Environment Committee on Sept. 21st, 2006

[The Chair, Conservative, Bob Mills]

If we could get started, please....

First of all, I would like to introduce someone who is new in the room, and that's Justin Vaive. Justin is over in the corner here. Eugene claims he's going to retire some time in the future, so Justin is being trained. The interesting part is the connection here: Eugene was trained by Justin's father, and Justin's father is now with the B.C. government. So it's an interesting circle. It stays in the family, at least.

Anyway, welcome, Justin.

I'd like to welcome our guests. I would like to read this on the record, just so that our department officials know exactly what their role is. This is something that Eugene has put together, so having it on the record will clarify this for everyone.

There has been a question about what is the role of department officials, both from the Department of Health and Environment Canada, during these hearings. Basically, here--and these have been agreed to by the departments--the official guidelines for the participants would be the following:

Number one, participants are not required to make opening statements or presentations; ten-minute presentations will be reserved for witnesses, as time is of the essence.

Number two, participants can intervene through the chair to bring clarity to certain questions or if they feel a statement is factually wrong. So they can clarify that.

Three, participants are expected to answer questions from committee members, either orally or in writing, to the best of their ability.

Four, the clerk will provide sufficient advance notice of the items to be discussed at each meeting. This will afford the departments ample time for preparation and the ability to identify appropriate officials.

Are there any comments there? Does this satisfy that requirement?

Mr. Cullen.

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

Has that been sent around, Chair?

[The Chair, Conservative, Bob Mills]

No, it has not.

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

Can it be?

[The Chair, Conservative, Bob Mills]

It certainly can.

Are there any other questions or comments about those? Basically, that's just to clarify, set the rules straight, so that the officials know where their positions are, and it's clear. So this can be sent around then to everyone.

I'd like to welcome our guests. Certainly this is proceeding on with our CEPA review. As you know, it was agreed by the committee that we would set up round tables of people presenting different points of view. So this is our next round, our first round this fall of this process.

I think we'll go in the order they appear on your agenda. We'll start with the Canadian Chemical Producers, please.

[Gordon Lloyd, Vice-President, Technical Affairs, Canadian Chemical Producers Association]

Thank you.

My name is Gordon Lloyd. I'm vice-president of technical affairs with the Canadian Chemical Producers Association.

I'd like to thank the committee for the opportunity to participate in this round table and to talk about the term “toxic” in CEPA. Also, I have a few comments about the in-commerce list. I thought that was on the agenda today, and I won't go into much detail. I also have a few comments on the categorization of the domestic substances list.

When I presented to you last May, I emphasized how CCPA--the chemical industry--wanted a CEPA that would support our members' continuous improvement in environment and health performance, which is driven by our responsible care initiative. As I discussed last May, responsible care is a set of initiatives started by CCPA in the 1980s to meet public concerns about chemicals and their impact. It has spread internationally.

The issues the committee is considering today are important to our objective of having a workable and effective piece of legislation that will help to reinforce what our members need to do to improve under the responsible care initiative.

The issue I want to focus most on is the categorization of the domestic substances list, where I think Canada has a world-leading position and has made a remarkable achievement. A lot more needs to be done, and I think that's an issue that will be very important to discuss with the committee, but I'd first like to very briefly touch on the other two issues.

First of all, on the toxic issue, in the presentations to the committee last May by CCPA and by others, there were many concerns raised about the undue stigma that's associated with the term “toxic” as it's used in CEPA. I think there seemed to be general support among committee members for looking at that issue and trying to find a solution. We're very pleased that this is one of the things that you're reviewing in your round tables.

Our recommendation is fairly straightforward. We think you could remove the term “toxic” from the act, particularly in the operational sections in part 5, and replace it with something like “substances that meet the criteria of section 64”.

The previous government, in their budget bill proposal, would have actually gone part way to doing that. They would have left the term “toxic” in section 65, which is about virtual elimination, but it would have then been by itself and without a definition. I think that could have presented some fundamental problems with the act, changing virtual elimination from a risk-based approach to a hazard-based approach. I'd be happy to get into that in more detail if people want to hear about virtual elimination. I understand you may have a separate round table on that issue, and that might be a better place to talk about it.

