Environment Committee on Dec. 12th, 2006

[The Chair, Conservative, Bob Mills]

Thank you very much.

We'll go on to our final presenter, Ms. Tilman.

[Anna Tilman, Chair, Save the Oak Ridges Moraine Coalition]

Thank you very much. I appreciate the opportunity to present here. I am presenting on behalf of the Canadian Environmental Network's toxics caucus, of which I am co-chair, as well as the organization, STORM Coalition, in southern Ontario.

What I would like to do in this presentation is reinforce some of the key principles and themes that have come from environmental organizations and others during the review period and to highlight areas where the review has not addressed certain topics and they require further attention.

I will start by saying that the preamble of CEPA is laudable. Many features of the act are commendable, but much of the act has yet to be implemented, to test the waters in many ways, or enforced. These kinds of issues, like implementation...if an act is not implemented, what are the barriers for implementation? What problems have arisen? Why hasn't the act been implemented? Where is the enforcement regimen? We've heard examples that this has not been done.

Some of the witnesses have already stressed some of these key principles, but for the groups I represent, I want to reiterate that implementation of the precautionary principle...we've heard that. One of the hindrances may be, in the clause, the cost-effective constraint, so the committee should consider whether that is a barrier.

Pollution prevention is the cornerstone of CEPA 1999; “it's the priority approach to environmental protection”. However, when it comes to implementing pollution prevention, there's a lot wanting in this, and I will cite specific cases in which I've been involved. One is developing pollution prevention planning for a number of sectors or substances, and to date, after seven years, there have only been eight of these plans. We can't review them yet because they're not implemented yet.

Many of these plans--and I will cite one case for base metal smelters in Canada, which are the largest emitters of CEPA toxic metals. I use the word “toxic” because that's what these metals are when released into the environment, as well as being the prime emitters of sulphur dioxide in Canada. They have limits under these pollution prevention plans that are factors to consider. They're not legally enforceable.

This has taken years to develop. This particular sector has been under scrutiny for 20 years, and what we now have is a plan that may be implemented by 2015. Meanwhile, the pollutants can go unguarded, and there are no limits to metals like mercury, cadmium, lead, and so on. So is that prevention? I would say we need to look at strengthening pollution prevention, if it is to be the cornerstone.

The other area is public participation. I wouldn't be involved if it weren't for public participation clauses under CEPA. However, barriers have been noted in information access. But perhaps for the public, one of the most important tools of public participation has been the national pollutant release inventory, and that is crucial for the public to know what pollutants are being released into their environment and by what medium.

Lately, you've noticed a lack of will to make changes in the inventory. There have been significant changes, but there's been a bit of a downturn, and one questions the will to do this and the pressure that's been put on the inventory to lessen the burden of reporting. It's not the burden of reporting; it's the burden of pollutants on the environment that we have to worry about. Also, I've cited other issues with the inventory that should be examined to make it a more reliable, accessible information tool for the public.

I will go on to the next topic, which Dr. Khatter has dealt with as well, and I agree completely with...the assessment of toxic substances is a critical issue for CEPA. It's the time constraints to do these. Some of these assessments have taken years. Some aspects don't have timelines imposed on them, and as a result, exposure continues. No precautionary principle is invoked in any of these assessments, and vulnerable populations bear the brunt of this. The use of safer alternatives or substitutions is not part of the process, and one has to consider the synergistic effects of multiple exposures to these pollutants.

Definitely the burden of proof and shifting the burden of proof to industry are critical, as is doing it in a way that makes sense. Reference has been made to the scientists' report that illustrates examples of this. Also, the act should be effectively banning or restricting and phasing out the most persistent bioaccumulative toxins.

I want to briefly talk about virtual elimination, and I agree completely with Dr. Khatter's views on this. I've been involved in the one substance that will go on the list, HCBD, hexachlorobutadiene. That substance is the first to enter the list, and if it's not a household name with you, I wouldn't panic, because it hasn't been in the Canadian market in years. If any contender is to make the list, it's the one that would create the least fuss. I consider it like a test case. After all these years, one makes the list, and it's one that isn't a household name or that may be as much of a concern as other substances that are out there.

Similarly, it's the use of this level of quantification that I question as a scientist. It is defined in a way that says it's the lowest concentration that can be accurately measured using sensitive, routinely available technology. Well, for substances, it is set magnitudes above what many devices can now detect, so I think that's a contrived concept. You should investigate it, and I agree with looking at the zero discharge concept and what is met in the Great Lakes Water Quality Agreement. I would strongly recommend that the committee look at the virtual elimination clauses.

