http://www.ens-newswire.com/ens/dec2005/2005-12-14-01.asp

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.

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.