The bottom line is that I think replacing the term “toxic” throughout CEPA with a term such as “substances that meet the criteria of section 64” would resolve the stigma problem; it would maintain the integrity of the act for a risk-based approach for virtual elimination; and I think--and it's an important point, which Mr. Cullen emphasized last time, and we agree with it--you'd also maintain the validity of constitutional powers.

As we understand it, when they raised it previously, the Department of Justice lawyers did look at what possibilities would work. Their proposal to use language about meeting the criteria of section 64 I believe was made with the understanding that it wouldn't undermine the constitutional validity of the act. And as I said before, that's very important to us.

Our second point--and I'll very briefly touch on this--concerns the so-called “in-commerce list”. This is really about what substances are existing in the legislation and are treated as such, and what are new substances.

CCPA recommends that the act be amended to allow the in-commerce list and similar substances to be treated as existing substances under CEPA, possibly by being added to the domestic substances list, or possibly through another mechanism that could be developed to recognize them as existing substances.

The domestic substances list, or the DSL, is a list that was set up to identify substances that are in commercial use in Canada when the requirements were put in CEPA to assess new substances and to distinguish the new substances from the existing ones. The in-commerce list is a colloquial name that has been given to a group of substances that were covered by the Food and Drugs Act. They are in commerce and they should be treated as existing substances, but there are technical difficulties in CEPA such that we are unable to do that right now. But they're clearly not new substances.

We think CEPA should be amended to provide the minister with more flexibility in treating substances that aren't new substances as existing substances. And this could apply to the in-commerce list and to other areas. If this were done, the approach that's been taken to use the categorization tools applied to the DSL could also be applied to these other substances as well. That would identify any substances in commerce that may need additional attention and management, as the completion of categorization so far has done with the substances that are now on the DSL.

As my final point, I'd like to turn to what I see as the remarkable completion of the categorization initiative. The question the committee is faced with--the government-industry angles--is what do we do with the categorization results. I think that's what you're really going to be looking at. Categorization was completed last week. The government still needs to release further details, so my understanding of it may not be absolutely accurate and up to date, but there were briefings with industry and with environmental groups over the course of the development of this process, sometimes jointly, sometimes singly, which I think worked best. I think we've learned a fair amount about the process and how we expect it to work. And as we see it, the 23,000 substances in commerce in Canada on the DSL--and these numbers I'm using are all approximate--have now been looked at and they've been sorted; they've effectively been triaged.

Categorization concludes that about 19,000 substances are not likely to have harmful effects on people or the environment, based on our current knowledge. And like the new substance notification provisions that seem to satisfy Canadians as to the safety of new chemicals, Canadians should see that about 19,000 substances are what I would refer to in colloquial terms as safe and do not require further work or assessment at this time. We're always afraid about using “safe” in these discussions, because nothing is ever absolutely safe, but that's a good way of looking at these substances as a group.

That would leave about 4,000 substances to be looked at to see, after they're assessed, if they should be put into the safe bin, or whether they should be determined to be toxic, or whatever label ends up being applied in CEPA for substances that are added to schedule 1, and where they would require regulation.

We understand, based on information we've heard over the summer, that of the 4,000 substances that still need to be worked on, probably about 1,000 of them will not require further work. There were conclusions this year that they're not likely to cause problems for people or the environment, and those could be set aside and put in what I'm referring to as the safe group of chemicals. That would leave about 3,000 substances to be assessed.

We understand this is going to be done through a rolling set of priorities. That makes sense. Everything can't be done at once. This is a very challenging task. A timetable was set globally through agreement by world leaders in Johannesburg in 2000 and it was picked up in a Dubai declaration about safe management of chemicals globally. It set a benchmark of 2020, to produce chemicals that minimize significant adverse effects to human health and the environment. That's the type of timeframe that would be challenging, would be doable, and would fit into the global timetable to work on this issue.

