Environment Committee on June 19th, 2006

[John Godfrey, Liberal, Don Valley West, ON]

What I would like to do now is focus on two of your slides. If I were mean enough, I would get Mr. Reed to conduct a discussion with Mr. Moffet and Mr. Clarkson, because Mr. Reed has put some very good questions here. These are the questions we would be expecting to ask.

On priority substance lists 1 and 2, and on virtual elimination, first of all I'd like to give a chance to Mr. Moffet and Mr. Clarkson, as they see fit, to start answering the questions Mr. Reed has started putting to you. Mr. Reed, if you think you'd like a little more detail, don't hesitate to jump in.

Let the audit begin.

[The Chair, Conservative, Bob Mills]

Mr. Moffet, please go ahead.

[John Moffet, Acting Director General, Systems and Priorities, Department of the Environment]

Mr. Chairman, I don't think you have to worry about Mr. Reed hesitating to jump in.

I can give you an update of the status of the PSL. As I think you know, the ministers over the course of the 1990s assembled two PSL lists, PSL1 and PSL2. PSL1 contained 44 substances, some of which were individual chemicals and some of which were broad effluent streams. I'll give you a quick status on this.

All but two of those assessments are completed. Twenty-six out of 44 have been found to meet the criteria in section 64. They're toxic under the act. All 26 of those have been added to schedule 1. Twenty-five of those are managed by instruments under CEPA, and one, which is one of the phthalates, has been managed by the Minister of Health.

One has been proposed toxic, so the assessment is completed. The first notification has gone out suggesting that the substance is toxic and that it be added. That process isn't complete. That's used crankcase oil.

Thirteen of the substances are not toxic, did not meet section 64. Two of them were found to in fact not be in use and are therefore subject to the new substances notification regulations. In other words, the departments didn't conclude one way or the other. They didn't need to; the stuff's not out there. If it ever comes in it will be subject to the reverse onus provisions in the new substances regime.

Two of the assessments are in the process of being updated and revised. In terms of monitoring those substances, 23 of the 26 declared toxic are currently being monitored under the NPRI. Eleven of the 13 declared not toxic are also being monitored under the NPRI.

PSL2 had 27 substances. Nineteen of those have been found to meet section 64 criteria; they're toxic. Seventeen have been added to schedule 1. One, radionuclides, is being managed by another federal agency, the Nuclear Safety Commission. It's a much better place to manage that substance.

Road salts were not added to schedule 1 but are nonetheless being managed by a memorandum of understanding. I'm not sure exactly who it's with; I can get you that detail. Seventeen of the 19 are being monitored by the NPRI. Six of the substances have been found to not meet the criteria in schedule 1. Two of the assessments have been suspended pending further research.

So of the 71 substances, all but four of the assessments have been completed, and where appropriate, management regimes have been put in place.

[John Godfrey, Liberal, Don Valley West, ON]

Mr. Reed, do you have a follow-up question on that?

[John Reed]

I think Mr. Moffet has answered some of the questions we would be posing. As I said, in 1999 some 13 of the substances that had been assessed were left incomplete, and we wanted to get some closure.

What I probably would be interested to know is a little bit more about the management side of the equation. In 1999, for example, for those 25 substances that had been declared, the department put in motion 14 major industry consultations. They were called strategic options processes at the time. At the conclusion of 1999, 9 of those 14 had finished their work; they had generated something like 50-odd recommendations that had been accepted by ministers, but there were no resources attached with those recommendations.

We would want to know whether you have implemented those recommendations. Did you get resources? They called for things like writing regulations, developing codes of practice, and getting more information.

In fact, in 1999 we broke down a number of those recommendations, and even though 55 recommendations sounds like a lot, in fact very few of those recommendations were risk reduction measures. They were education programs. They were training. They were to get more information, but there wasn't a lot that said what was going to be done on the ground to reduce the substances.

At the end of 2002 all the consultations had been completed. Now we're up to about 75 recommendations, and again we'd ask the same question: have they been implemented, and what evidence do we have that the risk is being reduced, that releases to the environment are going down as a result of these recommendations?

[John Godfrey, Liberal, Don Valley West, ON]

And the answer to the question would be...?

[John Moffet]

Let me speak to the question about resources.

Following the 2002 audit--there's no necessary causal relationship, but external prompting is always helpful--in 2003 and in the following years, the government did allocate the environment and health departments additional resources to implement CEPA.

