Environment Committee on March 20th, 2007

[The Chair, Conservative, Bob Mills]

We have a quorum.

I would just like to review quickly with members what I hope to accomplish.

Obviously we have two private members' bills that we're looking at today: Bill C-298 and Bill C-307. As you can see, we've allocated 45 minutes for each of these bills. So I would like to ask members, if they would agree, to go to five minutes on the questions on the first round instead of the normal ten minutes. That way we can get the maximum number of questions.

Our other question will be that we have now scheduled Bill C-298 from 11 o'clock until 11:45, with the possibly of extending that 15 minutes if necessary, due to the motion already having been dealt with. We'll wait until Mr. McGuinty gets here. Mr. Regan will talk to him; he understands what I'm trying to do.

I will hold you to five minutes. Perhaps we could start with Bill C-298. As you can see, we have witnesses and we have department people here as well. So if we could keep it to five minutes, and I would ask our witnesses as well if they could keep it as short as possible, five minutes ideally, then we will have the maximum time for questions and can get through both these bills.

Perhaps you could begin, Mr. Khatter.

[Dr. Kapil Khatter, Environmental Defence Canada]

Thank you, Chair, committee members.

We don't have much time, so we'll be brief. We're talking today about Bill C-298, which is a bill to virtually eliminate perfluorooctane sulfonate, or PFOS.

The Canadian Environmental Protection Act says that any toxic substance that is mostly due to human activity and is persistent, bioaccumulative, and inherently toxic is supposed to be virtually eliminated. PFOS is extremely persistent and bioaccumulative, more so than even our famous persistent organic pollutants DDT and PCBs. It stays in the environment for decades, and the human body takes over eight years to clear just half of it.

Human studies have found increased rates of bladder cancer, male reproductive cancers, liver cancer, and multiple myeloma. That's in worker studies and in studies of people living around factories using PFOS.

Animal studies have shown that PFOS harms the thymus, the pancreas, the brain, and the immune system. What really alarmed the United States Environmental Protection Agency when they first looked at PFOS was that when they gave PFOS to pregnant rats, it killed the pups, their kids. When they lowered the level of PFOS enough so that the pups survived, many of the grandkids didn't survive, meaning that the majority of the pups' pups died. The EPA found this to be a rare finding, and they found it extremely alarming. At the time, they concluded that

PFOS represents an unacceptable technology that should be eliminated to protect human health and the environment from potentially severe long term consequences.

The United States banned PFOS in 2000, with certain exceptions. Since then, Sweden has called for a global ban, nominating PFOS as a persistent organic pollutant under the Stockholm Convention on Persistent Organic Pollutants, again with exemptions for semi-conductors and photography for the moment.

We were happy in the spring of 2006 to see this private member's bill, six years after the United States banned PFOS. We saw this as an attempt to catch up with our neighbours. Since then, the government has announced its own prohibition, with exemptions, and the government's assessment under CEPA, the Canadian Environmental Protection Act, found PFOS to be persistent and toxic, but not to be bioaccumulative. This is because of the way the regulations for bioaccumulation are written. They didn't anticipate that substances like PFOS would bioaccumulate in new and novel ways, or what we're finding out are new ways.

Even though PFOS is possibly the most bioaccumulative chemical we know, it has been declared not bioaccumulative in Canada. This private member's bill will declare PFOS a candidate for virtual elimination, as it should be as a persistent bioaccumulative and inherently toxic substance.

There is concern about a lack of alternatives in some uses: in making semi-conductors, for certain photography uses, and for chrome and electroplating. These exemptions are found in the proposed prohibition regulations. We think the government should take another serious look at the need for these exceptions, always keeping in mind that health and a healthy environment need to come first. In particular, there should be another look at chrome and electroplating. Half of the platers in Canada don't use PFOS, so it's hard for us to see why the others cannot switch over.

PollutionWatch believes that PFOS should be listed for virtual elimination, as it meets the criteria in real life. What the government needs is more flexibility in how virtual elimination is done. As raised before this committee at the review of the Canadian Environment Protection Act, virtual elimination needs to be fixed. We need to eliminate the level of quantification that is making virtual elimination unworkable.