This is truly a global issue. Canada has emphasized that international cooperation has to be a cornerstone in tackling it, and we certainly agree with that. We see that with the categorization Canada has now completed and the follow-up assessment Canada will be doing, Canada will be leading globally in this initiative and will have an awful lot to offer to the U.S., to Europe, and to other OECD countries. But we also can take from those countries. The U.S. and the OECD, particularly assisted by the International Council of Chemical Associations, with CCPA as a member, have done a lot of work on the group of substances produced in high volume, and a lot of data has been collected that Canada can tap into as we work through the categorization results.

If Europe ever gets its REACH legislation passed and operational, and if it works despite its seemingly overwhelming complexity and cumbersomeness, we hope Canada will be able to rely on some cooperation and results from Europe as well, but that's still somewhat an unknown. We have a project that's been ongoing and is working, and they have had an ongoing debate that has yet to produce any results.

Also, I mentioned the global chemical industry's contribution to what the world is doing in high-production-volume chemicals. We've tried to move beyond that and develop a global product strategy under responsible care that was launched at this Dubai conference where the 2020 objective that I referred to earlier was formalized. That was about five or six months ago, and we're still fleshing out the details. This should be very useful in helping Canadian industry and Canadian government move forward in gathering the information that's required for post-categorization assessment.

I have something I was able to get hold of only today that we've produced. I'll give it to the clerk so it can be provided to the committee. It describes this initiative in a bit more detail, if there's interest in it.

What to do with the categorization results? I guess in CCPA's view, the answer is to stay the course with the process that CEPA '99 established and that Environment and Health Canada follow. We have a world-leading ambitious program that has proved to be workable so far. It has met the September 14 milestone of completing the categorization process, but that takes it only part way through what CEPA required, and there's still the assessment stage to go through. That next assessment stage will be a lot more challenging, but we can build on the partnerships, the momentum, the international cooperation, the clear legislative authority that we have, and the scientific tools that are being developed as part of categorization and that have underpinned our success to date to move forward.

So I think the key message to the committee is that the legislation needs to let that happen without changing course in mid-stream. This is something that's working and hopefully is allowed to continue to work. Don't fix what isn't broken.

Thank you very much. I hope those comments are useful for the round table.

[The Chair, Conservative, Bob Mills]

Thank you very much, Mr. Lloyd, and thank you for keeping within your time.

I have this magic grey box here through which I can keep everybody's time right to the second. It works wonderfully, and you stuck with that. I'd ask the other witnesses to attempt to be as good as Mr. Lloyd in this regard.

The Canadian Fertilizer Institute, please. Mr. Graham.

[Clyde Graham, Vice-President, Strategy and Alliances, Canadian Fertilizer Institute]

I'm Clyde Graham, vice-president of strategy and alliances for the Canadian Fertilizer Institute.

I'd like to thank the committee for inviting us here today to talk about toxic stigma.

Canada's fertilizer industry contributes about $6 billion annually to the Canadian economy and employs about 12,000 Canadians. Its farm gate sales are valued at about $2.5 billion a year. That's the amount farmers spend on fertilizer each year. In addition, it's a major export industry, with 75% of total production going to supply fertilizer to more than 40 countries.

Our member companies make and supply food for plants. Fertilizer is essential to Canadian agriculture and the production of wholesome food. Fertilizer products are beneficial, life-giving, occur in nature, and are not inherently toxic.

CEPA, Canada's fundamental environmental legislation, includes a list of substances that are considered toxic under the act. Ammonia dissolved in water, and gaseous ammonia—both forms of nitrogen fertilizer—are on the list. Potassium chloride or potash has also been subject to the listing process for road salts, but hasn't yet been listed.

This doesn't make sense. There is no reason to impose a toxic stigma on life-giving products such as ammonia or potash fertilizers, which are plant nutrients used in the production of wholesome foods on Canadian farms. Like many beneficial substances, fertilizers have to be used properly in the environment, but they are not inherently toxic.

The Canadian Fertilizer Institute made this case to this committee last year, when an amendment to take the term “toxic” out of CEPA was included in the budget bill. While the committee rejected that amendment, largely because it was connected to the former government's plan to regulate greenhouse gases, members of Parliament recognized unanimously in the committee report that there is a problem. I'll quote from the report:

The Committee acknowledges that there are problems with using the word “toxic” for every substance that meet the criteria of section 64 of CEPA. Labelling such substances as ammonia in water (which is listed) and road salt (which met the criteria but has not been listed) as “toxic” is confusing to Canadians who use them in very different circumstances and may give an unfair stigma to products produced by Canadian industry.