Compared to our funding in 2002-03, two things happened. First, parts of our implementation under CEPA were based on temporary funding. Almost $50 million of temporary funding--$48.2 million of temporary funding--has now been made permanent; in other words, it has been added to our permanent base. In addition, we received an additional $28.1 million of new funding. I believe I can give you a breakdown by program, and we can and will submit that to the committee.

[John Godfrey, Liberal, Don Valley West, ON]

It's the management question--the very last question that Mr. Reed was asking.

[John Moffet]

Right. Are we making a difference?

We have implemented management measures for each of the substances declared toxic. Some of those have been in place for long enough that we can say yes, we're making a difference. Some of those have not been in place long enough to know whether we're making a difference or not.

I know this is not going to be a satisfactory answer, but what I propose is to provide the committee later in the summer, upon your return--and this is not an attempt to hide it--with a breakdown of the trends in emissions and use of each of the substances over time, and in addition an indication of when the CEPA management measure came into place, because we don't want to attribute causality; the emissions may have gone down for some other reason. We need to be careful about attributing causation to a CEPA measure. That's something we need to be constantly aware of--that we don't do something for no reason or conclude that something was successful, when in fact it may not have had an impact. But I can commit to providing you with that information towards the end of the summer.

[John Godfrey, Liberal, Don Valley West, ON]

Thank you,.

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Bigras is next.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chairman. First of all, I want to welcome you to the Standing Committee on Environment and Sustainable Development.

When you talked earlier about your follow-up work in Chapter 1 of your 2002 report, you asked us to pay particular attention to the progress made over the last few years and the many empty circles in your matrix. These numerous empty circles which appear in areas where there should be better coordination between departments demonstrate that progress has been very limited. It seems difficult to maintain coherence between the actions of departments. I believe that the first demonstration of this fact was given to us last week when Health Canada said that no common policy framework has been put into place.

You say that 27 recommendations were put forward in your 2002 report. My question is directed to Mr. Moffet and Mr. Clarkson. As of today, on the 27 recommendations contained in the report, how many have been implemented?

[The Chair, Conservative, Bob Mills]

Mr. Reed.

[John Reed]

May I just quickly interject? Not all of those 27 recommendations were directed to Environment Canada and Health Canada with respect to toxic substances under CEPA. Many of the recommendations dealt with pesticides. Some of them were with the Fisheries Act. Not all 27 would ever have applied to today's discussion.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Whose responsibility was it to act on these recommendations? It belonged to the departments, did it not?

According to you, how many recommendations were implemented?

[The Chair, Conservative, Bob Mills]

Mr. Clarkson.

[Steve Clarkson, Director, Environmental Contaminants Bureau, Safe Environments Program, Healthy Environments and Consumer Safety Branch, Department of Health]

Mr. Chair, as Mr. Reed pointed out, some of the recommendations referred to the Pest Management Regulatory Agency. I have not prepared nor am I able to respond to those that deal with that part of my department. With respect to our activities that deal with CEPA, one of the recommendations is the 13 substances. You've heard reports that those have been completed. Those were outstanding from PSL1.

The next recommendation talks about process for being able to incorporate new information into an assessment that has been completed. We committed to initiating a response to that; however, in attempting to meet the categorization criteria and deadline, along with doing the pilot study that we started in conjunction with the categorization exercise, we have not completed the commitment.

On the other hand, I would maintain that the important part of an assessment leads to a conclusion as to whether you need risk management or not. It has always been our practice, at least from the Health Canada perspective, to incorporate new information that comes along that has an impact on our risk management decisions during that phase.

[The Chair, Conservative, Bob Mills]

Mr. Moffet.

[John Moffet]

My understanding of the status of those recommendations that Environment Canada has is that the department agreed to those recommendations. The exception is...the procedure is to incorporate new evidence that we have at least begun action to respond to each of the recommendations.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

My second question is about virtual elimination. In this document you handed out, you say, and I quote:

Our 2002 report noted no substances have been added to the CEPA virtual elimination list [...]

I find this interesting. Indeed, last Thursday, we considered in the House of Commons a bill introduced by Ms. Minna that would add perfluorooctane sulfonate to the virtual elimination list. A regulation to deal with this substance was published first in the Gazette in 2004 and we are still sitting here wondering when it will be added to the virtual elimination list.

The Commissioner of the Environment made these findings in 2002. How do you explain that a member of Parliament has to introduce a bill in order to force the government to add this substance to the virtual elimination list? Is it due to administrative problems? What reason is there for the government to delay adding substances to the virtual elimination list?

