Environment Committee on Dec. 11th, 2006

[The Chair, Conservative, Bob Mills]

I call the meeting to order.

I will remind members that tomorrow we have a very full slate. We have something like ten witnesses for our final round table.

You will recall that we had the international activities meeting. We heard from all of our witnesses. What I'd like you to do, if you can, is to please review the testimony and submit questions that you might have had. We could then get answers to them. I think it was a very good session, but because of the fire alarm we never really got to ask the witnesses questions. I think this is the best way to deal with that, so that's what we'll do.

I'd like to welcome our witnesses.

Welcome as well to Mr. Glover and Ms. Wright. Feel free to jump in wherever necessary, as you do.

We'll begin with Kathleen Cooper from PollutionWatch, please.

[Kathleen Cooper, Senior Researcher, Canadian Environmental Law Association]

Good afternoon.

We've prepared notes that we'll need to revise slightly, and only slightly, in light of Friday's announcements.

I'm going to talk about consumer products, and if there's time we'll get into the in-commerce list.

The Canadian Environmental Protection Act, 1999 gives the power to regulate toxic substances in consumer products and to make regulations controlling the import, manufacture, use, quantity, and concentration of substances in products, as well as for packaging and labelling. However, it's not been used. A number of things were suggested in Friday's announcement, and I'll talk about them in a minute.

The legislative overlap and interdepartmental jurisdiction issue to raise today concerns the issues between CEPA and the Hazardous Products Act. I've had many years of experience trying to advocate for better regulation of lead in consumer products under the Hazardous Products Act, and I have been extremely critical of it. It's product-by-product focused; it's entirely reactive; it comes into play only after very serious problems have been identified, and after damage, even death, has already occurred; and it's—painfully—slow. I've brought some examples to illustrate this, where the Hazardous Products Act was used to regulate lead in jewellery, and used, in my opinion, quite ineffectively.

Lead was banned from gasoline in 1990, and ever since there has been a steady stream of lead in consumer products, most particularly in jewellery. I have a whole bunch of examples here. The suggested level of lead that these products should not exceed was 90 parts per million. This key chain fob from the Lindsay Pontiac dealership in the town where I live is 535,000 parts per million. This necklace is 965,000 parts per million; that's 95% pure lead. I have a whole lot of examples. This lapel pin that was given out at a conference I went to on child care and early learning is 3,000 parts per million. I was given another one by the Canadian Institutes of Health Research, which was about 15% parts per million; that's 15,000 parts per million.

I have a whole bunch more of this stuff—it's as plentiful as pennies—but the only one of these that would be covered by the regulation that finally got put in place under the Hazardous Products Act after six years of talking is this one, because it's marketed to children. The regulation under the Hazardous Products Act is not effective in dealing with a problem that is very serious: a child handling or putting in their mouth this key chain fob that's 535,000 parts per million would be getting a very dangerous exposure to lead. I'm getting lead on my hands right now.

I go on a bit of a tangent on lead in jewellery, so I'll stop there.

Another and more recent example of a failure to regulate products is the PFOS chemicals. The announcement in the summer to address these chemicals exempts imported consumer products from regulatory action under CEPA. We are told that this may be addressed in the future; that remains to be seen.

The decision to regulate flame retardants—again, a decision made last summer—saying that we would ban under CEPA, or classify as toxic, the octa and penta mixtures of flame retardants addresses those that have already been voluntarily withdrawn. The ones we are not addressing, the deca-PBDEs, are increasingly in use and remain a serious problem, as their toxicity information is just as compelling, or almost as compelling, as for those others.

I brought with me a piece of foam. Everyone of us is sitting on PBDEs right now. There is a toxic legacy here of enormous proportions. We are still dealing with the problem of lead in paint, a consumer product from the 20th century, which remains an issue for 25% of the homes in Canada. It's something we'll need to be vigilant about and aware of for many decades into the future, in terms of toxic exposure to lead. That's nothing compared to foam and other places where PBDEs are in consumer products now in our homes, in our offices, in our child care facilities, and for which low-income people are going to bear the brunt as these products break down over time and become increasingly part of house dust. We need to ban these kinds of substances before this enormous legacy gets created for future generations.