In March 2005, the president of the Canadian Council of Ministers of the Environment, the Honourable Kerry Morash of Nova Scotia, wrote to the federal environment minister Stéphane Dion and federal health minister Ujjal Dosanjh to outline the position of the provinces on needed reforms to CEPA arising from the five-year review of CEPA. Among the consensus arrived at by the provinces is an explicit request for CEPA to use a term to replace CEPA's “toxic”, one that would avoid the stigma attached to the term “toxic”.

What the public needs to know is the specific source and location of environmental problems. Pollution is created by human activities that release products or substances. In the case of some substances, there is no safe level that can be released to the environment. In many other cases, pollution is caused when useful substances or products are released to the environment in the wrong place, at the wrong time, or at too high a concentration.

Generating generic lists of toxic substances is a wasteful bureaucratic exercise. Needlessly stigmatizing beneficial substances and products is counterproductive. Canada needs legislation to enable an environment management strategy that focusses on identifying specific challenges and encourages stakeholders to develop and implement economically and environmentally sustainable management plans. The development of environmental farm planning and best management practices under the federal-provincial agricultural policy framework is a good example of how this should work.

It was counterproductive for Environment Canada to undertake a long and expensive review of ammonia to determine whether the substance should be added to the CEPA schedule 1 list of toxic substances. The real targets were very specific environmental problems, such as municipal treatment facilities releasing waste water with high concentrations of aqueous ammonia directly into rivers and killing fish. It would have made more sense to identify the specific point source and focus on working with cities and towns on the actual problem from the start. While the context for the listing of ammonia was contained in the background material for the official notice, the potential for damage to the public reputation of our products is real.

Government and industry need a framework to develop cooperative environmental management plans that are effective, realistic, public, and accountable. A good example of that kind of outcome was the road salt environmental management plan.

CEPA creates an adversarial atmosphere focused on negative labels that actually impede effective national environmental management systems. For example, by placing toxic stigma on products in commercial use, scarce resources are wasted in conflict. The focus should be on implementing cooperative environmental management systems that will benefit the environment for all Canadians.

There is a serious concern about the impact on the ability to sell into the international marketplace if the government needlessly designates substances as toxic. For instance, Canada is the world's number one supplier of potash. This market is highly competitive and many countries closely regulate their agricultural production systems. If potassium chloride were designated toxic, customers would become subjected to the arguments from competitors outside Canada that Canadian potash should not be purchased because the Canadian government considers it toxic. This is a highly sensitive issue in the food industry, which has frequently been subjected to non-scientific accusations, influencing public perception and creating trade barriers.

In the final analysis, our industry has three simple recommendations: first, remove the label of toxic from the list of substances; two, include a clear context to describe the specific circumstances under which a substance needs to be managed; and three, ensure that the use of CEPA is focused on situations where there is a clear need for action. Contingent regulation makes for poor public policy.

The fact that a toxic designation has been pinned on ammonia, a life-giving substance essential to Canadian agriculture in the production of wholesome food, is clear evidence that CEPA needs to change.

I would like to add that while our major concern in CEPA relates to the issue of toxic after it has been listed, our experience has been fairly positive in terms of the management that the government has asked us to engage in, which has been voluntary and through the Department of Agriculture. We've had an excellent working relationship on that file with both Agriculture Canada and with the Department of the Environment. It's the stigma issue that's our problem, and the one that we need this committee to help us fix.

[The Chair, Conservative, Bob Mills]

Thank you very much, Mr. Graham.

PollutionWatch, Mr. Benevides.

[Hugh Benevides, Counsel, Canadian Environmental Law Association, PollutionWatch]

Thank you, Mr. Chair, for having us.

Members know that PollutionWatch is a joint project of my organization, the Canadian Environmental Law Association, and Environmental Defence, and you have before you our various roles within those organizations. I will say only that as our individual organizations, we've been heavily involved in the process of the categorization of the domestic substances list since 1999, when the process began, and environmental groups were instrumental in achieving the degree of participation that did result in that process right from the beginning.

