Environment Committee on Dec. 12th, 2006

[The Chair, Conservative, Bob Mills]

Members, could we come to order, please?

Mr. Godfrey has a motion before you and we do have a great many witnesses here. I believe he has consent to move this to the front of the agenda, but I'm going to set a really severe time limit on everybody and ask you to look at it.

Basically, the motion is that we bring the Auditor General to review her proposal to have the Commissioner of the Environment report three times a year with the Auditor General's report. I know this has been discussed. I would like to have just very brief comments.

Mr. Godfrey, you're on the clock.

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

Very simply, Chairman, we've heard that the Auditor General wishes to change the reporting arrangements for the Commissioner of the Environment, who currently gives us one big report a year, as she did in September. The Auditor General wishes to change that to make it three chapters of the Auditor General's three annual reports. I would just like the Auditor General to come and explain why that's so.

[The Chair, Conservative, Bob Mills]

Okay.

Mr. Cullen.

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

Thank you, Chair.

In terms of timing for Mr. Godfrey's plan, I assume this is in the new year. We wish to express our concerns over these rumours as well. We have a concern with the motion that has been presented.

[The Chair, Conservative, Bob Mills]

Are there any other comments?

(Motion agreed to [See Minutes of Proceedings])

[The Chair, Conservative, Bob Mills]

I'd like to welcome our witnesses today. We have quite a number of you. I would ask you to keep your comments--this is more or less a summary session--as tight as you possibly can. I do have this timer, and normally you do have ten minutes, but we would be grateful if you would possibly reduce that time so that the members have the maximum time to ask you questions.

If everybody can turn their watches on when they start, I'd really appreciate that. We will go in the order that's on your agenda, so we'll start with Shannon Coombs, please.

[Shannon Coombs, Formulated Products Industry Coalition]

Good morning, Mr. Chair and members of Parliament.

It's a pleasure to be here today for the wrap-up session of the CEPA review.

As part of our previous presentations to the committee, we have two issues that we wish the committee to include as part of their recommendations in the report to Parliament. Our two key issues would require amendments to the Canadian Environmental Protection Act.

My name is Shannon Coombs and I am the president of the Canadian Consumer Specialty Products Association, a national trade association whose member companies make consumer products such as ant traps, disinfectants, soaps, and detergents. Today I'm here representing FPIC, the Formulated Products Industry Coalition. As stated in our June and September presentations, our unique industry coalition of 15 trade associations was formed in 2001 when the Food and Drugs Act became subject to CEPA.

What do FPIC member companies do? They provide food, personal care products, household cleaners, cosmetics, medical devices, and pharmaceuticals to Canadians. We represent over 750 member companies, and we're a $66-billion-a-year industry, employing 375,000 Canadians. I have provided a list of the associations in our coalition to the clerk in both official languages for your consideration.

As background for our issue--and I'm going to try to capture this as quickly as I can--substances and food in the Food and Drugs Act products are captured under CEPA. Why? In 1999, parliamentarians requested that CEPA be the safety net for all environmental assessments, which includes a health assessment of substances.

In section 81 of the act there is a requirement for other acts that have pre-market assessments to meet or exceed CEPA's environmental assessments. Other acts had two years to meet that requirement, and if they did, they were scheduled for exemption under CEPA. If they did not meet it, then CEPA would be the act to govern environmental assessments, and that's under the new substances notification regulations. Other pre-market pieces of legislation, such as the Seeds Act, the Fertilizers Act, and the Pest Control Products Act, meet CEPA's requirements and were scheduled for exemption. But the Food and Drugs Act did not meet the requirements of CEPA, and therefore environmental substances in Food and Drugs Act products are subject to CEPA's regulations.

We've been working under this regime for the past five years, and we believe CEPA is the most appropriate legislative authority for these substances. Although our member companies have been subject to rigorous pre-market assessments and/or notifications under the Food and Drugs Act, being subject to CEPA was new and challenging. Despite the learning curve, FPIC has recognized that CEPA's systems and regulations provide predictable, rigorous submission reviews to member companies and protection to Canadians and their environment.

So why do we need a change to CEPA and why are we here again today? When the Food and Drugs Act substances were captured under CEPA, it left in limbo a list of approximately 9,000 substances that have been used safely and effectively by Canadians for almost 20 years. These substances are in limbo because they're considered new, not existing under the act, and this needs to be remedied. I'll refer to the 9,000 substances as the “in commerce list”. Substances on this list are such things as pharmaceutical actives, cosmetic ingredients such as extracts, surfactants, food colouring, flavourings, lard, starch, kiwi essence, oil of lemon, etc.

We ask the committee to recommend to Parliament the following: acknowledgement of the in commerce list as a list of existing substances under the law by creating a provision in CEPA to recognize them as such. Why? Existing substances is a practical way to go. The substances and the products have provided and continue to provide benefits to Canadians. They have been in commerce for almost 20 years, and clearly they're not new, but existing.

Since these substances have had pre-market assessment and/or notifications, they need some form of environmental assessment. To ensure this happens, we're suggesting that the government categorize and prioritize the in commerce list, and then if needed, provide screening-level risk assessments, just like the completion of the first phase of the categorization and screening of the domestic substances program.

Key sections of the act for which we're looking for amendments are sections 66, 73, 74, and 81. That was what we tabled to the committee in September as the first place to start with respect to amending the legislation. I have submitted those sections to the clerk.

Another key issue for FPIC, and our second issue for the committee's recommendation, is the use and the meaning of “toxic” in the CEPA legislation. We ask the committee to consider removing the word “toxic” so that there is clarity and understanding with respect to how substances are assessed and managed under the act. If the risk assessment of a substance meets the definition, it's placed on schedule 1 and then some type of management for that particular use will be evoked. As stated in our May submission, the challenge has been around the misunderstanding of the term “toxic”. It's our belief that Canadians, regulators, and non-governmental organizations interpret CEPA toxic substances as being intrinsically toxic.

We have provided some examples. CFCs, which destroy the atmospheric ozone, have been used in the past in asthma inhalers.