Many of these examples we can discuss more. It's a situation where products are not adequately regulated, because trade trumps health. That is what happened with this lead in jewellery. Regulatory impact analysis under the Hazardous Products Act said the reason there was a choice to not regulate beyond the few that are marketed to children was that it would create an undue economic hardship for the costume jewellery industry. That was the rationale for not regulating a wide range of toxic lead products, and I find that unacceptable.

Another issue of overlap or confusion between CEPA and the Hazardous Products Act concerns the issue of hazard labelling. Again, I'll use another product to illustrate the points I'd like to make about this. This is a product called Goof Off, a very cute little title. It has several hazard symbols on it. It contains several substances, one of which is toxic under the Canadian Environmental Protection Act, 2-Methoxyethanol, or diethylene glycol monomethyl ether.

In Friday's announcements about the fact that more action is going to be taken on toxic substances in Canada, there is a lot of useful information on that new website, one of which is an area where there's a section of fact sheets about certain chemicals that are of interest to Canadians, and one of them is this substance.

This fact sheet says that this chemical is used mostly as a solvent and it was found at one time in nail polish remover, in all-purpose cleaners. Current information indicates 2-Methoxyethanol is now being used only in one consumer product, a cleaning solvent for white boards.

I checked because I thought, great, so it's not being used anymore, because my husband bought this at Canadian Tire about two years ago. I went to check at Heron Road and Bank Street, at the Canadian Tire today, and found this product still on the shelf. So this fact sheet on the website from Friday's announcement is incorrect. It's just an example of widely available products with extremely toxic substances in them.

The warning labels, the hazard symbols, as far as they go under the Hazardous Products Act work just fine, but it's only to prevent you from acute poisoning, blowing up or burning yourself badly, etc. That is not addressing the same sorts of toxicity concerns that are addressed under CEPA, the chronic toxicity issues.

If you look at the example of this chemical again, it's classified as CEPA-toxic. I'll give the government credit for what was announced on Friday, that there is apparently a plan to put this under the prohibition of certain toxic substances. They're going to exempt for certain occupational exposures...so maybe that will happen. I'm waiting to see it, because that is one of the few examples where there will be some kind of control on something that's in a consumer product. This chemical is a suspected developmental toxicant, a suspected endocrine toxicant, a gastrointestinal or liver toxicant, a suspected neurotoxicant--those chronic health effects that we address or we are supposed to start increasingly addressing under CEPA, which are not addressed under the Hazardous Products Act.

The solution that we're suggesting is the notion of a materials use approach. It would deal with the three things we're suggesting--materials use, better labelling, and recall powers.

So on the issue of materials use, what we're suggesting is something like lead, and this example. Lead is a very useful substance. There's no substitute for it, for example, in car batteries, X-ray shielding, or certain cable sheathing applications. It's an enormously useful substance and we wouldn't want to ban it. Plus it's naturally occurring. We wouldn't want to eliminate it completely.

But it's highly toxic. It should not be in the key chain fob sent to me by the War Amps trying to raise money. It's 75% pure lead, and my children could play with it and be poisoned by it. That's not regulated. So the notion of a materials use approach is that if it's declared toxic under the Canadian Environmental Protection Act it should not be allowed to be widely used, except under certain circumstances. So allow for the exceptions.

In the Goof Off example for this chemical, which is also toxic and is deemed to be toxic under the Canadian Environmental Protection Act, it would not be allowed to be used in something like this. Maybe there are a few occupational exemptions, and that's what's suggested in the fact sheet on the website. That would be it. It's much more efficient to say there are a few exceptions for the use of something and otherwise you can't use it, than to have to do what the Hazardous Products Act does, which is product-by-product individual analysis to determine whether it can be used or not. We can talk about that in more detail if you like.

