Environment Committee on Dec. 12th, 2006

[Aaron Freeman]

I don't think it's fair to say that they are not in commerce. Maybe we can get a more technical definition from the officials. My understanding is they are no longer significantly in use in the ways that they were in use when they were first listed.

[The Chair, Conservative, Bob Mills]

Mr. Lloyd, I think you wanted in there first, and then we'll go to Mr. Moffet.

[Gordon Lloyd]

If I could just pick up on this idea of reverse onus, I think you really hit it on the head. There is essentially a reverse onus that operates already under the legislation in the sense that, for new chemicals, companies have to provide information. The government then makes an assessment, and if they want more information, they get it.

The real key issue in comparing this to REACH is, who do you want to make the assessment? In REACH, they're going to have the companies make the assessment. There's some kind foggy evaluation that the government will make later, but that will be a long time later. You don't know when. In Canada, for new substances, the government makes the assessment when they make the decision, and the companies have to provide the information.

We've kind of started to move into that same paradigm with the announcement on Friday. Clearly, for the first 200 or 500 substances that they're going to work on, that is how it's going to operate. They've identified the schedule they're going to assess these on, industry will need to provide what information it thinks it is going to have to provide, and the government will then make the assessment. We're going to get through that schedule of those 500 top priority substances within three years.

REACH, on the other hand, has a list of substances that may be subject to authorization, which basically is similar to, say, our virtual elimination. In an OECD meeting I went to recently, the Europeans noted that they'll probably deal with 20 of these a year. They're going to take much longer than we will to get through the list of substances. The European official I talked to said the length of time this is going to take isn't something they really publicize. But I think we have a much more efficient way of dealing with this in categorization, and we in effect do have what I'm not sure is technically reverse onus, but in effect it has the same purpose. The government will make the decision, and they'll get the information they need from industry to make it.

[The Chair, Conservative, Bob Mills]

We're going to have go on, Mr. Scarpaleggia.

Mr. Bigras, please.

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

Thank you, Mr. Chair. I’m going to share my time with Mr. Lussier.

My question is concerned mainly with the equivalency provisions in section 10 of CEPA and is aimed chiefly at Mr. Lloyd, in light of his brief, and at Mr. Teeter.

What you’re actually proposing to us this morning is to amend CEPA so as to integrate the provisions of Bill C-30. Without going into an exhaustive comparative analysis, I’d like you to tell us what the implications would be of amending section 10 of CEPA by integrating the principles of Bill C-30. What improvements would your proposal bring about?

[Gordon Lloyd]

Bill C-30 has a very simple amendment to section 10. It basically says that instead of a province having to have the same regulation as the federal government, it has to do something that has the same effect. So certificates of approval or permitting that provinces use could be then recognized, which would make the provision much more effective. There's also an amendment that adjusts the timelines of how long an equivalency agreement would last.

That's a very simple amendment. There are two other even simpler amendments that I pointed to about reporting and dealing with flexibility in provincial regimes and recognizing those and being able to treat provinces differently, depending on, say, whether they're meeting Canada-wide standards. That's probably, in total, about one page of the vast amendments that are in Bill C-30. I think this committee could pick those three amendments out.

I remember when the minister was before this committee, Mr. Godfrey asked her if there were any areas specifically in CEPA that needed strengthening that she could point out and then you as a committee would work on them. I think those are the three elements in Bill C-30 that fit that description, that would be really good to have this committee work on in terms of their being good things for the environment and not have them caught up in what I think is going to become the political football in the discussion of Bill C-30. So I hope that answers the question.

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

Thank you, Mr. Chair.

I’d like to come back to the matter of the Great Lakes. My question is for Dr. Krantzberg in particular.

In your report, you say that the Great Lakes should be designated a “significant area,” so as to curb chemical insults. I think that in Quebec numerous lakes have suffered chemical insults from the presence of what is called blue-green algae. We’ve had a proliferation of zebra mussels, but should we also be afraid of toxins from blue-green algae in the Great Lakes?

[Dr. Gail Krantzberg]

Thank you.

I mentioned calling for the designation of the Great Lakes as a special region in the context of CEPA because there is a large population and large industrial density there in terms of the scale of generation of chemicals, plus a long residence time delay that keeps the chemicals there.

To answer your question about blue-green algae blooms in the Great Lakes region, in fact, we are seeing a resurgence of them. I don't think those toxins are addressed under CEPA. They're naturally produced toxins. It's complicated, but they are a consequence of increased nutrient loadings to the lakes, zebra mussel filtration, and changes in the ecosystem dynamics.

Yes, we are seeing those types of toxins, particularly in the near-shore waters, causing taste and odour problems in the drinking water of the Great Lakes. I can't comment on whether that's a matter that CEPA could address, because it really is one of nutrient control.

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

I return to the same question.

You said that a toxin is not toxic. I’d like to know what Environment Canada is going to do if a large quantity of blue-green algae develops in the Great Lakes and the Lakes are declared to be contaminated by the toxins. From what you’ve just told us, Ms. Krantzberg, the Canadian Environmental Protection Act does not deal with these toxins.