Ammonia, which I know the committee has had a great deal of discussion about, is also on schedule 1, and carbon dioxide is on schedule 1. It was put there so that greenhouse gases could be managed, but it's not intrinsically toxic.

To support this issue of misinformation and miscommunication, we have provided two examples to the committee of how the term “toxic” has been misinterpreted. One was from an advocacy group that lists on a website all the substances on schedule 1 as being toxic and not to be used. The first on their list, of course, is ammonia, which they say is used in glass cleaner and should be avoided. The second example is from the B.C. Buildings Corporation Cleaning Management, which cites that all substances that are on schedule 1 should not be in any products.

The CEPA toxic issue is not new. The Canadian Council of Ministers of the Environment, at a previous environment committee, also recognized the issue and asked for change.

Since this review could make this happen, we've requested that the committee again remove the word “toxic” from the legislation. We're suggesting wording that was proposed in the last budget bill, which was Bill C-43, section 15. The change would leave the definition of toxic exactly the same in section 64, but the title of the section would be changed to “assessment and management of substances”. Since Bill C-30 has been tabled, it is our interpretation that the government doesn't need the word “toxic” to regulate, since they're taking regulatory action on the substances under the new definition of air pollutant. So calling section 64 “the assessment and management of substances” accurately reflects what CEPA does.

As well, in our previous testimony we also challenged the committee and the government to provide effective communications around the results of categorization. On Friday, the government delivered a comprehensive program for substance management in Canada. It builds upon the current rigorous science-based regulatory regime. There is a website that's available--chemicalsubstances.gc.ca. We believe this is a really good opportunity for Canadians to review what the government is doing with respect to substance management.

I think all MPs should be pleased with the result of categorization and the next phase. I don't believe the CSDSL, the program, is any part of that effort. It was members of this committee who included the CSDSL requirement in the last review of CEPA. We're now leading the world in how substances are being reviewed and managed. I think that's something we should all take credit for. It's a very good initiative.

Again, for us the challenge is communication. I know that some of the substances that have been talked about have been noted in the newspaper, in the media reports. For example, PFOS has been cited as one of the things that needs to be phased out. It's been targeted as something that's in consumer products—for example, in windshield wiper fluid. PFOS is not in windshield wiper fluid. The government has on their website a very good explanation of what PFOS is in, how they have reduced the use of that, and the amount of PFOS that's actually in Canada. This can be found at chemicalsubstances.gc.ca.

In summary, I'd just like to say that it's been a pleasure working with all of you over the past six months. We believe this process has been a very open and transparent review of a very important piece of legislation. We would ask that you take on our challenges and provide the recommendations to Parliament to amend the legislation. Our collective priority, of course, is to ensure the protection of Canadians and their environment.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you, Ms. Coombs.

That was eight minutes and thirty-nine seconds. We will have a prize for the person who goes the shortest. I should have told you that in advance.

Mr. Gordon Lloyd, please.

[Gordon Lloyd, Vice-President, Technical Affairs, Canadian Chemical Producers' Association]

Thank you, Mr. Chairman. I'll see if I can beat that, but I would like to know what the prize is.

My thanks for the opportunity to appear before the committee in this wrap-up session. There are four points I'll raise, all of which have been raised in testimony before with you.

On the first point, on December 1, CCPA wrote to Minister Ambrose, and we copied the committee with that letter. In that letter we recommended that there are three critical amendments that are in Bill C-30 that we think should be recommended and made to CEPA now, as part of this committee's review, and not get caught up in the debate that we think is going to be long and protracted and political on Bill C-30.

Those specific amendments related to, first, improving the equivalency provisions in CEPA's section 10, to support working more effectively in partnership with the provinces; secondly, improving section 330 to be able to deal with different air sheds differently, for example, depending on whether or not Canada-wide standards requirements are met in an air shed; and thirdly, improving CEPA's section 46 to allow for independent verification of reporting.

In my notes I've attached specific amendments out of Bill C-30 that we recommended that this committee recommend be made in the CEPA review. I think the benefits of these amendments are that they would provide an improved basis in CEPA to support managing greenhouse gases and air pollutants and would be able to do so probably more quickly than doing this through Bill C-30; that they'd be a step forward in the federal government working more effectively in partnership mode with the provinces, and I think that's important in all areas, not just climate change and air pollutants; that they'd also improve federal flexibility in dealing with different situations in different provinces, which I think is important in our federal-provincial jurisdictional system; and that they'd also improve public confidence in reporting.

My second point relates to virtual elimination. I think in the round table discussion on virtual elimination there was actually general consensus by all parties, even the government representatives who got involved in the discussion, on one point--and I hope that's picked up in the report from the committee--that virtual elimination and its associated requirements for establishing limits of quantification don't really make sense for trace contaminant levels of substances in products. There are other sections in CEPA that can be used to deal with that and that would make more sense to deal with them there, not under virtual elimination.

I think that consensus emerged for a number of reasons, but they included the fact that it's technically difficult to establish LOQs for contaminants in products; the fact that there are other powers in CEPA that could be used to deal with this issue more effectively in section 93; and also that we should try to have better consistency with the Stockholm Convention on POPs.

CCPA suggested specific language to fix that problem in what we tabled at that round table. Again, that language is attached in my notes. Although there was agreement I think by all with the problem and our statement, some felt that our language wasn't the best solution, and that's quite probably true. What we would suggest is that this committee recommend that the government use other provisions in the virtual elimination for contaminants and products and figure out what language their lawyers should recommend to incorporate in the act for that. They might want to use CCPA's suggestion as a starting point, but I imagine they'll be able to do better than we did.

My third point concerns looking for a possible compromise solution on the issue of “toxic” stigma. Industry raised a number of concerns--my association did, as did Shannon, who just outlined a few of them--about the reality of this problem. There were others who raised concerns about the constitutional risks involved in changing the legislation. Our recommendation was at the time, and still is, to remove the “toxic” term from the act, particularly in the operational provisions in part 5, and replace “toxic” with “substance that meets the criteria of section 64”, which is language that government lawyers seem to previously have thought was acceptable in the previous government's budget bill. But we do recognize that there were concerns that this could create some risk to the validity of the legislation.

