Environment Committee on Sept. 26th, 2006

[Mario Silva, Liberal, Davenport, ON]

Thank you very much, Mr. Chair.

We have heard from several witnesses in the last little while who raised their concerns about either keeping or clarifying the word “toxic”. There hasn't been too much—and maybe somebody can clarify this—discussion about whether there's been any sort of financial impact on the industry or any stigmatization of the word “toxic”. It seems to me that the argument tends to centre around the whole theme of clarifying and possible legal challenges as well. However, among today's witnesses we have heard from Professor Collins, who said this is actually not clarifying things, that in fact it might be opening another can of worms, and in fact there also might be legal issues as well and legal challenges.

I've been wondering throughout this whole discussion whether in fact there is any merit to any types of changes to the word “toxic” and the present list that we have. I'm wondering whether in fact it could be actually harming the legislation of CEPA and not helping it. I think it should be the goal of the environment committee to strengthen CEPA, not to weaken it in any way.

Maybe I could have some comments from Professor Collins and maybe some others as well to that discussion.

[Lynda Collins]

I think you've understood my opinion quite well. It is indeed my opinion that it would be a very significant weakening of the act, in the sense that it's like painting a target on this act; you are really inviting potentially protracted and costly litigation. Again, as I said, in a worst case scenario we're risking jeopardizing the finding that we now have in federal constitutional jurisdictions.

[Al Hamilton]

I just have one comment. Salt is kind of in limbo. It hasn't been listed; there's a recommendation made, but it hasn't been listed. What we've heard from people, though, is that if it were listed there would be a lot of pressure to stop using salt in some places, even though that's not Environment Canada's intent.

But one other thing we're seeing is that people are recommending substitutes for salt, and these substitutes haven't been put through a rigorous PSL process. It's moving people away from this product to this product, and this product hasn't been tested either. That's one thing that I think probably would happen in other areas too.

[Hugh Benevides]

Thank you.

The committee has heard a number of comments, more or less in agreement that context is everything. Of course, it falls that when a substance is listed, or indeed when it's not even listed, the context is something that has to be communicated. It's not solely a responsibility of government, although that's important, but it's also a responsibility of the proponents.

I would add that as to the Salt Institute's recommendation of creating another list, we would strongly recommend against that approach because it would further complicate an already complicated act, but perhaps more importantly, it would create potentially even more confusion than already exists. Especially when, let's say, a substance as the Salt Institute is recommending is added to another list and then evidence emerges that action has to be taken on that substance, then you have to remove the substance again and put it on another list. I think with that kind of proposal you're creating an opening for even more confusion and more delay.

[Mario Silva, Liberal, Davenport, ON]

Ms. Coombs spoke and mentioned the fact that there need to be amendments to sections 73, 74, and 81. I didn't quite understand. I know you are under certain time constraints, but could you clarify what the effect and purpose was that you wanted from those changes?

[Shannon Coombs]

Certainly. The request we are making to committee with respect to including the in-commerce list as a list of existing substances in the legislation is that we would like the parameters of the in-commerce list to be defined in the bill.

Right now, the domestic substances list is defined in the bill under section 66, so we would like it included there. Section 73 is for post-categorization. There's a mandated requirement at section 73 for what we went through with categorization and screening of the DSL. Section 74 would be with respect to having a risk assessment done if there was a need to have one done, if something had shown that a risk assessment needed to be undertaken by the department. The provision is there.

With section 81, it is to ensure that the new substance notification regulations are formally recognized as the regulations for substances included in the Food and Drugs Act products. Those provisions would just ensure that all substances in Food and Drugs Act products are covered off within the CEPA legislation formally. Right now we are subject to CEPA; we're just not formally subject to CEPA--formally in the legislation, I mean.

[Mario Silva, Liberal, Davenport, ON]

Thank you very much for clarifying that for me.

[The Chair, Conservative, Bob Mills]

Mr. Godfrey.

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

On that last point, the very specific suggestions that Ms. Coombs has made, I thought I heard Mr. Benevides say that he wasn't in a position to comment on those changes. I'm wondering whether Mr. Winfield or Mr. Bramley might have any view of whether this is a good thing, a bad thing, a neutral thing.

[Mark Winfield]

As I understand the proposal being made, it is essentially to treat these in-commerce products as if they had been on the domestic substances list. They would be treated like other commercial chemicals, therefore subject to the screening process, which is now approaching completion for other commercial chemicals. It's being proposed as an alternative to running all of these in-commerce substances through the new substances notification process, which is quite a detailed assessment process for each substance. From a management perspective, it may make sense given the volume of substances involved.

I'm curious as to how these things never got onto the DSL in the first place.