Another area is accountability and enforcement. We've heard about a number of these tools, like the polluter-pay principle. How effective are they? They're not used. Is it the will? Is it that the resources to enforce are not there? Are they too discretionary? That's another area.

Another point is federal–provincial processes, and I'd like to cite an example of harmonization and where CEPA should have been used, could have been used, and was not. As you are probably aware, the Canada-wide standards under the Canadian Council of Ministers of the Environment and the harmonization accord were set out to establish or develop standards—they're not standards because they're not legally enforceable—for a number of substances of concern. Quebec, as you know, is not a signatory to the harmonization accord.

I'll cite the fact that Canada-wide standards are not necessarily health-based. They're neither adopted nor consistently monitored in all jurisdictions. The one case I'll cite is mercury. I've been involved in all of these Canada-wide standards, but mercury is the one, and it would probably be the most pervasive bioaccumulative toxin known. Finally, after many years, a “Canada-wide standard” was developed for coal-fired plants. This has just come out; however, it's completely inadequate if you look at the values and comments about this standard. Also, it has cited, for example, zero mercury releases for Ontario, but we know that's not going to happen because Ontario is going to continue with its coal plants. No standards have been set for mercury for coal plants in Ontario. I'm sure you're aware of their continual battle with whether we should close coal plants in Ontario or keep them going. We don't know what we're doing, but that's another issue.

The concern I have about Canada-wide standards is that it has taken so much time to look at some of these substances, particularly something like mercury, as well as dioxins and furans, although mercury has been the longest going here. In all of that time it has taken, and with the arguments not to bring in regulation under CEPA—which many of us strongly supported—we're left with an inoperable document in the Canada-wide standard. If CEPA had regulated in the first place or had looked at regulation, after all these years I would have expected that for a toxin such as mercury, this would have been the way CEPA should have been utilized. It has not been. I contend that the committee should examine this.

Also, the concern I have is the potential for devolution of powers and controls to provinces. The Canada-wide standard is a concern showing that while each province goes and sets up its own implementation mechanism, we seem to lack a federal picture for a number of these substances. They are under CEPA. They are declared toxic under CEPA and they are federal concerns. This is the role, in my opinion, that CEPA must play.

Another issue is international agreements.

[The Chair, Conservative, Bob Mills]

I would ask you to wrap up. You're over your ten minutes.

[Anna Tilman]

I'm sorry.

[The Chair, Conservative, Bob Mills]

That's fine.

[Anna Tilman]

I would say the act itself again may need tuning in some areas. These are the areas you should look at, but there are also areas that haven't been heard from, such as waste and so on.

I'm going to leave it at that. I'll tell you that a further report will be submitted through the Canadian Environmental Network, to help with the report on the review.

Thank you very much.

[The Chair, Conservative, Bob Mills]

Thank you very much.

Just to let you know, Mr. Lloyd actually was the winner at 7 minutes and 47 seconds. Mr. Teeter was at 7 minutes and 50 seconds.

Three more seconds and you could have been the winner, Mr. Teeter.

We have an offer of a lead key chain for you as a prize, but we will be working on what sort of prize you'll have in the future, Mr. Lloyd.

I would ask the members if we could keep it as tight as we can, so that everybody gets an opportunity. This room is occupied at 11 o'clock, so we will have to end on time.

Mr. Godfrey.

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

Thank you very much. I will be sharing my time with Mr. Scarpaleggia, because I think we're only going to be getting in one round.

My thanks to all the witnesses. It has been a long trip, but I think we're learning lots.

When you're trying to assess, from 30,000 feet, what you've been listening to over many months, it seems to me that CEPA has to be seen as almost the constitutional base for what we do with environmental issues in Canada. It is a fundamental law, and therefore has to be treated as such. But it also is serving a second function, which I hope is not contradictory, of being a bit of a safety net. It has to capture things that were not anticipated.

The third observation that I would make—and if there's any disagreement or elaboration by the witnesses, that's fine—is that it has to be forward-looking precisely because, as Mr. Freeman pointed out, we don't get to review it that often. We know what happens to old pieces of legislation like the Hazardous Products Act. They are not reviewed and are not appropriate to the time. Therefore, we must be forward-looking. We must examine more recent pieces of legislation, such as the Pest Control Products Act and so on to see what we can learn from them. Indeed, we must also look to Europe, to REACH, and so on, so that we're always ahead of the game and not behind the game. Unless there's a wild disagreement with that, I want to get into a couple of questions.