We still support our original recommendation. We think our stigma concerns are real, and we note that those who thought there were risks did agree with us that, in the end, it was their bottom line also that the legislation would remain valid. But if it isn't acceptable to the committee to change the “toxic” language as we've recommended, then I think something else the committee should recommend in its report is something that I believe there was a lot of consensus around from all parties, and that's for the government to have to provide more context when a substance is listed on schedule 1 as toxic.

Sometimes listing might mean not using the substance at all. If that's the case, it should be clear. Other times, when risk management objectives or toxics are narrower, the scheduling process should also make that clear. The scheduling process, the listing process, should provide some context. There's a big difference between putting something on schedule I to mean, do not use the substance, versus, in other cases, to mean, manage the use of the substance to manage the risk that the risk assessment identifies. That's all jumbled into one and should be sorted out by more context being added.

My fourth and final point is to modernize the act so that, like Australia, Canada is better equipped to recognize positive assessments of other jurisdictions. The committee should recommend adding wording to the act to allow Environment Canada and Health Canada to benefit from assessments conducted by other countries to the degree the department believes appropriate, up to and including full acceptance of the assessment.

One point that I won't mention, but I think should be included in your report, is the point I made in the discussion a week or two ago on tools. We recommended the committee ask government to consider adding some specific clauses to the act that promote considering the use of industry responsibility programs such as Responsible Care, but within an overall regulatory framework. From the discussion with the committee, I think it's pretty clear those recommendations aren't likely to be part of your report.

I think the smart regulation report was right. Despite the fact that these kinds of changes are needed, there doesn't seem to be the political will, and I think that was evident in the discussion here, to go forward with them. I think that lack of endorsement for the approach of supporting industry responsibility programs is disappointing. Supporting them would assist industry to be partners with government when companies show leadership and high performance. I would encourage differentiating between companies that do show high performance and those that don't. Hopefully the discussion will revisit that today, and my conclusion that you're not going to have that in your report will be revisited.

Finally, I think most of the testimony, if not all, stressed that the act needed to be fine-tuned, not fundamentally changed and rewritten, as it was in CEPA 1999. We certainly support that approach, and we think it's particularly important to maintain the strong foundation for the categorization architecture and the ongoing assessments that will be the second phase of that project. We are a world leader in this. It would be wrong to change the foundation that this world leadership was built on and would cause an awful lot of confusion.

Thank you for the opportunity of hearing all of these discussions, and I look forward to a discussion today and to your report.

Did I beat Shannon?

[The Chair, Conservative, Bob Mills]

Yes, you're at 7 minutes and 47 seconds.

Anne Mitchell, please.

[Anne Mitchell, Executive Director, Canadian Institute for Environmental Law and Policy]

Thank you very much, Mr. Chair and committee members, for inviting us here today.

CIELAP, for those who don't know, is an independent think tank that has been providing advice to the federal government for over 30 years. You have copies of our submission. We have a long history of being involved with the Canadian Environmental Protection Act.

We're going to look at two topics today related to vulnerable populations and ecosystems. They're on the impacts of pharmaceuticals in water and innovative technologies such as biotechnologies and nanotechnology. These happen to be two of the research areas of CIELAP's work right now.

We're going to split this in two, so there's going to be a coming up and down. My colleague, Maureen Carter-Whitney, who is research director at CIELAP, is going to talk about the pharmaceutical issue, and if there's time, I'm going to say a couple of words about biotechnology.

Thank you.

[Maureen Carter-Whitney, Research Director, Canadian Institute for Environmental Law and Policy]

Thank you.

The precautionary principle is fundamental to protecting the health of children and other vulnerable populations and vulnerable ecosystems.

CEPA requires the government to make sure that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. It is important that CEPA states the precautionary principle, but it must be made operational in a meaningful way to protect vulnerable populations and ecosystems.

Earlier this year, CIELAP released a report called “There is no 'Away' - Pharmaceuticals, Personal Care Products, and Endocrine-Disrupting Substances: Emerging Contaminants Detected in Water”. Pharmaceuticals and chemicals in personal care products are increasingly being used by both humans and animals. These contaminants find their way into water in four ways: substances used in manufacturing are discharged into waste water; unused medications, cleansers, and personal care products like shampoos are washed away with waste water; drugs are excreted into the waste water stream directly; and discarded or excreted substances are carried in runoff from private septic systems, treatment facilities, and from animal waste and sewage sludge spread on farm fields.

Testing in the U.S. has found emerging contaminants virtually everywhere--in surface water, groundwater, and stream-bed sediments. There's not been as much testing in Canada, but one study of samples near sewage treatment plants in 14 Canadian cities found a number of pharmaceutical products present.

Increased use of antibiotics by humans and as growth promoters in farm animals has led to increased concerns about antimicrobial resistance. And there's also concern that exposure to certain environmental contaminants may interfere with the human endocrine system.

Endocrine-disrupting substances, or EDSs, may increase or decrease hormonal activity that controls many of the body's functions, including growth, development, and reproduction. EDSs are found in pharmaceuticals such as birth control pills, industrial chemicals such as PCBs, metals and plasticizers, fragrances and preservatives in cleaning and personal care products, contaminants such as dioxins, and pesticides such as the insect repellant DEET.

In humans and other large mammals, the health effects of EDSs are not yet well understood, but in fish, birds, and other wildlife, effects have included reproductive impairment, reproductive failure, deformities, and feminization. The incidence of cancers linked to the presence of excess hormones--breast, testicular, and prostate cancers--has recently risen despite the fact that overall cancer rates have been declining. Many more animal studies, along with clinical research and statistical trends and patterns, are needed to establish consensus about the human health impacts of EDSs.

History has shown that the potential hazards from emerging contaminants are not always initially clear. Thalidomide was prescribed as a tranquilizer or a sleeping pill during pregnancy before it was discovered in 1962 that it caused dramatic birth defects in babies, such as missing or truncated limbs. In 1971, a link was established between the synthetic hormone DES, taken during pregnancy to prevent miscarriage, and its effects on female children that included a rare form of cancer, pregnancy complications, and infertility.

