NAFTA Secretariat Deems U.S. Mercury Emissions Worth Investigating

MONTREAL, Quebec, Canada, December 14, 2005 (ENS) - The environmental agency that polices the North American Free Trade Agreement Tuesday said that it intends to investigate the United States government for failing to enforce the federal Clean Water Act against coal-fired power plants with respect to mercury discharges to air and water.

The Secretariat of the Commission for Environmental Cooperation (CEC) of North America issued a notification recommending to the CEC Council that a factual record be developed for a submission by U.S. and Canadian environmental groups that claims the U.S. government is allowing these power plants to emit mercury in violation of the Clean Water Act.

The Secretariat will prepare a factual record in connection with the submission if the Council, by a two-thirds vote, instructs it to do so. The Council, the CEC's governing body, is composed of the top environment officials of Canada, Mexico and the United States.

The submission was filed with the CEC Secretariat on September 20, 2004 by the 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 the Sierra Club.

“Under President [George W.] Bush, the EPA has become simply a taxpayer funded industry lobbyist group, working hard every day to strip environmental protections from the American people,” said Scott Edwards, legal director of Waterkeeper Alliance.

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Alabama Power's James H Miller coal-fired power plant. (Photo courtesy Power)
The submitters claim that emissions from power plants in 10 states - Alabama, Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, Texas and West Virginia - represent almost 60 percent of U.S. mercury emissions from coal-fired power plants and that the alleged failure to enforce the Clean Water Act in those 10 states is "reflective of the broader problem in the U.S."

In its response, filed on April 25, 2005, the United States government contends that the relevant facts and law do not support a conclusion that it is failing to effectively enforce its environmental legislation. Government attorneys argued that pending domestic judicial proceedings preclude further Secretariat review of this matter.

After reviewing the submission in light of the United States' response, the Secretariat notified the Council that it considers the submission to warrant the development of a factual record.

The Secretariat determined that the submission raises central questions that the response leaves open regarding the United States' enforcement of the Clean Water Act in connection with discharges of mercury from coal-fired power plants to air and water.

The notification states 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 Clean Water Act in the 10 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.

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Pennsylvania's Mitchell power plant is operated by Allegheny Energy Supply. In 2003, a pilot mercury removal plant was completed at Mitchell to absorb mercury on fly ash and remove it as the ash is removed.(Photo courtesy University of Pittsburgh)
The notification also states that a factual record is warranted to examine assertions that the EPA is failing to effectively ensure adoption in the 10 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.

"U.S. coal-fired power plants are the largest source of mercury emissions in North America, spewing 48 tons each year,” said Dr. Elaine MacDonald with Sierra Legal in Toronto.

“The CEC's investigation will highlight the connection between mercury emissions from power plants and the thousands of mercury contaminated water bodies and ensure that the EPA cannot continue to ignore the impact of toxic air pollutants on water quality," MacDonald said.

The Secretariat did not recommend a factual record for the submitters' assertion that the United States is failing to impose controls on air emissions of coal-fired power plants through TMDLs or other Clean Water Act mechanisms.

The Secretariat noted that issues relating to control of mercury emissions from coal-fired power plants are currently under review in litigation challenging rules recently adopted in the United States under the Clean Air Act.

Earlier this year, the EPA enacted a regulation that places restrictions on power plant mercury emissions that environmental groups say are "minimal." They allege that the cap and trade system established under that regulation will allow coal-fired power plants to emit mercury for 10 years longer than the current provisions of the Clean Air Act would allow at the expense of public health.

Several environmental groups, including Waterkeeper Alliance, are currently challenging the EPA mercury regulation in a U.S. federal court. They are concerned about mercury emissions because the metal is a neurotoxin.

Exposure to high levels of metallic, inorganic, or organic mercury can permanently damage the brain, kidneys, and developing fetus, according to the Agency for Toxic Substances and Disease Registry (ATSDR), a U.S. federal agency.

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West Virginia's Mountaineer coal fired power station is operated by Ohio Power Company. (Photo courtesy AEP)
Metallic mercury and inorganic mercury compounds enter the air from mining ore deposits, burning coal and waste, and from manufacturing plants, the ATSDR explains. It enters the water or soil from natural deposits, disposal of wastes, and volcanic activity.

Methylmercury may be formed in water and soil by the action of bacteria on metallic and inorganic mercury. Methylmercury builds up in the tissues of fish, and bioaccumulates up the food chain so that larger and older fish tend to have the highest levels of mercury.

In the past 10 years, the number of U.S. states issuing warnings against eating fish because of mercury poisoning has jumped from 27 to 45. One-third of all U.S. lakes and hundreds of thousands of river miles are affected by these advisories today, the submitters point out.

The CEC was established under the North American Agreement on Environmental Cooperation to address environmental issues in North America from a continental perspective, with a focus on those issues arising in the context of liberalized trade.

The citizen submissions mechanism of the CEC enables the public to play a whistleblower role on matters of environmental law enforcement. Under Article 14 of the Agreement, any person or nongovernmental organization may submit to the Secretariat a claim alleging that a NAFTA partner is failing to effectively enforce its environmental law.

Edwards said, "The CEC Secretariat's decision is a welcome step towards ensuring that the U.S. government acts to protect the health of our waterways and at-risk mothers and children in the U.S. and Canada."