First of all, on the precautionary principle, Gail Krantzberg and many other witnesses have said we have to apply it. Ms. Krantzberg's view was that we should be looking to other jurisdictions.

Gordon Lloyd said Canada should be better equipped to recognize—and I think I'm quoting—“positive assessments of other jurisdictions”. I'm assuming that if you look to other jurisdictions, you might also get negative assessments. I'm therefore wondering if there's a contradiction between what Mr. Lloyd is proposing and what the other witnesses are proposing about looking to other jurisdictions for issues and clarification on things like the precautionary principle.

Mr. Lloyd.

[Gordon Lloyd]

I'd just like to clarify that on the side of looking at negative assessments in other jurisdictions, we already have that in CEPA. Under section 75, when something is banned—I think “severely restricted” is the terminology—we already look at that and make it a priority for assessing. So we have one side of the coin already, but I'm suggesting that we should also have the other.

The precautionary principle cuts both ways on that. I don't really think that's a difference in either looking at negative assessments or positive assessments.

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

Ms. Krantzberg, while I get you to answer that, could you also answer to Mr. Teeter's observation? He wanted mandatory independent peer-reviewed activity.

[Dr. Gail Krantzberg]

The point I would make about looking at other jurisdictions is that what is an acceptable level of uncertainty varies among jurisdictions. While we have the same science around the world in regard to, say, some of the polybrominated diphenyl ethers, on action applying precaution in the face of uncertainty, there is a greater willingness to provide action in the face of uncertainty in certain jurisdictions than we have in Canada. That's the point I'm trying to make.

The question that comes to my mind—and I think Mr. Teeter makes a very valid point—in terms of third-party peer review is that the challenge really is how to select an impartial panel of scientists who are both as knowledgeable around the science as the researchers themselves are around the science, and share a broad spectrum of understanding of risk and precaution, so that you have that debate at the table when trying to determine whether to take action.

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

Well, thank you very much.

I gather we're nearing the five-minute mark, so I'll turn it over to Mr. Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you very much.

I'm just curious, when did the review of the 23,000 substances in commerce begin?

Mr. Freeman, do you know?

[Aaron Freeman]

The categorization exercise began after CEPA 1999 came into force, and there was a statutory deadline for them to complete that process by September 14 of this year, which was achieved.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That was begun by the previous government. So the next step, then, would logically be what the government is doing today.

[Aaron Freeman]

Or on Friday?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Yes, Friday.

[Aaron Freeman]

Well, that was the government's response to the categorization exercise. They took action on a number of the chemicals, but 500 of the chemicals that are in that list have been identified through the categorization process.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I'm curious, you know, we seem to have this wonderful framework in CEPA, but all of you—and it's an amazing panel, really—suggest improvements to that framework, such as making the precautionary principle operational, bringing in reverse onus, and so on. If these things are not done, will that weaken the effectiveness of what the government announced on Friday? There must be interplay between the two.

[Aaron Freeman]

There is an interplay between the two...there is and there isn't. The announcement is a significant step forward in that it takes 200, in particular, of the most harmful substances that have been identified through the process and it puts them on a track toward regulation. That's a very significant step.

The reason I say it's a significant step is that the next step is to ensure that our overall system for regulating potentially harmful substances deals with threats on a systematic basis. Let me give you just a practical example that relates to the chemical management plan.

Under the chemical management plan, for the first batch of chemicals, the government will issue a challenge to industry. Industry has six months to show that the substance is effectively managed, safely managed, and if they can't do that, then six months following that--so starting in January 2008--they will consider putting the substance on schedule 1 or scheduling it for virtual elimination.

That only starts a further process, which under the current situation, under the current act, takes another three and a half years before you actually get to regulations hitting the ground. So we are actually four and a half years away right now from the first batch of substances being actually regulated on the ground, unless the recommendations that we've put forward on mandatory timelines are put in place. These would cut that down to two and a half years.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

But it sounds as if they've already introduced an element of reverse onus in this initial step.

[Aaron Freeman]

For this batch of chemicals, yes, they've put in place a version of that principle.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

But there will still be issues around risk assessment, will there not? I mean, they will still have to do some kind of additional risk assessment on those 400, 500, or 200 chemicals?

[Aaron Freeman]

I'll clarify. On the first batch of 500, they've done something called significant new applications for 300 of those. So for 300 of them, they've said they're, in effect, no longer in the market. If they want to be reintroduced into the market, they have to go through a separate process that's similar to the new substances regime.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

So 300 chemicals that are the subject of the 500 mentioned in the government's press release are not even in commerce at the moment?