These examples teach important lessons related to endocrine disruption and the issue of emerging contaminants. Scientists realized that some effects of these exposures were delayed and would not show up until the fetus was a young adult. Also, some extremely small doses of hormones had devastating impacts. A June 2006 study conducted by Environmental Defence tested seven children and six adults and found 38 chemicals that can cause reproductive disorders and harm the development of children, 38 suspected cancer-causing chemicals, and 23 chemicals that can disrupt the hormone system.

In our submission, we make a number of recommendations. The categorization criteria in subsection 73(1) of CEPA needs to be updated to require that domestic substances list substances be considered inherently toxic and identified for further action if they are known to be carcinogenic and/or known to be capable of reproductive or neuro-developmental toxicity. Once identified, these substances should be targeted for virtual elimination.

CEPA should be amended to require consumer product warning labels notifying the public if a product contains substances that are known to be carcinogenic or toxic to human reproduction and development.

CEPA should include explicit language directing that vulnerable populations be taken into account in identifying substances for assessment and in conducting assessments.

The government should also phase out antibiotics and hormones as growth promoters for farm animals as a precautionary approach to health and ecological concerns such as antimicrobial resistance and EDSs.

This is clearly the time for the Government of Canada to move forward in regulating these emerging contaminants, as the last week has shown. Last Friday the government announced a new chemicals management plan to regulate chemicals harmful to human health and the environment. Proposed measures include establishment of the virtual elimination list under CEPA, addition of the first substances to that list, and development of solutions for the proper disposal of 9,000 chemicals such as pharmaceuticals and personal care products.

Yesterday a letter signed by approximately 700 environmental scientists was released, urging that the current parliamentary review of CEPA be used to better protect Canadians and the environment from the harmful effects of pollution, noting particularly the vulnerability of populations such as children and infants. The letter states that in any scientific field, uncertainty may remain regarding a particular chemical and whether it causes a particular health or environmental effect. However, the available information warrants a precautionary approach in our system for assessing and managing potentially harmful substances. The letter notes that CEPA's regulatory provisions provide the authority to regulate consumer products, but that the government generally does not use CEPA for this purpose. It is time to use CEPA to do this.

[Anne Mitchell]

Do I have a minute?

[The Chair, Conservative, Bob Mills]

You have three minutes.

[Anne Mitchell]

Thank you very much.

I'm going to talk about biotechnologies. In 1994, CIELAP proposed that CEPA include a separate part on biotechnologies. The government's response was part 6 of CEPA, and part 6 has been, in our view, underused. CEPA is the only federal legislation that provides clear authority for the regulation of biotechnologies, and the government in fact should be using part 6 of CEPA for these new technologies.

Modern biotechnology can involve the transfer of genetic materials between species. This does not occur routinely in nature. The past few years have witnessed the rapid commercialization of agricultural biotechnology in Canada. Modern biotechnology is now moving quickly into new fields. We have GE-fish, animals, and trees. At the same time, there's a growing body of evidence emerging regarding the potentially negative environmental and health impacts of these products. Concerns have been raised about the ability of the current regulatory system to in fact address those issues. Genetically modified organisms used in the open field cannot effectively be contained and pose certain ecological risks and even economic risks for nearby farmers.

CIELAP has been calling for a comprehensive policy framework for biotech since 1985. The elements of such a framework are in our submission. There is an opportunity here for the government to show leadership and to ensure that Environment Canada uses its powers under CEPA to establish a national regulatory regime to address the environmental risks of biotech.

I have a couple of words about others. There is the restriction technologies, or terminator technology. These we feel should be banned in Canada because pollen from terminator plants could contaminate and kill seeds of other nearby plants. Another quickly emerging technology is nanotechnology, manipulating materials at the scale of atoms and molecules. We feel that CEPA should also be used to regulate the development and use of this technology.

Thank you, Mr. Chair, and thank you for your indulgence.

[The Chair, Conservative, Bob Mills]

Thank you very much.

We'll go on to two individual presentations now.

Mr. Schwarcz, please.

[Dr. Joe Schwarcz, McGill University, As an Individual]

Thank you. I'll direct your attention to the screen, please. Don't look at me; look there.

I direct McGill University's Office for Science and Society. Our mandate is to inform the public on scientific matters and to demystify these for them, because we like to think that the moment our students leave our gates is not the moment their education stops.

As a university, we have a responsibility to the public to provide information, and I thought it would be interesting to share with you some of the methodologies we use in the context you're interested in, because there is massive confusion out there in the public. I know this because I do a weekly radio show and do public lectures and I'm very closely connected to the pulse of the public.

The public fears all kinds of things. They're told one day to eat as many fish as they can because of the omega-3 fats, and then they find out that they may be contaminated with PCBs. We tell them to eat as many fruits as possible, but then there are concerns about the pesticide residues. Some people then tell them to wash these toxins out of their bodies by drinking lots of water, and then they learn that the water has trihalomethanes in it, so they filter the water with these filter jugs. Then they discover that the plastic is made of polycarbonate, which leaches bisphenol A into the water, and they get all concerned because they've heard that this is an environmental estrogen and may be responsible for precocious puberty in young girls, so they can't even drink the water.

They really start to sweat things, but then they find out they can't even use an antiperspirant because it is contaminated with parabens, which are used as a preservative. If they can't make themselves smell good like that, well, then they think maybe they can use a perfume or a cologne and discover that there are phthalates in there. At this point they really get concerned because they've heard stories that phthalates interfere with the anal-genital distance in rats, and that of course is a concern to everyone.

There is real worry out there. There is virtual panic, especially about the chemicals that are used in everyday life. These days, of course, we have learned a great deal about how these chemicals appear in our blood, but just because something is found in our blood doesn't mean it is necessarily harmful; it just means that the analytical chemists are extremely good at detecting things down to the level of parts per trillion.