[John Moffet]

I can respond.

I repeat what I think I said in an earlier meeting: to date the departments have not added to the virtual elimination list all substances that they have prohibited.

In 1998, after the departments developed the toxic substances management policy, the departments identified 12 substances for virtual elimination. Eight of those were pesticides, and there were four other substances. All eight of the pesticides are not registered with the Pest Control Products Act; in other words, they cannot be used as pesticides. Adding them to the virtual elimination list doesn't do anything over and above the step that's been taken by the pesticide management folks, so it would be additional government effort for no value added in terms of risk management.

The other substances have been subjected to the prohibition regulations, so again their use is prohibited in Canada. Again the conclusion was that going through the administrative steps to add those substances to the virtual elimination list would not add any benefit to the risk management of those substances, because what needed to be done had already been done.

You also asked about whether there are administrative problems with virtual elimination requirements in CEPA. I think it's fair to say the answer is yes, there are.

The virtual elimination provisions are complicated and hard to follow, but essentially what they say is that if a substance meets the criteria in the regulations to be considered persistent or bioaccumulative, and inherently toxic, the minister shall implement virtual elimination as it's defined the act. That means the minister must add the substance to the virtual elimination list, identify a level of quantification, and then develop a release limit regulation.

What we found is that many of the substances on the horizon that we anticipate may be subject to these requirements are contaminants in products; they're not being released through industrial emissions. We've learned that it's extremely hard, technically, to develop a level of quantification for a contaminant in a product that is inadvertently released, and that indeed the better approach for addressing these substances, in many cases, is simply to prohibit their use. Going the VE route--virtual elimination--would then just add some burdens that are hard to comply with and again won't add a lot of environmental or health benefit.

The additional requirement of having a release limit regulation is again something that in many cases has turned out to be unnecessary. If you ban the substance, there's not much point in developing another regulation that prescribes a release limit for it, because in theory you shouldn't be using the substance--so, yes, when we've tried to implement these provisions, we have encountered some administrative challenges.

[The Chair, Conservative, Bob Mills]

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

Thank you to our witnesses for coming today.

I'd like to step back for a moment, Mr. Reed, to the use of voluntary instruments. It was noted in your 2002 report. Could you explore this a bit more? You seem to raise a note of caution. We struggle with this, it seems, at this committee--with government inaction. It's very difficult to move them over to any mandatory legislative requirements.

I wonder if you could expand a little more. You've mentioned that your position was neutral on it, and I know you folks have to be careful in terms of policy commentary, but how effective has the voluntary application been for Canada?

[John Reed]

That's a tougher question to answer, but let me explain the basis of our work, again bearing in mind that at the time of the 1999 audit, we were interested in more than just CEPA toxics.

There was at least one major initiative at the time, called the ARET program--the accelerated reduction/elimination of toxics. It was in effect a program sponsored by a number of NGOs, industry groups in the government, as a means to get action faster. In those days, in the 1990s, volunteerism was in. Regulatory controls were out; they were expensive, the departments were going through program review, and industry was willing to step up to the plate and volunteer. It's probably the case that those voluntary efforts did result in reductions.

Our beef, though, was basically that ARET had a number of substances that were determined to be high-priority toxics--they were designated high priority--and there were a number of CEPA toxics that were being managed through voluntary instruments in the form of ARET. A substance would get declared toxic under CEPA and the risk management measure would be to put that under ARET; in other cases there would be a memorandum of understanding developed with an industry association, or with individual companies, and they would commit to take voluntary action on those CEPA toxics.

When I said we were neutral, the policy question of whether a voluntary instrument is better than a regulatory instrument is something we avoided. We said that's a policy choice governments can make. However, we did feel that if you're going to use voluntary instruments to manage high-priority toxic substances--substances that otherwise have the potential to create risk for people and the environment--then make sure those voluntary instruments are robust: make sure they have the characteristics of a regulatory approach without being a regulation.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Before you step further into this, though, I'm looking at your testimony around our ability to track. When we dive into CEPA it gets very laden with jargon right away, and it's harder and harder for Canadians to access what's happening. If we're trying to eliminate the worst chemicals out of our environment and we're unable to track the substances being released into the environment in the first place, I'm confused as to whether we can even pass judgment and if the government can know if it's doing a good job or not. How do you know the effectiveness of a program, or whether voluntary or mandatory regulation works, or if money is being well spent, or any of those things, if you don't actually track those substances at their release point?