New York Law Suit Against Mid-Western

Coal-Fired Power Plants

The Policy and Finance Committee recommends the adoption of the following report (January 17, 2000) from Dr. Sheela V. Basrur, Medical Officer of Health:

Purpose:

This report responds to Council's request to investigate the legal and resource implications required for the City to support New York's legal action against mid-western U.S. coal-fired power plants as a "friend of the court", and has been prepared in consultation with staff in Legal Services and Works and Emergency Services.

Financial Implications and Impact Statement:

It has been determined that minimal financial resources and a manageable level of staff resources would be required to seek an opportunity to submit a "friend of the court" brief in support of New York State's legal action .

Recommendations:

It is recommended that Toronto City Council:

(1) provide the City Solicitor and the Medical Officer of Health with approval to seek to submit, to prepare and to submit as appropriate a "friend of the court" brief in support of the legal action initiated by New York State and the U.S. Environmental Protection Agency (EPA);

(2) forward this report for information to the Board of Health, Works Committee, the Environmental Task Force and the Toronto Inter-Departmental Environment Team; and

(3) instruct the City Solicitor and the Medical Officer of Health to forward a copy of the "friend of the court" brief to the Association of Municipalities of Ontario (AMO) for endorsement when completed.

Background:

At its meeting of October 26, 1999 Toronto City Council adopted a report of the Environmental Task Force entitled "New York Law Suit Against Mid-Western Coal-fired Power Plants" thereby providing approval in principle for the City to support New York's legal action as a "Friend of the Court" and directing the City Solicitor, in consultation with the Medical Officer of Health and the Commissioner of Works and Emergency Services, to investigate the legal and resource implications required for the action, and report back to Council through the Policy and Finance Committee. This report has been prepared in response to that recommendation in consultation with staff in Legal and Works and Emergency Services.

Comments:

(1) Smog and Human Health in Toronto

Smog is a significant health hazard for the residents of Toronto. The levels of ozone and particulate matter (two major components of smog) in Toronto's air commonly exceed the levels at which serious health effects, hospitalizations and premature deaths have been demonstrated. The Ontario Ministry of Environment has estimated that 1800 premature deaths and 1400 hospitalizations each year in Ontario can be attributed to the particulate matter in Ontario's air. The burden of illness is understood to be much greater when the gaseous air pollutants, such as ozone, are considered as well as the particulate matter in air. Environment Canada has estimated that the common gaseous and particulate air pollutants combined are responsible for 16,000 premature deaths each year in Canada. Toronto Public Health is currently conducting a study to accurately estimate the burden of illness in Toronto that can be attributed to poor air quality.

(2) Coal-Fired Power Plants and Smog

Smog episodes in Toronto are very closely linked to the generation of electricity in coal-fired plants in the mid-western United States. The Ontario Ministry of Environment estimates that about 50 percent of the ozone which affects Toronto and the rest of southern Ontario in the summer comes from the United States. Most of that ozone originates as nitrogen oxides emitted from the coal-fired plants in the mid-western United States.

U.S. coal-fired power plants are responsible for 26 percent of the nitrogen oxides emitted in that country. Many of the large coal-fired power plants are located in the Ohio Valley, which during the summer months, is upwind from Toronto and the rest of southern Ontario. With computer modeling, the Canada-United States Air Quality Committee has been able to demonstrate that ozone concentrations in the Windsor-Quebec City corridor are increased when the wind blows from the Ohio River Valley in the United States.

U.S. coal-fired power plants are also the most significant source of sulphur dioxide in North America. In 1995, they were responsible for 63 percent of the sulphur dioxide emissions in that country. When sulphur dioxide reacts with other chemicals in the atmosphere, it produces sulphates, a fine acid mist which accounts for 25 to 40 percent of the particulate matter in air. The Acidifying Emissions Task Group assembled by the federal government has estimated that U.S. sources contribute 90 to 95 percent of the sulphates that are deposited in southwestern Ontario. Before those sulphates are deposited on the ground as acid rain, they contribute to the particulate matter in air that harms human health. Nitrogen oxide emissions also contribute to air borne concentrations of fine particulate matter, though to a lesser degree in eastern North America than sulphates.