[Shannon Coombs]

That's because they have pre-market assessments under the Food and Drugs Act. So the actual product, the end product that consumers buy, has had a pre-market assessment. Human health and safety and efficacy have already been determined and those products are for sale. But there are some that are on the domestic substances list as well.

[Mark Winfield]

Some of the constituent products are on the DSL already, but some apparently aren't.

[Shannon Coombs]

That's right.

[Mark Winfield]

Okay. I think we would want to take this one under advisement. It's an interesting proposal, and there may be some advantages from a management perspective in terms of dealing with these substances so that they do undergo some sort of screen. The new substances notification process is set up to deal with a volume of about 800 chemicals a year, so there would certainly be administrative implications for Environment Canada if you tried to run all 9,000 through it. You'd have to think about how long that would take.

[Shannon Coombs]

It's a proposal that was based upon treating substances all the same, whether they're existing or new. Since these substances have been in commerce for 20 years, we think they're existing and should be treated as such, and they would be subject to a type of scientific assessment. That would be a categorization process, as well as a further risk assessment if warranted.

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

What I gather from this is that, subject to further consideration by some of the witnesses at the table, this actually might be a step that everyone could agree to. What I'm getting is that this may be the case.

On a larger point that my colleague raised, the trade-offs we're facing, if there's one comment that has been consistent about CEPA and its administration, it's how long it has taken, that as a result of the complications and length of the processes, we still are in a situation where we're in a bad place internationally with regard to the elimination or management of certain substances. I don't know whether this is a fair characterization, but I guess the trade-off we face is, on the one hand, the kind of discussion we've heard about toxics from industry representatives and the degree of inconvenience that represents to them versus what might be a larger inconvenience in making an already slow process even slower because of the element of uncertainty it introduces. Not one witness has accused CEPA of going too fast, or implementing too vigorously, or being world-class in getting ahead of other countries.

Is that a fair characterization of the trade-offs that the committee is facing?

[Hugh Benevides]

I think so. For example, PollutionWatch, in our submission, has recommended that mandatory timelines be placed in the act, at important stages of the act, so that action is taken at those stages, just as the categorization exercise was completed.

So going back to the question of how the in-commerce list should be handled--and I was being cautious until I knew I fully understood the proposal--I would say that the new substances notification process has some timelines in it, which is good, and the other attribute it has is that it places a greater burden of proof on industry to produce the data, which is of course something we're advocating.

Where I'm a little cautious is where things may move too fast, in a way that's not warranted. My understanding is that where a number of days pass--I believe it's 45 or 60 days in respect of a new substance--after an application to allow that new substance into commerce, where that deadline passes, the substance is automatically allowed into commerce. That's precisely the kind of approach we would like to avoid.

For example, where Europe is developing its REACH process, there will be greater, not fewer, obligations to submit data, not merely a timeline where, if you wait long enough, your substance can automatically enter in. So it is a very important issue, obviously, how to deal with timing.

[Al Hamilton]

If I understood properly, what you said was that if you start to create other categories, for instance, then you would slow down the process. Our position is the opposite, that if you don't spend your time debating the toxic/non-toxic issue so much and you get to the point of what needs to be done, it would go faster.

In our case, there was a working group set up that included many municipalities, provinces, and producers of salt. There were a couple of environmental groups on there as well. That work went quite well when we actually dealt with the issues, but we spent a lot of time arguing about toxic/non-toxic. So our position is that if you create another category, you actually speed up that part of it. And again, if you zero in on the issues, you speed it up.

[Mark Winfield]

In terms of the trade-off, there is a question of inconvenience and concern over perception versus the risk to the constitutional basis of parts 5 and 6. To me, that trade-off is pretty clear in terms of which side I would come down on.

In terms of accelerating the process, there are a number of possibilities regarding getting us into the conversation about what to do more quickly. One possibility, which was raised before, is that the decision about whether or not something is toxic is relatively straightforward from a scientific perspective, in terms of where Health Canada and Environment Canada end up. Indeed, the actual territory around whether or not greenhouse gases, ammonia, or even road salt are toxic in terms of their environmental effects is relatively uncontested.

Where the large argument ensued, before substances got to schedule I, was around a whole bunch of risk management issues about whether or not control on a substance would have harmful economic effects and around what sorts of measures were already in place—conversations that really belong in the risk management phase of the process, after we've put something on schedule I. A structure of processes unfolds at that stage; the regulatory policy is invoked in terms of risk management, cost benefit analysis, and consultative requirements.

Of course, one other possibility to get us to that conversation faster would be to allow the ministers of health and the environment to add directly to the list of toxic substances without having to go through cabinet, because clearly one of the sources of delay has been the interventions by other departments, for which certain industries are important client groups that have slowed the process down. It's why road salt isn't on schedule 1 yet, even though from a technical perspective it's pretty straightforward.

