Summary of the matter addressed in the submission:

The Submitters assert that emissions of mercury, sulfur dioxide and nitrogen oxides from Ontario Power Generation’s (OPG) coal-powered facilities pollute the air and water downwind, in eastern Canada and northeastern United States. They assert that Canada is failing to effectively enforce sections 166 and 176 of the Canadian Environmental Protection Act, which, they claim, obligate the Minister of the Environment to take action to address Canadian sources of pollution that he has reason to believe are causing air or water pollution in the United States. They also assert that Canada is failing to effectively enforce section 36(3) of the Fisheries Act against the OPG facilities. Section 36(3) prohibits the deposit of a deleterious substance into water frequented by fish or in any place under any conditions where the substance may enter such water.

Summary of the response provided by the Party:

In its response, Canada affirms that it is concerned about the harmful effects of NOx, SO2 and mercury from OPG’s Nanticoke, Lambton and Lakeview Generating Stations. Canada asserts that it has been working cooperatively with the government of Ontario for many years to ensure that these atmospheric emissions are reduced in a timely fashion, taking into account economic and competitive considerations vis-…-vis the United States. Canada explains that under a 1998 Canada-wide Accord on Environmental Harmonization (Harmonization Accord), the federal government and the provinces work together to develop strategies to address environmental issues, and they agree on the development of Canada-wide Standards (CWS) for emissions of specific pollutants. Canada explains that the Harmonization Accord is used to determine the order of government “best situated” to effectively address the environmental concern in question. However, if that government is unable to fulfill its obligations, the concerned governments will develop an alternative plan. Canada states that in the case of stationary sources of emissions, such as OPG’s facilities, Canada’s practice is to pursue a multilevel and consensus-based approach when setting expectations, such as a CWS. Canada states that s. 176 of CEPA, 1999, which concerns international water pollution, does not address a situation where airborne pollutants blow over international borders and ultimately descend into water. In regard to s. 166 of CEPA, 1999, which addresses international air pollution, Canada outlines federal and provincial actions designed to limit emissions of the pollutants identified by the Submitters at OPG’s facilities. Canada explains that NOx emissions from OPG facilities are being addressed under the Ozone Annex to the Canada-US Air Quality Agreement and the Canada-wide Acid Rain Strategy for Post-2000. Under the Ozone Annex, Canada has agreed to a 39-kilotonne cap, by 2007, on NOx emissions from fossil-fuel electric power generation emission facilities located within a specific area of Ontario. Canada is working with the new Ontario provincial government to determine whether the province can use its laws to meet the 39-kilotonne cap. If not, Canada will consider appropriate action under federal law. Under the Acid Rain Strategy, Canada is funding nitrogen research that will provide a scientific basis for determining whether further action on NOx may be required. As regards SO2, Canada asserts that it has cut emissions by more than 45 percent since 1980. Under the Acid Rain Strategy, Ontario announced a SO2 reduction target of 50 percent by 2015. To reach this target, Ontario is phasing out the use of coal at the Lakeview Generating Station by 2005, eliminating SO2 emissions there, and is implementing emission caps intended to reduce SO2 emissions from fossil fuel burning power plants by 25 percent by 2007. In light of Ontario’s actions, Canada asserts that there is no indication that action by the federal government is warranted. As regards mercury, Canada asserts that a CWS on mercury emissions originating from the electric power generation sector will be developed by 2005 and is expected to be implemented by 2010. Canada affirms that the federal and provincial governments have also committed to explore the national capture of mercury from coal burned in the range of 60 to 90 percent, based on current and emerging technology. The phase-out of coal burning at the Lakeview Generating Station by 2005 will eliminate one source of mercury emissions. Concerning section 36(3) of the Fisheries Act, which prohibits the deposit of deleterious substances into waters frequented by fish, Canada asserts that there is insufficient evidence of a causal link between mercury emissions originating from OPG’s facilities and the mercury found in fish-bearing waters. Consequently, Environment Canada is working on an inspection program in Ontario that will include the difficult task of sampling and tracking the fate of mercury emissions from OPG’s facilities. Canada notes that OPG’s Nanticoke facility reported a discharge of one kilogram of mercury into water in 2001, and states that at this time, the government of Canada is focusing its efforts on Nanticoke’s atmospheric releases of mercury, which in 2001 were 226 times greater than its reported mercury discharge into water.

Names and citations of the environmental laws in question:

Sections 166 and 176 of the Canadian Environmental Protection Act and section 36(3) of the federal Fisheries Act.

Submitter(s):

49 Canadian and United States nongovernmental organizations

Submission Timeline

May 1, 2003

The Secretariat received a submission and began a preliminary analysis of it under the guidelines.

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 08/05/2003

Submission - Submission authored by Submitter(s) on 01/05/2003

July 15, 2003

The Secretariat notified the submitter(s) that the submission did not meet all of the Article 14(1) criteria and the submitter(s) had 30 days to provide the Secretariat with a revised submission that conforms with Article 14(1).

Determination - Secretariat Determination under Article 14 (1) authored by Secretariat on 15/07/2003

August 14, 2003

The Secretariat received a revised submission and began to analyze it.

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 14/08/2003

Submission - Submission authored by Submitter(s) on

September 19, 2003

The Secretariat determined that the submission met the criteria of Article 14(1) and requested a response from the concerned government Party in accordance with Article 14(2).

Determination - Secretariat Determination under Article 14 (1) and 14 (2) authored by Secretariat on 19/09/2003

November 18, 2003

The Secretariat received a response from the concerned government Party and began considering whether to recommend a factual record.

Party Response - Response from the Party under Article 14 (3) authored by Canada on 18/11/2003

Acknowledgement - authored by Secretariat on

May 28, 2004

The Secretariat determined not to recommend the preparation of a factual record. Under guideline 9.6, the process was terminated.

Determination - Secretariat Determination under Article 15 (1) authored by Secretariat on 28/05/2004