Sometimes, of course, there is a need to take action because of links that have been made between these contaminants and health. For example, 1,4-dichlorobenzene is very commonly found in mothballs and in some air fresheners. It turns out that about 95% of the public has detectable traces of these, and we also know that they have been linked to impaired lung function. There may be a reason here to take action, but that's quite different from some of the other issues out there.

An example is phthalates, which of course you have heard a great deal about. These substances are used as plastifiers to soften plastics, particularly PVC. Well, there are a great many phthalates out there. This is not just one compound, it's a family of compounds, and you can't look at them as if they were all identical.

For example, diethylhexyl phthalate has received a lot of adverse publicity, much of it justified, because in this case we do have issues. This is where this anal-genital distance business comes in. It has been shown in test animals. It has been shown in male rats, for example, that the distance is altered. This is because it blocks the synthesis of testosterone, and this effect has been scientifically shown.

What does it mean to us as humans? Well, I think it does mean that we have to be very careful about the kinds of plastics we use with very young children and premature babies, because some of the phthalates may be leaching out into the body. There I think it is a cause for action, and perhaps even in the case of toys, because children put these into their mouths. There may be an issue, but the industry has looked at that and has replaced the DEHP with diisononyl phthalate, a different phthalate that does not have those issues associated with it, and yet the public does not make that kind of distinction, does not realize that these chemicals can be dramatically different.

Also dramatically different is the butyl phthalate used in nail polish or the phthalates used in shower curtains, for example--but again, people start fearing their shower curtains, because they've heard stories about what may happen in rats from DEHP, which is a completely different story.

Dr. Shanna Swan at the University of Rochester has done some human experiments and has discovered in fact that in male babies there is an anal-genital distance difference that depends on how many phthalates there are in the mother's blood. However, it is important to realize that there have been no health consequences noted other than that measurement.

Parabens, another set of chemicals that have been in the news a great deal, are used at a very small concentration as preservatives in a variety of cosmetics products. Again, it's a whole class of molecules, depending on just what kind of substitution pattern we have. But once more, the public doesn't look at it like that; everything is all dumped into one category.

Eyebrows have been raised about this issue, particularly because of the work of Dr. Philippa Darbre at the University of Reading. She measured levels of phthalates in breast cancer tissue, discovered their presence, and linked this to various kinds of products, especially deodorants. The fact is that in this study, which got a lot of publicity, she had no controls at all, so she didn't know whether or not healthy tissue also had parabens--which is very likely, because it's a ubiquitous substance--and she never determined whether there was any connection to antiperspirants. She never even asked her patients if they used antiperspirants.

Furthermore, these particular compounds are far less estrogenic than many others that occur in the environment, including things that are found in soybeans or tofu, so again it has to be looked at in the proper perspective.

As for the parabens we are so concerned about in deodorants, the truth is that very few antiperspirants or deodorants even use these things. They're just not in there. Of course, we need to do testing, absolutely, but we also need to have public education so that people can understand the results of these tests, because if they don't, it leads to all kinds of unnecessary worries and to quackery. Products are sold on the Internet and elsewhere that claim to remove toxins from the body: you just put your feet in there and your toxins are sucked out. People are paying $700 for this, and they have visual evidence, because 30 seconds after putting their feet in there, it turns dark; supposedly the toxins have come out. It is a totally quack device based on an iron electrode that forms iron oxide or rust, but people are buying this for $700 because they're convinced of the toxins in their bodies.

The word “chemical”, of course, should not equate to toxic. Chemicals are not good or bad. They have no morality; it's people who do.

The effects of these things depend on the molecular structure of the specific substance, not on whether it's synthetic or natural. High-dose animal studies do not necessarily reflect human risk, and there are some very good examples of animals reacting very differently. We love chocolate and eat it a great deal, but of course you cannot feed it to dogs, so the dog would not be a good model to test toxicity of chocolate.

Paracelsus told us 500 years ago, “sola dosis facit venenum”, meaning “only the dose makes the poison”. That is the fundamental tenet of toxicology. Vitamin A in small doses is very beneficial, but eaten in large doses--as Arctic explorers have done when they consumed the livers of polar bears--it is fatal. Vitamin A: is it good or bad? It all depends on the amount, and so it is with a large variety of substances that you are interested in.

What we really need is data, but it's not enough. We also need to communicate the data and interpret it to the public. Allaying public fears, which I think is one of the responsibilities of the government, has to go hand in hand with legislation like CEPA and the proper communication of what that legislation means to the public. I think the government has done a great thing in moving to evaluate some of the 23,000 consumer products out there, but it's also very important to communicate to the public that the government knows what it is doing--that all of this is being done in a scientific way--so that we can regain the confidence of the public, not only by adhering to CEPA but also by communicating what CEPA is to the public.

Thanks very much for giving me the chance to inform you of our efforts at the McGill Office for Science and Society.

[The Chair, Conservative, Bob Mills]

Thank you very much, Mr. Schwarcz. I think you probably win the entertainment award this morning. That was very well done.

We'll go on to Ms. Krantzberg.

[Dr. Gail Krantzberg, McMaster University, As an Individual]

Mr. Chairman, I'd like to state that it's unfair to have to follow such an entertaining person.

Thank you, Chairman and committee members, for this opportunity to testify before you on CEPA. I'll only cover two basic topics. I want to begin my remarks with reference to risk and precaution, and then talk about the Great Lakes perspective.

Robert Constanza said:

[d]efining sustainability is actually quite easy: a sustainable system is one that survives for some specified (non infinite) time. The problem is that one knows one has a sustainable system only after the fact. Thus, what usually pass for definitions of sustainability are actually predictions of what set of conditions will actually lead to a sustainable system.

Environmental regulations purportedly are designed to ensure that a set of conditions exist to enable ecosystems to be sustainable and protective of public well-being. We use science to predict the outcome of our perturbations on biological, physical, or chemical integrity of the systems, and then regulate on that basis.

The science regarding chemical perturbations has typically been incorporated into risk assessment methodologies to predict outcomes of substances in various environmental media, particularly cancer outcomes. Risk assessment, however, is undependable in protecting living things because it asks whether the possibility of or the risk of damage to the environment and public health is sufficiently large to warrant government intervention.