The issue is that once it's on schedule 1, what do you do? I agree that's a different conversation, but there are ways we can get to that conversation faster.

[The Chair, Conservative, Bob Mills]

Mr. Godfrey, we're considerably over time.

I know Mr. Ethier and Ms. Coombs want to make a comment.

I will go to Mr. Bigras, and if you could get your comments in as part of another answer here, we hope to get to a second round.

So could we please do that and go to Mr. Bigras right now.

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

Thank you, Mr. Chairman.

I would like to thank the witnesses for appearing before the Committee today.

This morning, I'm going to play the devil's advocate. I have discovered that every year, huge amounts of road salt are used on Canadian roads. I was very surprised to learn that. I was also surprised to discover that highway salt is only effective as long as it stays on the road. Because of leaching and drainage directly into highway ditches, it is having a significant impact on the environment, wild life and fish habitat.

However, I was reading some material this morning that said that the provinces took quick action in response to the impact of road salt on the environment. A code of practice on environmental management of road salt is now in effect. In Quebec, we have a six-point plan that includes acquiring weather analysis tools, improved spreading techniques and environmental monitoring programs.

Can someone tell me -- probably the witness from Pollution Watch -- whether these management codes introduced by the provinces have made it possible to attain an appropriate balance? As far as I'm concerned, the fundamental issue is balance. The provinces are responsible for ensuring that public highways are safe. They also have to protect the environment.

So, have management codes improved the situation by achieving that essential balance and ensuring that road salt isn't added to the list? That is what we should be aiming for. I'd like to know whether there has been any analysis done in that regard.

[The Chair, Conservative, Bob Mills]

We'll go to Mr. Teeter.

[Michael Teeter]

Thank you very much for your question and comments; they really do speak to the complexity of the road salts file. The straight fact is that keeping the roads clear and safe is a provincial jurisdiction, whether it's municipalities that do it or provincial ministries of transport.

I think while everybody characterizes the salt industry as being the evil stopper of this listing process, there really was a very large national debate in which many provincial governments took strong positions, because it was their jurisdiction.

On the issue of the code of practice implemented by Quebec and other provinces, that's exactly what we're saying: the faster the provinces and the municipalities can get in to do a better job of managing road salts, the better; yet we spent years up here arguing over the word “toxic” when we could have been actually out there doing better things for the environment. Hopefully you'll see in the recommendations we're making some very small but practical suggestions to actually get at improving the environment faster.

I thank you for the question. Indeed, the Province of Quebec is doing a wonderful job with its road salt management, as are many other provinces.

[Hugh Benevides]

I think Monsieur Bigras has raised an important question. I'm sure those management plans as implemented in the various provinces have, as he suggests, resulted in less use of road salt.

I would simply note that without the process of investigation at the federal level of the impacts of using road salt we would never have had those results happen. The reason for that is quite straightforward: it's that we know that when there is a credible threat of regulation at any level of government, then action ensues. It's a great motivator for action. So it's an appropriate role, and we all know that protection of the environment is a responsibility that's shared by the two levels of government. Indeed, for example, if Quebec, as it often does, were to have taken earlier action on the road salt issue even without that assessment of salt—all that scientific work that was done—I don't think it would have been very likely for those other provinces to put in place effective management plans and to reduce.

A key thing about the road salt example is also the cases where there are other uses. Many of us have travelled to other parts of Canada where, in the winter, you see—based on availability and other factors—the use of sand. You also see the use of other chemical products, which may have different attributes. It's an example of where this kind of series of events motivates us to find better alternatives.

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

That shows that agreement may be possible on ways of cooperating. Of course, there have been federal studies. However, I think cooperation is by far preferable to any federal law imposing rules of conduct on the provinces. Just between you and me, Ottawa is a long way from the municipalities and from Highway 175, in northern Quebec.

Mr. Bramley, you pointed out -- quite rightly -- that the Governor in Council added greenhouse gases to Schedule 1 of CEPA on November 22, 2005. Ms. Collins, you told us that you referred extensively to the LaForest judgment. However, you should also have said that some justices dissented with that Supreme Court judgment. Supreme Court justices -- and this is of some significance politically -- were not of one mind in terms of the kind of follow-up needed in relation to Canadian laws.

I'd like to hear your assessment of the impact of the November 22, 2005 federal government decision relating to transportation plans, for example. By adding greenhouse gases to Schedule 1 of CEPA, could the federal government turn around and tell some municipalities how to develop their plans or force them to adopt building codes it felt were more appropriate?

Of course, there would probably be fewer battles, but doesn't this open the door to constitutional battles?