There is the suggestion to get a better labelling arrangement in this country. As I mentioned, the Hazardous Products Act labels are good, as far as they go. In addition to the warning symbols, there's information on how you should avoid exposure through the use of protective gloves, glasses, or whatever.

But what is in place in California under Proposition 65 is for substances of chronic toxicity...the other concerns we've been raising. I have the example of patio lanterns. This is a product bought in the United States. Here's the Proposition 65 warning: “Handling the coated electrical wires of this product exposes you to lead, a chemical known to the state of CA to cause cancer, birth defects and other reproductive harm. Wash hands after use.”

I don't really like the fact that lead is in here, but I like to be warned and I think other people like to be warned as well about something like that.

Do any of you realize that when you handle your Christmas lights to put them on your tree this year you're going to have lead on your hands, and you should wash your hands after you do that, especially if your children are handling those lights?

So that's one of the suggestions we've made about existing provisions in other statutes in other jurisdictions that we think would be a useful and progressive amendment to make in CEPA.

Finally there is the notion of recall powers, the ability to recall products when a hazard is identified. We don't have that power under the Hazardous Products Act. We need it, and we have suggested a way of putting it in place in CEPA as well.

I know I've gone way over time, and I apologize to Kapil. In light of the announcements on Friday we've made a bit of progress, but we're still at the problem identification stage. Your job in reviewing this law is to really get at the notion that we need to be able to regulate products and not let trade trump health or environmental protection.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you, Ms. Cooper.

I understand, Mr. Khatter, you're just here for support.

[Dr. Kapil Khatter, Director, Health and Environment, PollutionWatch]

There is an additional part to our brief on the in-commerce list, but those are our main points. We can address the others in questions, if you like.

[The Chair, Conservative, Bob Mills]

That would be good. Then you can just kind of back up. We'll probably want to hear from Health and Environment too. You've introduced some pretty interesting things in this.

Mr. Godfrey, please.

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

Indeed, Mr. Chair, I would like to hear from Health and the Environment.

My question initially--and perhaps more to Mr. Glover but not necessarily--is on the comments that have been made about how things actually work to date. Do you feel that is a fair reflection, or are there other factors that should be taken into account now that we've heard from Ms. Cooper?

[Paul Glover, Director General, Safe Environments Programme, Department of Health]

Thank you very much for that question.

There's been a very compelling presentation here this afternoon about areas where there are views that there's clearly room for improvement. We could talk about PBDEs, lead, PFOS, Goof Off, and each one of those is probably worthy of a little bit of exploration, but we should focus on the proposed solutions, which I think are quite helpful and a good starting point.

The Auditor General recently did a report with respect to how well the department was doing in enforcing some of the regulations and pieces of legislation the department is responsible for. The department has accepted those recommendations and has not disagreed with them. That, in many ways, speaks for itself. The tools are there. The department has struggled to enforce all the different components.

Lead is a particularly good example of the number of imported products and the need for inspection and enforcement, the difference between things being made in Canada versus being imported into Canada, and how you're able to stop all those at the border.

To be fair to Ms. Cooper and her presentation, there is also an issue of whether they belong in the product in the first place. What are the allowable uses? Again, that is something the department is looking at closely.

Labelling is a particularly challenging issue, and I would ask the committee to consider the balance there. The department recently introduced cosmetic labelling requirements. Those came into force in November. If you take a look at pesticide labelling, some of the pesticide labels are getting into small books, with the numbers of ingredients. So in some ways it's possible to lose the message, given the volume of information that ends up being required on the label. How to find that pertinent balance is always a particular challenge for the department. All of these things under the Hazardous Products Act are things that have been considered.

There have been debates about looking at that and including something like a general safety requirement, which would require manufacturers to know their product—how it's used, how it's disposed of, who they sell it to, how they sell it—so there isn't the potential to cause harm and create obligations in that regard. The department is constantly looking at how to try to improve the tool itself and is acknowledging that we have had some difficulties with respect to enforcement, as the AG pointed out.

