Thank you, Mr. Chair, and good morning. It's a pleasure to appear again on this most fundamental topic as it relates to the Canadian Environmental Protection Act.
My name is Hugh Benevides, and I'm staff lawyer with the Canadian Environmental Law Association, as most of you know. Together with Environmental Defence, our project, PollutionWatch, has made a substantial submission to the committee on this review.
With me again today is Dr. Kapil Khatter, also with PollutionWatch.
I want to make seven interconnected points, and perhaps I'll begin with what was going to be part of my first point last. As we move from the Great Lakes Water Quality Agreement to the Canadian Environmental Protection Act, the weakened notion of virtual elimination, as Mr. Stack has mentioned, is one of the reasons PollutionWatch has made the linkage between the Great Lakes and the act. We see here how a strong binational policy has become much weaker law, and the review of CEPA is the opportunity to give effect to the direction of the agreement, which, as Mr. Weiner says, is now under way. It also allows Canada to lead, not follow, the United States in setting the policy direction. It's our hope that this committee can help to provide the necessary leadership that Canada will have in its report on CEPA.
In the context of the review of the agreement, I should add that we have an opinion piece in today's Toronto Star, and it comments on the state and nature of the review of the agreement as it stands at the moment.
What was initially my first point was just to take virtual elimination back to first principles, as some of the other witnesses have done to some degree as well. While there are a great number of technicalities involved with virtual elimination, one thing we can do is take it back to what is intended. It's very similar in nature to pollution prevention and also to what the International Joint Commission has called the philosophy of zero discharge.
All of these notions are very similar and very straightforward, but what we've lost sight of is what we want to do with VE. I would say those things are twofold. First, virtual elimination should be used to provide new processes and new facilities or retooling of existing facilities, toward the objective of pollution prevention. Secondly, for substances that are already in commerce, virtual elimination can be put into effect by substitution, as has been said, by less harmful substances and processes.
I point the committee to the long title of the act, which makes reference to pollution prevention; the declaration; the second and third recitals of the preamble; and paragraphs (a), (a.1), and (j) in the “Administrative Duties” section of the act, section 2, all of which make it clear that pollution prevention is a national goal and the priority approach to environmental protection. What I want to propose here—indeed, what we have proposed—are provisions that make those kinds of exhortations mandatory.
So the second point, then, is that in addition to those declaratory provisions—the preamble, etc.—the law needs to say that virtual elimination is the mandatory approach for the worst substances, and not just the priority approach. The drafting of that is a task we'd be happy to assist with, but it's a necessary one.
The current section 65, which is one of the key sections dealing with virtual elimination, is flawed because it doesn't take that first step of saying this is the mandatory priority approach. It focuses on releases. Indeed, most of the act, as it deals operationally with VE, deals with releases rather than pollution prevention. It is also flawed because substances can only be added by the CEPA ministers as a political decision, not a purely scientific decision. And I can come back to this point in terms of drafting particular provisions.
Also, while I'm on the subject, section 65 expressly waters down the goal of virtual elimination by allowing the consideration of “relevant social, economic or technical matters” to affect the releases that are allowed. I don't say necessarily that those considerations should not be taken into account, but certainly those considerations are mandated elsewhere in the act and elsewhere in fundamental policies of the federal government, so they are routinely taken into account in any case.
The next point is that we have long recommended a definition of virtual elimination that would give the desired direction and indicate that it's the centrepiece of pollution prevention. The focus should first be on that policy goal that I mentioned, so I'm going to read this definition that we've proposed in the past. I apologize that I haven't distributed it to the committee in advance, but I can provide it.
Our definition says that virtual elimination means the mandatory cessation of the intentional production, use, release, export, distribution, or import of a substance or class of substances. Where a substance is produced as a byproduct of the production or use of another substance, virtual elimination means changes to processes, practices, substitution of materials, or products to avoid the creation of the substance. That ties back into what I said at the outset about the two branches of pollution prevention and virtual elimination for which we're advocating.
As a companion to and tied into this is the need for mandatory language in the act that requires substitution of less harmful substances and processes, as well as stronger provisions for pollution prevention plans in section 56 of the act.
The next point is getting into the release section, those provisions that are already in the act and have been spoken to this morning already. We're advocating more mandatory language. For those substances already in circulation, the need for substitution would be expressed through obligations for reduction and elimination of releases.
The current section 65 needs to be linked with mandatory language to get to the ultimate reduction of the release of the substance—that wording that I believe Mr. Lloyd referred to this morning. Currently, there is nothing in the act linking that ultimate reduction to steps to get to that point, to what would amount to zero or close to zero.
Part of the puzzle with virtual elimination is the wording of the decision to list the substance as toxic. If you refer to section 77, which is the point where the ministers make the decision whether to list a substance as toxic, also tied into that is the decision on whether a substance should be targeted for virtual elimination.
This is a difference of opinion, but I believe we're talking about the same provision. Mr. Lloyd contended earlier that it's a mandatory provision. I contend that subsection 77(3) provides that where the ministers are satisfied that a number of conditions are in place, that is actually a quasi-mandatory or quasi-objective standard. It actually is a subjective standard. The ministers have to make a decision, whereas we would prefer that they rely on a scientific decision and that there not be any play in there for the ministers' satisfaction. It's cutting out that stage, and I have wording to eliminate those words. In the interests of time I won't read it, but I will of course provide it.
As a result of that change, existing subsection 77(4) would be deleted under our recommendations, as it becomes unnecessary.
The next point, which is tied to that, is on the issue that “the substance is not a naturally occurring radionuclide or a naturally occurring inorganic substance” is removed from the ambit of virtual elimination in the subsection that I'm suggesting be deleted, subsection 77(4).
I believe the exception of “a naturally occurring radionuclide or a naturally occurring inorganic substance” appears somewhere else in the act as well.
Part of the reason we would suggest the deletion is that it's not included in the Great Lakes Water Quality Agreement. I would recommend to the committee the excellent paper by your researcher, entitled “Virtual Elimination of Pollution from Toxic Substances”, from July of this year. It correctly identifies the addition of those words as weakening the concept of VE as it appears in the Great Lakes Water Quality Agreement.
The last point, Mr. Chair, is on other discrepancies with international agreements. I point out in this context that the persistence and bioaccumulation regulations are regulations made under CEPA that allow the departments to determine whether a substance meets those two criteria and to set the criteria for persistence and bioaccumulation.
Those criteria are three times higher for persistence in water than is recommended in the Stockholm Convention on persistent organic pollutants and three times higher than what is in the Great Lakes Water Quality Agreement. The criteria are two times higher for sediment than what is recommended in the Stockholm Convention.
With those mixed, fairly straightforward, and also fairly technical recommendations, I leave it there and look forward to your questions.