(3) New York's Legal Action

In September 1999, New York's Attorney General announced his intention to sue seventeen coal-fired power plants in five mid-western states for failing to upgrade their pollution controls when they modified their plants. When the U.S. Clean Air Act was introduced, existing coal-fired power plants were exempted from the more rigorous air emission standards applicable to new power plants. However, the U.S. Clean Air Act also indicates that if an existing plant is substantially modified or expanded, it must comply with the "lowest achievable emissions reductions" or "best available control technology" requirements of the Act. New York State contends that seventeen coal-fired power plants that are operating upwind of New York have made substantial modifications to their plants without upgrading their air pollution controls as the U.S. Clean Air Act requires. Twelve of these plants are owned and operated by the American Electric Power Company (AEP).

Spurred by the actions of New York State and other jurisdictions and community groups, the U.S. Environmental Protection Agency (EPA) announced in November 1999 its intention to file seven legal actions against thirty-seven coal-fired power plants across the United States for being out of compliance with the U.S. Clean Air Act. The first legal action has been filed against six wholly-owned subsidiaries of the AEP. The U.S. EPA is expected to file additional "enforcement actions" against other companies later this year.

New York's Attorney General subsequently decided that New York State will join the U.S. EPA case against AEP as an intervenor rather than filing its own case. Citizen groups in the United States have filed a separate law suit against AEP, on essentially the same grounds as set forth in the U.S. EPA case against the utility. The plaintiffs in that case include environmental and health groups from the mid-western states and national organizations.

If these legal actions are successful in forcing the identified coal-fired power plants to comply with the requirements of the U.S. Clean Air Act, air emissions from these plants could be significantly reduced, and air quality in southern Ontario could be substantially improved.

(4) Toronto's Support for New York's Legal Action

Given that New York State has now joined the U.S. EPA's legal action against AEP, the City of Toronto is now considering whether it can support this particular legal action with a "friend of the court" brief. A "friend of the court" brief, if permitted, can be done in writing and does not require participation of a witness. Consequently, there are minimal financial resources required for this type of participation.

A "friend of the court" brief can be used to indicate to the Judge that there are parties interested in the outcome of the case that are not formally involved as litigants to the case. In this situation, the purpose for Toronto's participation would be to inform the Judge that the outcome of the case could have a significant impact on the human health of residents on the Canadian side of the border. As the municipality which represents the largest exposed population on this side of the border, the City of Toronto is well positioned to make that case.

Legal Counsel has determined that the U.S. District Court in the southern district of Ohio where this case has been filed, has no formal rules regarding the submission of "friend of the court" briefs. The decision whether to accept a "friend of the court" brief is at the discretion of the Judge. At worst, the Judge could deny the City's request. At best, the Judge will allow the City to submit a brief and consider it when weighing the evidence in the case along with other submissions.

Conclusions:

The health of Toronto residents is being significantly impacted by poor air quality characterized by high levels of ground -level ozone and particulates. U.S. coal-fired power plants in the mid-western United States are significant contributors of the ozone and particulates to which Toronto residents are exposed. Legal action being taken by the U.S. EPA, New York State, and others in the United States, against coal-fired plants that are out of compliance with the U.S. Clean Air Act could result in substantial improvements in the quality of Toronto's air. The City of Toronto could assist these legal actions by submitting a "friend of the court" brief in support of the U.S. EPA case against AEP. The preparation and submission of this brief should require minimal financial resources and a manageable level of human resources.

Contact:

Kim Perrotta, MHSc, Environmental Epidemiologist, Health Promotion and Environmental Protection, Toronto Public Health, Tel: 416-392-1560 Ext. 8-7044, Fax: 416-392-7418; E-mail:  kperrott@toronto.ca

The Policy and Finance Committee submits the following communication (December 10, 1999) from the President and Chief Executive Officer, Toronto Hydro:

City Council, at its meeting of October 26 and 27, 1999, and regarding the New York State Law Suit against Mid-western coal-fired power plants, requested Toronto Hydro to report to the December Council meeting, indicating whether our supplier, Ontario Power Generation, is buying electricity from any of the 17 coal-fired plants identified in the law suit.

Ontario Power Generation (OPG) has advised that over 70 percent of its energy is generated by emission-free hydroelectric and nuclear stations. The electricity grids in Canada and the United States are interconnected and are governed by the North American Electric Reliability Council (NERC). OPG is a member of NERC as are all of the utilities in the neighbouring States, including those in New York. OPG has advised that it contracts to buy and sell electricity with other companies through this interconnected market on a regular basis. The contracts specify the amounts of electricity to be supplied, not the source of the electricity.

Due to the interconnected nature of the system, OPG advises that purchasers are unable to know which specific plants have generated the electricity. However, over the past five years, the companies that own the targetted power plants have supplied approximately 0.03 percent of OPG's electricity sales. However, as noted above, OPG advises that it cannot determine the specific source of the generation.