Finally, with respect to the comment about recall under CEPA, some provisions exist today within CEPA if there is a regulation in place, if something is on the list of toxic substances, so there is a starting point within CEPA with respect to the recall powers currently available.

Do you want to add anything on recall?

[Cynthia Wright, Associate Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment]

Maybe a couple of points.

On recall, as Paul said, there has to be violation of a regulation. You could also use the interim order provisions to put in a regulation, if it was something that we just discovered was problematic, and then use recall powers on that.

To be clear, there are regulations dealing with products. There are quite a number in something called the Prohibition of Certain Toxic Substances Regulations. This has a schedule, and that regulation has the authority and is regulating, as Ms. Cooper suggested, when a substance is allowed--and certain products are not--or to what level it's allowed.

Then the point I'll underscore is that CEPA allows labelling requirements.

I mentioned at another meeting of this committee, that part of the issue is that CEPA has tended to deal more with industrial chemicals. Friday's announcement indicates it will start to deal with products, and so there are other authorities for materials in use, for labelling, and for recall under CEPA.

[Paul Glover]

Mr. Chair, I have one final point.

Under the proposed amendments to CEPA, Canada's Clean Air Act tries to make sure it is very clear that CEPA would deal with products that emit air pollutants, and that is also to provide clarity that CEPA could deal further with products in that regard.

[The Chair, Conservative, Bob Mills]

Mr. Godfrey.

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

I'm a little confused about the borderline or the boundary between the Hazardous Products Act and CEPA. Is the former supposed to be more consumer oriented, and that's why it deals...or it doesn't, but it's supposed to deal with labelling, and CEPA is more behind the scenes? Is that the rationale? What is the distinction, since we're dealing with legislative overlap here?

[Paul Glover]

Presently, the way the department views the distinction is that the Hazardous Products Act would deal with the product in its entirety. It could deal with the individual ingredients in it, but it tends to deal with the product itself.

For example, there has been a lot of attention to baby walkers and those sorts of things. So the product itself is dangerous; its design is one that is problematic for the consumers. Another example is those little bath seats for giving babies a bath. There have been a number of drownings. The baby walkers were designed such that they could fall down stairs.

So it tends to deal with the product itself, whereas CEPA tends to regulate the ingredients.

The Hazardous Products Act, though, will prevent the sale of those products that might continue to have those ingredients, so it can be covered off at both ends—for example, products containing certain forms of asbestos and how those are controlled.

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

If the Hazardous Products Act deals with the whole product, then the materials use approach would seem to have more to do with that than with CEPA.

[Paul Glover]

Absolutely, that's correct. A large part of the announcement that was made on Friday and the intentions of how the departments plan on using CEPA is to require industry to provide us data on how they're safely using these substances, satisfy us, and that they know how they're using these chemicals. Are there residual amounts in products? If there are residuals, what is the likelihood or possibility that these could lead to harm, could be released into the environment, and so on?

[The Chair, Conservative, Bob Mills]

I think Ms. Cooper wanted to—

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

In fact, I would like to follow up with Ms. Cooper on this.

Is the reason you want CEPA to do it because you are unhappy with the way the Hazardous Products Act has done it, and you're trying to do a save, so to speak?

[Kathleen Cooper]

I guess it's a little bit of both. The Hazardous Products Act is 37 years old, entirely reactive, and product-by-product focused, all of which is very cumbersome and slow. The example of lead is what I use to illustrate that.

As you know, we have identified in the last 15 years, especially the last 10 years, increasingly the fact that hazardous exposures indoors, where we spend most of our time, are originating from products. The Hazardous Products Act doesn't have the structure, the resiliency, or the ability to prevent those problems from happening. It reacts after a problem has occurred, and so far, anyway, it's only situations of extremely serious hazard, of well-known, well-established hazards of a small number of substances.

