As no revised submission conforming to Article 14(1) was received by the Secretariat within the relevant time period, the Secretariat was required by Guideline 6.3 to terminate the process with respect to submission SEM-13-003 (Louisiana Refinery Releases).

NAAEC Articles 14 and 15 include procedures allowing private parties to make submissions to the CEC Secretariat, asserting “that a Party [to the NAAEC] is failing to effectively enforce its environmental law.” The CEC has published Guidelines for Submissions on Enforcement Matters explaining these procedures.

In appropriate cases, and upon instruction from the CEC Council, the CEC Secretariat may examine a submission further and develop a factual record.