Needless to say, we think the results and what to do with them are extremely important, and we will expand on that this morning.

We'll begin, then. And I should say that there are a number of premises Mr. Graham and Mr. Lloyd began with that I would really like the chance to refute as strongly as possible, but I don't have the time to do that now, so I look forward to the chance to do that as you ask your questions and we have a chance to respond to them.

The rest of our presentation will be presented my colleague, Fe de Leon, who will discuss her experiences with the categorization exercise, and Aaron Freeman will address the matter of the definition of “toxic”.

I should say that I understand two representatives of the Pembina Institute for Appropriate Development, as well as Professor Linda Collins of the University of Ottawa's faculty of law, are coming to address the toxic issue next Tuesday as well. So I don't want to steal their fire.

On the topic of the DSL, we have Fe de Leon, who is a researcher at CELA.

[Fe de Leon, Researcher, Canadian Environmental Law Association, PollutionWatch]

Thank you.

Good morning, everyone. Thank you for allowing me to appear before the committee to share with you my experiences around the DSL categorization process.

As my colleague noted, the process for categorization began back in 1999. The principal objective of section 73 of CEPA was to assist the government in identifying substances that had been in use in Canada for several decades and needed further attention. The government recognized that in the last CEPA review process, the Canadian approach to assessment and management of substances was no longer efficient and required a lot of time to take action on hazardous substances. There was very little toxicity information available on thousands of the chemicals in use. Studies were beginning to show that some substances persist in the environment for a period of time and/or bioaccumulate and build up in the environment. There are also many chemicals that were linked to severe health effects, including cancer, reproductive and developmental disorders, and respiratory problems that even disrupt normal hormonal functions. Bio-monitoring data that we've seen in the last few months and years reinforce the need to focus on these chemicals more stringently.

Children's health has become a focus in terms of exposure around toxic chemicals. We see chemicals being found in the Great Lakes and the Arctic, places where industrial activities would normally not be seen.

Taking actions on substances has been slow over the past two decades and the Canadian government has not been able to produce a report that shows how much progress has been made around strategies to deal with toxins or what has been achieved. Government efforts to assess chemicals have not been keeping pace with the urgency and need to take immediate action on the most troublesome chemicals.

The chemicals that decision-makers and stakeholders were most worried about are the 23,000 chemicals that are listed on the Canadian domestic substances list. These chemicals have been in the market for decades but have been the ones reported between 1984 and 1986. They have a wide range of uses, including industrial applications, research and development, use as intermediates or catalysts for formation of other chemicals, and have been found in large numbers of everyday products and articles.

Under CEPA, substances on the DSL are assessed differently from those chemicals that entered the market after 1986. The categorization process aims at identifying the chemicals on the DSL requiring further government attention. When listed on the DSL, very little information, as I noted, included toxicity data and health effects on most of these chemicals.

The categorization process sets out very specific sets of criteria. Chemicals that are persistent, bioaccumulative, and inherently toxic or those chemicals that pose the greatest exposure to human health and to non-human organisms are the focus of categorization. Based on these very narrow criteria during the seven-year process to review those chemicals, government did not focus on generating new toxicity data to make their decisions on categorization. Despite some of these limitations, the categorization process has identified approximately 4,000 chemicals that require government attention. This is a critical first step. These numbers are very significant.

Because these substances are now known to have specific hazardous properties attached to them and they continue to be in use in Canadian commerce, the challenge for the Canadian government will be in the way it responds to the results of categorization. The initial government plans on the 4,000 will have significant impact on how chemicals are assessed and managed in Canada for decades to come. We would almost say that the categorization process places Canada at a crossroads in this approach.

CEPA lays out some very specific steps to follow categorization. Screening assessments will be required for many of the substances. However, there are many questions related to how these assessments are undertaken and the timeframes in which they are required to be completed.

CEPA also has a number of regulatory tools necessary to effectively ensure that the environment and Canadians are protected, including the need to prohibit and eliminate some of these chemicals.