CEPA is addressing the entire range of chemicals in commerce and has the ability, and can increasingly have the ability, to address more chronic toxicity and a broader range of health effects.

The notion of materials use is an efficiency measure as well, as you get beyond that product-by-product focus. To me, it's more logically situated in CEPA than in a product-focused statute such as the Hazardous Products Act, but the two need to dovetail.

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

Mr. Glover.

[Paul Glover]

I do not disagree with that comment. In fact, I think the challenge from the ministers of health and the environment, with their notice of intent over the weekend—while we don't necessarily use those exact words—is getting at how industry is using those products, what are appropriate uses, and what are inappropriate uses. That information would then be provided to the departments, and we can take action under CEPA and the Hazardous Products Act to ensure that there is the appropriate dovetailing.

But the action itself is being initiated under CEPA, section 71, and the legal requirements to provide the Minister of the Environment the data necessary to allow us to make that kind of assessment.

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

So if I may summarize—and then I realize it's time to move on—there seems to be a bit of agreement that CEPA is the place to be more proactive. It has the tools and it is a more evolved piece of legislation; and until such time as we actually revisit the Hazardous Products Act in a similar kind of review to this one, we should be using it to be forward looking. There seems to be agreement on the panel between you.

[Paul Glover]

I think that's fair to say.

I'd also note, as was pointed out, that the Hazardous Products Act is one of the pieces of legislation the department would like to update. It is getting on there.

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Bigras.

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

Thank you, Mr. Chairman.

I'd like to get back to the subject at hand, namely our efforts to better understand interdepartmental cooperation and legislative overlap.

As I understand it, the Canadian Environmental Protection Act, 1999 impacts not only Environment Canada and Health Canada, but other departments as well, including Fisheries and Oceans Canada, Transport Canada, Indian and Northern Affairs Canada, Foreign Affairs and International Trade Canada and Agriculture and Agri-food Canada.

What type of coordination mechanism have you put in place to ensure that all departments apply and abide by the provisions of the Canadian Environmental Protection Act?

[Cynthia Wright]

Just to be clear, I think what you're getting at is that CEPA deals with regulated communities that are dealt with by other departments.

There are many mechanisms to ensure that Health Canada and Environment Canada are not at cross purposes to Transport Canada or Agriculture. In CEPA 1999, there is an authority to recognize that other acts have functions like CEPA in reviewing new substances before they come to market and doing an assessment. In those cases CEPA is essentially a benchmark, so the Governor in Council decided that where other pieces of legislation were equivalent to CEPA, there are schedules, and those departments do work that's similar but for different clients. So for seeds, feeds, fertilizers, Health of Animals Act, pesticides acts, they are looking after new substances in their domain and with their clients.

There is a lot of coordination and collaboration between risk assessors, because sometimes something is used in more than one area. Something might be used in a pesticide and it might be used in an industrial process as well. So the risk assessors have regular mechanisms for communicating with each other to make sure they're handling those new substance assessments in a coordinated way.

There are other ways we could regulate something under CEPA, but another body is already regulating it. A good example that we've dealt with in the last few years is radionuclides. These were radionuclides from mills and mining. The substance was found to meet the section 64 criteria under CEPA, but rather than having Environment Canada and Health Canada become a regulator, there's already the Nuclear Safety Commission. Environment Canada entered into a memorandum of understanding, and the Nuclear Safety Commission has the same authorities. It is actually managing this and reporting to Environment Canada on how well that's going.

There are other areas where we simply collaborate, such as Transport Canada. We coordinate with Transport Canada, which is doing other safety issues on a regular basis, and Environment Canada is regulating fuels and emissions from cars. It's a regular, ongoing cooperation between the two departments.

So I think it depends on the issue. There are several different mechanisms we're using, from formal memoranda of understanding to informal cooperative mechanisms.

[The Chair, Conservative, Bob Mills]

Mr. Khatter, I think you wanted in.