Risk assessment and risk characterization ask, “How resilient is the environment? How much harm can we bear?” The question of whether harm is sufficiently large to regulate is a matter of ethics, not a matter of science, so portraying risk assessment as a scientific method is not entirely accurate.

For CEPA, the outcome of risk assessment is to manage risk, often by communicating risk rather than acting on the precautionary principle and preventing risk. Further, the inherent complexities and limitations of evaluating chemicals in isolation from one another, in addition to the scientific uncertainty of proving causal relationships between specific chemicals and corresponding health effects, results in a risk management approach that is again undependable.

I'll expand on an alternative or at least complementary approach, that being the precautionary principle as it relates to persistent toxic substances. You've heard of Dr. Schindler, whose recent letter to the Prime Minister makes the case for a precautionary approach. Further, the IJC, the International Joint Commission, in the 1990s, asserted that persistent toxic substances cannot be safely regulated. These chemicals cause disease, death, behavioural abnormalities, cancer, genetic mutations, physiological or reproductive malfunctions, and physical deformities in organisms or offspring, or they can become poisonous after concentrating in the food chain. So, members, I emphasize that cancer is not the only end point of concern, and that cancer is also an end point that takes decades to emerge and its etiology much longer to determine. What does risk assessment do about these other types of health outcomes? Not very much.

The precautionary principle, as defined by the federal government in the CEPA, is

[a]n internationally recognized principle for action that states where there are threats of serious or irreversible damage, scientific uncertainty shall not be used to postpone cost-effective measures to prevent environmental degradation.

Risk assessment is a dominant environmental decision-making tool in an industrial model of the world. The model favours global economic competitiveness. While this may very well be a defensible model, it makes it plain that risk assessment is therefore not the appropriate tool to protect ecological integrity and public health. It may be useful for predicting cancer, but it's a clumsy, blunt instrument for predicting and circumventing sub-lethal, insidious health effects, or for regulating emerging technologies and processes that also have large spatial and temporal significance.

Finally, most risk assessment and risk management methodologies consider the greater the persistence of a chemical, the greater its potential risk to environment and human health. CEPA needs to consider that some pollutants arise from substances that are in use on a continual basis, like high-production-volume chemicals such as personal care products and pharmaceuticals. These are continually reintroduced into the environment and, as a consequence, the supply continues to be replenished. Therefore, the persistence is virtual, and the notion of persistence needs to be revisited in the act.

My first recommendation to the committee, for Parliament, is for CEPA to actively apply the precautionary principle, critically address the shortcomings of risk assessment and risk management, and learn from other jurisdictions that have taken action to ban substances in the face of uncertainty. A simple example is the banning of certain polybrominated fire retardants by the EU.

Next, I raise the importance of a functional CEPA to the Canada–Ontario Agreement Respecting the Great Lakes Basin Ecosystem and the Great Lakes Water Quality Agreement.

I remind the members that the Canada–Ontario agreement, or COA, is a federal–provincial agreement aimed at enhancing and protecting the Great Lakes basin ecosystem. The agreement outlines how the two governments will cooperate and coordinate efforts regarding Great Lakes basin management. COA was first signed in 1971, in anticipation of the Great Lakes Water Quality Agreement, and there have been seven COAs to present.

Eight federal departments and three provincial ministries signed the most recent COA in 2002, and it expires in 2007. Canada has not signalled to Ontario its decision to extend the agreement, revise the agreement, or renegotiate the agreement. This is a tremendous cause for concern, because within COA is a “harmful pollutants” annex with the goal, stated by the governments of Canada and Ontario, to virtually eliminate harmful pollutants in the Great Lakes. This job has not been done. Chemicals and commerce still threaten the health and integrity of the Great Lakes regime.

The principles of the 2002 COA reflect contemporary agreements and research on environment protection and management that have not been overtly considered. My submission contains those principles. I just want to mention a few: pollution reduction; control at the source; the precautionary principle; prevention; to anticipate and prevent, it being much more economical and cost-effective than to remediate; and public and stakeholder participation.

Will CEPA successfully invoke these principles in light of the current reliance on risk assessment and risk communication? Will COA continue and embody and embolden CEPA? We in the Great Lakes region depend on you to help make this happen.

Also current in the Great Lakes regime is the ongoing government review of the Great Lakes Water Quality Agreement. During this review, many have called out the increasing importance to examine current science, policy, and emerging concepts in ecosystem protection and the protection of human health. CEPA is highly relevant to this review, as it can set Canada's tone for mitigating chemical insults, for which the Great Lakes Water Quality Agreement contains many commitments.

The Great Lakes are situated within a huge watershed and have a large surface area and retention times of years to nearly centuries. The Great Lakes are exquisitely sensitive to persistent toxic substances. I reaffirm a continuing call for special provisions in CEPA to accelerate aggressive action on chemical pollutants in the Great Lakes region, home to one-third of Canadians. The area generates two-thirds of Canada's manufacturing output, for which natural resource protection is essential.

We in the Great Lakes region ask you to urge our government to take this review seriously; to revise or rewrite the Great Lakes Water Quality Agreement to invoke strong, CEPA-based Great Lakes provisions for chemical management; and to push our U.S. colleagues to step up their commitments and implement their Great Lakes regional collaboration. We ask that this be done by providing the minister with the power to designate a region as a significant area, given that the region is particularly environmentally vulnerable to the effects of toxic substances and/or that it generates a particularly large volume of toxic substances into the environment. Following the designation of the Great Lakes region as a significant area, we ask you to urge that the minister be given powers to establish monitoring and research priorities for particular substances and to identify the priorities to move toward the virtual elimination of the inputs of these priority substances.

To summarize, I recommend that the precautionary principle of CEPA not only be upheld but applied vigorously and that risk assessment be tempered by that principle; and that special provisions within CEPA are included to provide the minister power to designate the Great Lakes a significant area, with the purpose of accelerating aggressive action to curb chemical insults in the region and to negotiate stronger Great Lakes commitments with Ontario and the United States.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you very much.