My colleague, Hugh Benevides, will spend a few minutes outlining our vision for the government on the categorization results.

[Hugh Benevides]

Thank you.

As Fe and the other witnesses have noted, the achievement of the categorization exercise is no insignificant accomplishment and one that is unique to Canada. However, as Fe has intimated, it's really only the beginning of the really important steps that have to follow: the processes of further screening those substances, then ultimately taking regulatory action on them.

I have a very short list on your outline of what we would like to see done with those. I won't go into great detail on them, because they are outlined in a number of places: one, in a submission of PollutionWatch to your committee that we submitted last June, and also in two letters--actually three--one in June to the two CEPA ministers and to the deputy ministers, and another letter to the same two ministers that we sent on Friday and that I sent to this committee earlier this week. I'm not sure whether it has been translated, so I'm not sure whether you have it before you today. But the gist of that, apart from the substance of precisely what action we would like to see taken on the various substances, is that it's essential that the content of the lists and the results of categorization be given to the public.

We would urge, therefore, that the committee write to the ministers and ask when that will happen, and/or ask for the ministers to appear before you to answer that question. As Fe said, this list is twenty years old. There is not a lot of new data on those substances and it's time for action to be taken on them.

There are other more specific recommendations, which you'll see in that letter when you receive it, if you haven't already, and in our submission as well.

[The Chair, Conservative, Bob Mills]

That has been translated and everyone has a copy.

[Hugh Benevides]

It is there. Okay, great.

Those points are consistent with our submission--in particular, speedier action, regulatory action on those substances that are the most serious, those that have the most serious criteria, and mandatory timelines for that action to be taken. To us, that's really the only way we can continue the momentum that was created by the achievement of this exercise.

In view of the time constraints, I'll turn over the conclusion of our presentation to Aaron Freeman.

[Aaron Freeman, PollutionWatch]

Thank you very much.

I'd like to briefly address the issue of the term “toxic” and some of the concerns that have been raised by some of the other witnesses through the CEPA hearings.

I think it's important to first understand the meaning of the word “toxic”, both in terms of CEPA and in other contexts. The term is not, as some have suggested, limited to the idea of being acutely poisonous to humans. This limited definition is inconsistent with both the scientific and the publicly understood definitions of the term. The industry's concern would appear to assume that “toxic” relates only to acute instances of human health, whereas a substance can also be toxic to the environment, as is the case with some of the examples that industry has raised. It may also relate to human health via the environment, as would be the case, say, for a substance that is persistent and bioaccumulative, for example.

The industry's position seems to overlook that toxicity relates to dose. The term “toxic” in CEPA refers to a range of substances that, even under the industry's definition of harmful or poisonous, are indeed toxic in particular contexts. For these reasons, the application of the term “toxic” is quite appropriate for the regulatory approach of CEPA.

Second, there are sound regulatory policy reasons for maintaining the toxic designation. There are substances currently managed by CEPA that have been regulated for more than three decades--for example, PCBs. These substances, as well as more recently regulated chemicals--PERC, TCE, vinyl chloride, and many others--are included in the list of toxic substances and are bound up as well in the Government of Canada's toxic substances management policy, which remains the core policy for regulating dangerous substances.

Internationally, “toxic” is the term used to describe substances regulated by agreements that Canada is a party to, including the Stockholm convention on persistent organic pollutants, the Rotterdam convention on hazardous chemicals and pesticides, and Agenda 21, agreed to at the Earth Summit in 1992. Calling toxic substances something else would lead to a discrepancy between CEPA and the surrounding administrative and regulatory regimes for managing these substances, both in Canada and internationally.

Finally, from the public's perspective, there's a shared understanding, even if subconscious, that a toxic substance is among the worst. There's a shared expectation that government will deal appropriately with these substances, and removing or weakening the term may thereby reduce the impetus for proper regulation of harmful substances.

The other aspect I wanted to explore with you is whether watering down the term “toxic” would endanger the constitutionality of CEPA. Our position is that it's well-established law that CEPA has the necessary constitutional authority to regulate environmentally harmful substances. However, given the history of this and other environmental law statutes, it's virtually beyond doubt that if any legal opening is provided, constitutional litigation will ensue. I believe such a challenge would fail, but it could easily entangle the federal government and other parties in long and expensive legal battles, siphoning off badly needed resources that could better be used to administer the act.