[John Moffet, Acting Director General, Systems and Priorities, Department of the Environment]

There are a couple of points I would mention about the act and authorities in the act.

First of all, the act does have a separate set of provisions regarding nutrients, so the act provides the federal government with the ability to regulate sources of nutrients. There are, I believe, some very old regulations on the books regarding certain products that contain nutrients. The act could be used again in the future to regulate other sources of nutrients.

In terms of other substances that have been designated as toxic, there are a number of substances that have been found in the Great Lakes, which are currently regulated under CEPA. There is full authority under CEPA to regulate any other sources of those toxic substances.

The final point I would add is that there is in CEPA, in subsection 330(3), I believe, the section to which Mr. Lloyd referred at the beginning of his testimony, the authority to develop regulations that apply differently to different regions in Canada. There has to be a clear health or environmental justification for such differentiation.

For example, if there is a particular air quality problem or a particular water quality problem, whereas the problem itself is national and therefore requires national intervention, it may be particularly severe in one region. Under the law, the government could develop a regulation to establish a specific standard for that region that is different from the standard that applies to other regions in Canada.

Clearly, I'm not here to comment on how the law has been applied in the past, but I wanted to explain to you the various authorities that exist within the law and how it could be used.

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

Mr. Moffet, you used the word “toxic” but not the word “toxin” in your presentation. That’s what worries me. If a lake or the Great Lakes are contaminated by toxins produced by blue-green algae, can you intervene? No section of the Act stipulates that you can intervene and prohibit the drinking and use of water. Are these matters the responsibility of Health Canada?

[Steve Clarkson, Director, Bureau of Risk and Impact Assessment, Department of Health]

Mr. Moffet described how we could deal, under CEPA, with the fact that the toxins are growing in the water by trying to remove the nutrients--

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

If the toxins are present in the lake and the lake’s water is declared unfit for drinking, what do we do? Is there a legislative vacuum here?

[John Moffet]

I think your observation is correct. I don't believe the act provides authority to the government to remediate problems that have arisen. There are certain emergency provisions.

[Marcel Lussier, Bloc, Brossard—La Prairie, QC]

Are the drinking of water and the health risks associated with it matters of provincial jurisdiction?

[Steve Clarkson]

Yes.

[The Chair, Conservative, Bob Mills]

Ms. Krantzberg.

[Dr. Gail Krantzberg]

The instrument you have that you could use in this case may not be a CEPA instrument, but it may be implementation of the Great Lakes Water Quality Agreement and the Canada-Ontario agreement protecting the Great Lakes basin and St. Lawrence region.

[The Chair, Conservative, Bob Mills]

Thank you very much.

Mr. Cullen.

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

This is an interesting line of questioning. But I want to return to a point you made earlier, Mr. Freeman, about the recent announcement, because we have this convergence of efforts around CEPA at the same time as this committee has been doing its review.

You mentioned the 300 chemicals that were listed on Friday. Can you just expand a bit on your answer to Mr. Scarpaleggia about the incidence of these chemicals and how profound their use is in Canada?

[Aaron Freeman]

I can go through a couple of the chemicals that are on the list. I should clarify that 300 were what's called CNAP, or certificate of new application process, where they've essentially said these aren't in the market at relevant levels. If you want to reintroduce them into the market, you have to go through the new substances regime.

They've issued the challenge to industry to show that 200 of these chemicals are safely managed. One of those chemicals is bisphenol A. This is the number 7 recycling symbol on hard plastic containers. Just last week there was a study linking this chemical to breast cancer. There are a number of studies that link it to cancer.

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

I guess where my questioning is leading is just to understand that when numbers are brought forward, there's a propensity in government to want to overextend the significance of any announcement. There was some action that the law required, and that happened.

There are certain chemicals that, while significant in their danger, are not significant in their presence within society. They just aren't in common usage. They existed 20 years ago, or they're in very small amounts. I see Ms. Tilman is nodding and Mr. Lloyd as well. I don't want to delve too much into Friday's announcement because we're still digesting it.

On your quotes around Mr. Laforest and the question of toxic, can you remind the committee again who he is?

[Aaron Freeman]

He's a former Supreme Court justice. He wrote the Hydro-Québec decision on behalf of the Supreme Court in 1996. That is pretty much the seminal case on CEPA at the Supreme Court level in Canada.

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

On the portions you quoted, they're always couched in judge's language, and certain words have implications. But there certainly seems to be some strong indication of caution and wariness over the danger of altering the word “toxic” and reopening the act to some potential challenges. I'm not sure if Ms. Mitchell--or who--can comment on that from CIELAP.

Is that fair to say? For the average person listening, the language you quoted might sound rather bland.

[Aaron Freeman]

For a former Supreme Court justice, the language was quite strong. I think he was quite clear that there is a significant danger that this would attract litigation. He noted that the court was deeply divided on the case, and there are serious international and interprovincial concerns about doing anything to the term “toxic”--certainly removing it or weakening it in any way.