We'll now go to Mr. Aaron Freeman.

[Aaron Freeman, Environmental Defence Canada, PollutionWatch]

Thank you, Mr. Chair. To both you and members of the committee, I'd like to commend the work that the committee has done on CEPA so far. I think that work has been very comprehensive. I very much appreciate the efforts you've made to ensure that a broad range of perspectives is both heard and considered.

Along with my colleague, Dr. Kapil Khatter, I'd like to touch briefly on some of our key recommendations, gleaning from what some of the other organizations and individuals have said about them. We'll only touch on a few of these recommendations, with a more comprehensive list already having been submitted to the clerk and circulated.

As previously mentioned, in the last couple of days a letter from 721 Canadian scientists was tabled with this committee. That letter, which includes some of Canada's best-known scientific minds, endorses each of the recommendations that Dr. Khatter and I will be talking about.

In addition, I'd like to table with the committee another letter from a group of a dozen Canadian law professors who have examined this issue and supported these recommendations. They also recommend removing the barriers to citizen participation in CEPA. These barriers are so onerous that CEPA's citizen action provisions have never been used in the history of the act. We've provided this letter to the clerk, as well as a summary of each major recommendation, with a list of a very broad cross-section of organizations that support each one.

I'd like to talk about two of the recommendations, my colleague will talk about two more, and then I'd like to address briefly two other issues that have arisen.

The first recommendation I'd like to talk about has already been discussed briefly—that is, establishing significant areas for regions like the Great Lakes. CEPA explicitly recognizes the importance of an ecosystem-based approach, but there are no provisions requiring the government to address vulnerable ecosystems in Canada. The Great Lakes-St. Lawrence basin is where nearly half of the country's toxic air pollution is generated; 58% of the facilities that report to the national pollutant release inventory are located in the Great Lakes-St. Lawrence basin. We recommend that a new part of CEPA should be created to recognize significant areas that are environmentally important because they are large emitters of pollution or because they're particularly threatened by pollution. This part would then be used to recognize the need to address Great Lakes-St. Lawrence basin issues.

The second issue I'd like to address is the authority to regulate consumer products. CEPA has this authority, but the government has generally used the Hazardous Products Act instead. The HPA takes a product-based rather than a substance-based approach that is inadequate for addressing the sources and avenues of toxic chemicals in our environment. The poor track record on regulating lead in consumer products is an excellent example that was discussed yesterday.

CEPA should be the preferred authority to regulate toxic substances in consumer products, with a prohibition on the use of toxic substances in products and controlling their release where outright prohibition is impossible. Exceptions would be made where there are no reasonable alternatives or in cases where the substances would not be considered toxic when used in a consumer product. An obvious example would be carbon dioxide.

It's worth noting that the government's new chemicals management plan recognizes that consumer products are a major source of toxic substances that we should be dealing with in the regulatory system. It's time to ensure that our overarching pollution law is equipped to deal with this.

I should also mention that in addition to the scientists' letter and the law professors' letter, many organizations support this recommendation. These include consumer organizations, such as Option consommateurs, l'Union des consommateurs, the Consumers Council of Canada, services of the Alberta Council on Aging, and others; health organizations, such as the Canadian Cancer Society and the Ontario Public Health Association; as well as many other organizations that are in the document that we've just tabled.

I'd like to pass it on to my colleague, and I'll return to address two other issues.

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

Thank you, Mr. Chair.

Let me just fill in to cover three of the recommendations we've brought to the committee. One was touched on, and that is virtual elimination. CEPA recognizes that persistent and bioaccumulative toxic substances need to be virtually eliminated. Only one substance to date has been put on the list. The need to determine a minimum level of quantification is one of the barriers to that problem.

We've been recommending that CEPA needs a definition of virtual elimination that is consistent with the Great Lakes water quality agreement; that virtual elimination should include the cessation of intentional production use, release, export distribution, and import; and that it needs to be revised. We don't necessarily need a precise minimum level of quantification. We support the idea that elimination could be done in other ways, for instance, using the prohibition regulations. But we emphasize that these substances need to be eliminated or prohibited, not just risk managed.

Another issue we've been presenting is the need to change the burden of proof. There is little data from the majority of what we call the “existing substances”--the 23,000 substances that were in commerce up to 1986. In fact, about 10% of them have experimental data. For these substances, the onus is on the government to prove they are harmful--before taking regulatory action. That kind of onus is something we're moving away from. The Pest Control Products Act, for instance, places the onus on manufacturers to demonstrate relative safety before products can be on the market.

What we're looking for is burden of proof language in CEPA that is similar to that of the Pest Control Products Act. There should be a reverse onus, where industry must demonstrate substances and products are safe enough to be used. If there's no data, there should be no market.

Finally, we've also been talking about the need for mandatory timelines. Though parts of the assessment and management process have timelines--relatively loose ones--there are some major gaps. As a result, delays result in years of inaction on substances of concern. The categorization of the domestic substance list that was just completed demonstrates how effective deadlines can be in ensuring that substances are dealt with.

The solution is that CEPA should have mandatory timelines at every stage of the assessment and management to ensure that potentially harmful substances are quickly assessed and action is taken to protect our health and the health of our environment. We have circulated a list of our consolidated recommendations. In there are the details of our proposed timelines.

As Mr. Freeman talked about, these recommendations have been supported by a number of groups. Please look through the submissions and presentations, including the Canadian Cancer Society, the Canadian Association of Physicians for the Environment, the medical officer of health for Toronto, Peel Public Health, and the scientists' letter and lawyers' letter we talked about.

Thank you.

[Aaron Freeman]

I'd like to briefly address two other issues outside of our formal recommendations that have been raised by the witnesses.

This committee convened two sessions dealing with the term “toxic” in the act. In one of those sessions, I raised concerns that changing the term “toxic” in any way would very likely attract litigation, which would be a costly distraction to administering the act.