If the term “toxic” is watered down, I believe the risk of such litigation is significant. In this regard, I would encourage the committee to consider the Hydro-Québec case, which is the Supreme Court's most significant ruling in this area of law. This case determined that CEPA's regulatory provisions lie properly within the federal jurisdiction. Had the split court gone the other way, as lower courts had held, the regulatory provisions that form the basis of CEPA's effectiveness would likely have been struck down.

My written submission goes into greater detail about this case, but it is absolutely clear that “toxic” was a feature of the reasons that the federal government was deemed to be justified in using the criminal law power to regulate under CEPA. The judge draws on domestic and international precedent concerning substances and management regimes for toxic substances, and it's clear that the judgment places great weight on the fact that the law deals with substances that are deemed toxic. In common parlance, it was held that because this law deals with things that are toxic--not just any old substances, but toxic substances--the law is legally sound, constitutionally.

The dissent in the judgment also focused on the term “toxic”. Put simply, had the word “toxic” not been present in CEPA to provide specificity, this may have increased the ambit of the legislation, perhaps strengthening the minority's view that the law was unconstitutional.

Returning to another point that was made earlier, about the term “toxic” containing both a human health and an environmental component, Justice La Forest notes in the Hydro-Quebec case the importance of reducing pollution, not only for the purposes of human health, but also for environmental protection. The ruling also addresses the dosage issue, noting that the quantity, concentration, or condition can render a substance toxic.

Hydro-Quebec settled the issue of the constitutionality of this section of CEPA. It's worth asking whether we should be providing an opening for another challenge that could easily bog down implementation of the legislation for years to come.

For all of these reasons, I would submit to the committee that it is both unnecessary and dangerous to remove or weaken the term “toxic” in CEPA. Industry concerns should best be met by communicating effectively with the public about the nature and usage of the substances placed on the market, and by the fair and efficient administration of CEPA.

Thank you very much.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Freeman.

We'll start with Mr. Godfrey.

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

Thank you, Mr. Chair.

Before beginning the line of questioning, perhaps it would be appropriate to recognize the presence today of the newly elected head of the Green Party of Canada and offer her our congratulations.

Mr. Graham, I was interested in the mixed message you sent, at least to me. On the one hand, you were concerned by the use of the word “toxic” as a stigma. On the other hand, you said that administratively you'd actually had a positive experience with Agriculture Canada and Environment Canada.

I'm wondering if you could tell us, is it possible to quantify to any degree the business cost to date of the use of “toxic”? I mean, has this stigma demonstrably hurt your business?

[Clyde Graham]

It's an interesting question. Probably at this point, there are no costs that could be measured, except for the fact that the onus is now on our industry to come to committee and deal with this issue on an ongoing basis, and to communicate with the public on an ongoing basis, when issues like organic foods are raised, and so on.

By the term “toxic” being placed on our products, the onus is being put on us to demonstrate that they are safe, useful, and so on. As long as that “toxic” stigma is there, the onus is being placed on us by the government to defend the reputation of our products.

I want to talk about the difference between the stigma and its management. When we went through the listing process, the government never came to us and said, “We want to list your products under CEPA as toxic because you're not doing a good management job and because there are problems in agriculture because of your problems—that there's something different we want you to do.”

That's the fundamental problem. What is the impetus for us to do things by labeling the ammonia as toxic? There is none. Once the stigma is there, there's no impetus on us to do anything more than what we want to do anyway. It seems to be just an exercise.

I'd like to say that in terms of the constitutional jurisdictional issue, the way a federation should work is that if there's an issue, such as municipal waste water effluent where management is needed, it doesn't seem to be very productive for the federal government to be exercising its jurisdiction through the use of the word “toxic” in the courts. If municipalities across the country don't have the money to build proper waste water treatment facilities, it would be far better if the government brought in an infrastructure program aimed at providing the funds to do that, rather than going through an exercise of going through the science and listing it. Everyone knows we don't want untreated waste water going into the rivers, so let's deal with the problem on a cooperative basis with the provinces.

I see this in many cases of joint jurisdiction where I think the federal government takes the lazy way out by exercising its jurisdiction, rather than working cooperatively with the provinces. That's what needs to be done in the environment.

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

Well, I have some knowledge of this infrastructure question, and I can assure you, there are different ways of going at it.

What I'd like to do is go over to Mr. Benevides, who suggested he had some comments on this and would like the opportunity to deliver them.

I'm wondering, sir, if you wouldn't mind perhaps using, as a worked example, the case of potash and ammonia as you go through your refutation or comments.

[Hugh Benevides]

Thank you.

The particular things I wanted to address were some of the premises, not just on this issue but on others as well. I would certainly agree that, for one thing, the context, as Aaron said, varies from one use to another. Context is everything in terms of when and how ammonia is used, for example.

Secondly, though, I think two things that Mr. Graham said are absolutely correct and appropriate. One is that the onus is on us, as he said, to deal with the fact that a substance has been listed for all the sound scientific and legal reasons that follow those reasons. That's where the onus properly lies, on industry.

Tied in with that is the fact that, as Mr. Graham said, the Government of Canada never came to them alleging mismanagement. True--and quite appropriately as well, because the process around the assessment, the screening and then what follows in CEPA, is about the substance. It's not about bad actors or anything like that.

That's why I would just say, finally, that it's important to realize that toxic stigma is about the products. It's not about the people involved.

I would ask the government to continue to look at that balance between all the reasons, the good reasons that Aaron has outlined, for going through a very rigorous and constitutionally acknowledged process to define and identify what is toxic against the actions that the proponents must then take in response to it. I think the whole regime is very carefully tailored. That's reflected by the Supreme Court of Canada's decision. It has evolved over a number of years.

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

Mr. Graham, if you don't like the word “toxic”, but you want to be sensitive to the arguments raised by the other folks in terms of having something powerful enough to sustain a constitutional challenge and all the rest of it, have you a preferred word?

[Clyde Graham]

I guess I would leave that to the government to determine. You know, I'm not a lawyer.

The point is, what is the power in the word? Doesn't action speak louder than words? The common sense, to me, is not putting a label on something but getting action. The label has no value to anyone.

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

Mr. Freeman, do you want to talk about action and words?

[Aaron Freeman]

Sure.

It's apparent to me, from Mr. Graham's presentation, that words actually carry tremendous value, certainly for him and also for other stakeholders in this process.

The term “toxic” fits into an overall regime that deals with harmful substances. If you take that label off and call it something else, for one thing it's dishonest. More importantly, you are now creating confusion at a regulatory level, at an administrative level, and at a public communication level in terms of exactly what it is you're doing and how it fits in with other domestic programs that deal with things that we call toxics and also with international agreements and programs that deal with things that we call toxics. It does create a whole series of problems in terms of how we deal with these things.

I would suggest that none of the substances we've talked about are in fact toxic; they are toxic in particular contexts. Ammonia is toxic in an aquatic environment, in various conditions, but that's not to say that ammonia is toxic every time, all of the time, and regardless of the application.

To me, the solution here is effective communication of what it is you're doing with the substance. I don't have evidence to back this up, but I don't think most Canadians view a fertilizer as a toxin.

Over and above that, when Mr. Graham complains that the onus is on industry, I think that's quite appropriate when you're dealing with a substance that is toxic in certain contexts. I think the answer to that is effectively communicating what that substance is and what you're doing with it, and effectively and efficiently administering the regulatory regime.

[Hugh Benevides]

Just as one other note on context, in the case of various substances that we're talking about, the context of consumer products is not addressed by CEPA, and we think it either can be or certainly should be. It's the additive and synergistic effects of thousands of substances in our daily lives that our children are exposed to that need to be addressed through this legislation, because the legislation administered by Health Canada that purports to deal with hazardous products doesn't do so. It does so in a very limited scale and scope, very much after the fact. And CEPA is the appropriate place to do that, with the leadership of Health Canada.

So I would urge the committee to consider that as a context that requires amendments.