Gérard La Forest is the former Supreme Court Justice who wrote the seminal judgment in this area of law. Following my testimony, Justice La Forest wrote a letter, which was tabled in this committee, stating that he agreed with each of my conclusions. In speaking of my testimony, he stated, and I quote:

...you are right in so clearly pointing out the dangers inherent in the proposal in relation to both the international and constitutional issues....

He continued:

I would respectfully commend it to the committee for its most serious consideration.

Again, removing the word “toxic” may, in Justice La Forest's words, “cause confusion in the federal-provincial arena”. In what can only be interpreted as a warning, he noted that “the Supreme Court upheld CEPA by a very narrow majority”.

The other issue I would like to finally address is the proposal to review CEPA every ten years instead of every five years. While a five-year review clause is fairly common, it's especially important to revisit CEPA on a shorter timeframe because of rapid developments in our understanding of pollution in our environment. It's also clear that a five-year review is somewhat of a misnomer.

It was eleven years between the original passage of CEPA in 1988 and the “five-year review” that resulted in changes in 1999. Similarly, it's been more than seven years since the last review. It's unlikely that new legislative provisions stemming from this review will be enforced before 2009. Because of the length of time it takes to prepare and administer a review, the practical reality is that we are currently already operating under a ten-year review framework. Changing the five years to ten in the act will mean that this timeline is extended to fifteen years or more.

Thank you very much.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Freeman.

We'll go on to Michael Teeter, please.

[Michael Teeter, Consultant, Salt Institute of Canada]

Thank you, Chairman.

The Salt Institute has been pleased to be part of this important debate on the review of CEPA. We've attempted to frame our recommendations around a number of public interest themes as follows.

First, CEPA is the cornerstone of Canada's environmental legislative framework and a key component of sustainable development principles, and as such, it should be structured and administered in a way that encourages fast and effective actions to support and improve environmental performance.

Fast and effective environmental improvements require commitment and investment by industry and by governments. CEPA should be structured and administered in a way that encourages effective investments immediately. This means that dialogue and cooperation between and among stakeholders and the government are often critical to success.

In our view, federal regulation is not always the best method to achieve these results, particularly when one understands that federal regulation must flow from schedule 1 listings and is predicated on the Criminal Code constitutional prerogative.

The last framework issue for us is that good science requires independent peer review. Despite what others have said about this, there is no requirement for independent peer review in CEPA.

If the administration and operations of CEPA were structured within this framework, a number of important administrative changes would occur. First, the substance foundation of the statute would have to be modified in theory and practice. Instead of a focus on the substance, there should also be a focus on the human context in which the substance is used.

While categorization, screening, and assessments are taking place, Environment Canada would also be considering such key questions as these.

What are the contexts or behaviours that are creating the environmental problem with respect to the substance?

What is being done now in the interests of improved environmental performance for these substances and contexts, and what actions can we take to accelerate and enhance these positive developments?

What further instruments do we need to achieve improved performance—and when we use the word “instruments”, we mean what kinds of tools does Environment Canada need, whether regulation, whether voluntary instruments, or whatever—and what do we need to do to obtain these instruments? The choice of the instruments will actually often determine the kinds of actions that one would take, because obviously, if voluntary instruments are appropriate or other governments are doing something effective already, then you don't need to go through the regulatory process to achieve those ends, certainly the listing process.

Are there environmental actions that all stakeholders agree on now? If so, how can we accelerate these actions and communicate the benefits of these actions to the public? As we've heard before, there's a great deal of futility in the public and a sense that nothing is being done, when in fact it's not true. So I think the sooner we can communicate the positive things that are actually taking place, the better.

Depending on the substance and the context, the threat of regulation can sometimes be as effective as regulation itself. Use carrot-and-stick principles to get to positive environmental actions sooner. Consider the use of incentives for environmental performance that might drive positive outcomes faster and with wider impact.

A lot of these things that we're talking about here would require a bit of a cultural change in Environment Canada. Rather than simply focusing on us versus them, it would be more a focus of how can we get to things faster by working together, and how can we communicate these benefits more quickly and with more impact? We are also recommending what we consider to be small modifications to CEPA so that we can realize the benefits of the approach we're recommending—and I will summarize from previous presentations as follows.

We're recommending that there be another schedule or listing category in CEPA so that it is possible to differentiate between substances that are “toxic in the ordinary sense”, to use the Supreme Court language, and those that are not. This would allow the government to regulate substances, in context, without confusing the public or damaging trade prospects and international understanding of Canadian products and things like that. This change is entirely consistent with the principles we talked about earlier.

We believe there should be a small change in the definition of substance in section 3 of the statute, so that listing something in context--environments, quantities, and so on--would be much easier. Some people will argue that you don't need to change the statute to achieve this end, but we've heard it from enough expert people in the past that I believe there has to be a small change to the section 3 definition of substance.

If Environment Canada deals with stakeholders in a more contextual framework, we believe there will be positive actions sooner and the reaching of an agreement sooner. We don't believe that stigmatizing consumer products with the word “toxic” should be the subject of the first conversation one has with stakeholders, unless drastic action is necessary under the virtual elimination provisions in the statute.

We also believe that the timelines in CEPA should be changed so that risk management and risk assessment take place concurrently. It's not a big change, but one that I think is consistent with our principles.

As soon as risk management actions are taken, we believe they should be publicized and promoted so that the public understands that meaningful, positive things are being done now. As we heard earlier, I think there's a great deal of misunderstanding, and certainly a perception of futility and a feeling that nobody is doing anything for the environment, so why not just throw up our hands and say, “Why should I do anything?” That's particularly the case with the young people today.

I think the faster we can get to consensus on actions and the faster we can talk about those in a meaningful way to the public, the more they will feel that, “Yes, there are things that people are doing, that our leaders are doing, that industry is doing, and there are things that I can do, too. It's not that futile. It's not that bleak.” Everybody talks about the environment in such bleak terms.

My last recommendation for change in the statute is that there should be a mandatory independent peer review process introduced into the risk assessment part of it. Environment Canada scientists should not be doing the science and managing its oversight at the same time. In our view, there's a conflict of interest. Mandatory independent peer review ensures that good science will drive government decision-making.

Thank you.