As well, there should be the option of using prohibition as a tool for virtual elimination, so that we can put something on the virtual elimination list because it's persistent, bioaccumulative, and inherently toxic. The prohibition should be a justifiable way of making that elimination happen. The goal of virtual elimination, after all, is to continuously work towards getting rid of PFOS. In that light, any exemptions to a prohibition need to be temporary.

The objective is to eventually eliminate manufacturer import, use, and release. There is a global movement to do this, as I've said, with Sweden having nominated PFOS to be listed under the Stockholm Convention. Canada should be helping by vocally supporting this nomination internationally and by eliminating PFOS at home.

Finally, just as a comment, the PFOS case has revealed problems with our bioaccumulation regulations. The government should amend these regulations to reflect what we know today about bioaccumulation.

In summary, we ask the government to add PFOS to the virtual elimination list, to fix virtual elimination, to amend the bioaccumulation regulations, and to be a leader in ridding the world of PFOS.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Khatter.

Mr. Clarkson, Mr. Moffet, I believe you have comments.

[John Moffet, Acting Director General, Legislation and Regulatory Affairs, Environmental Stewardship Branch, Department of the Environment]

I have the dubious distinction of being the only government representative who will speak.

I'm here with Steve Clarkson, from Health Canada, who is available to answer any questions that committee members may have; and Greg Carreau, from Environment Canada, who is the lead risk manager for PFOS within Environment Canada. He is available to answer questions as long as his beeper doesn't go off, because his wife may enter into labour at any moment.

[The Chair, Conservative, Bob Mills]

We would excuse him if that happens.

[John Moffet]

If he leaves, it's not because you've offended him.

Thank you.

Let me start by stating very simply that the government completely supports the need to address PFOS. Any debate that you see this morning is not about PFOS, and it's not about the need to get rid of PFOS. What we're talking about this morning are some fairly technical issues.

Dr. Khatter suggested that PFOS should be added to the virtual elimination list, but he also suggested that one of the problems we're encountering with this very bill highlights the problems that we have with the virtual elimination list.

I hope I'm not misinterpreting, but I understood him to say that we should be eliminating the “level of quantification requirement” in CEPA that is associated with the virtual elimination list provisions at the moment, and that we should be allowing prohibition, or a prohibition regulation, as a means for implementing virtual elimination.

I agree 100% with that position. Unfortunately, that's the CEPA that we'd like to see, but not the CEPA that we have today. The CEPA that we have today says that if we add something to the virtual elimination list, we have to develop a level of quantification and we have to have a ministerial release limit regulation, notwithstanding the fact that we may already have prohibited the substance through a governor-in-council regulation.

That's what Bill C-298 would have us do. Despite the fact that the government has introduced a regulation to prohibit the substance, this bill would require us to develop a level of quantification and another regulation to limit its releases from products. It's our position that those two extra steps—a level of quantification and a release limit regulation—will simply be make-work projects and will not add any value to the environment or to human health.

That was not the case when this bill was introduced, to Ms. Minna's credit. When this bill was introduced in May of last year, the government had not added this substance to the list of toxic substances and we had not introduced a regulation. Since then, however, the government did add PFOS and its salts and its precursors to the list of toxic substances. The government did this in December 2006.

In the same month, the government introduced a proposed regulation and published that regulation in part I of the Canada Gazette. That regulation would prohibit the import, manufacture, use, and sale of PFOS, its salts, and its precursors, as well as any products containing those substances.

As Dr. Khatter explained, that regulation would allow four critical use exemptions. It's our understanding that these four exemptions are the same exemptions that the United States EPA and the European Union have allowed. Those are the two jurisdictions that have actually implemented regulations to address these substances.

The four exemptions are as follows. The first is a five-year exemption for fume suppressants for the metal-plating sector. These are needed until alternatives are in use throughout this sector. We need to suppress fumes because those fumes contain other dangerous substances, such as hexavalent chromium. Here we have a classic trade-off of one bad substance for another. We recognize the need to eliminate PFOS, as do the other jurisdictions. What we're doing is allowing a very clear timeframe within which to implement, to purchase and install, the technology and processes needed to use alternative fume suppressants.

The second is a five-year exemption on the use of existing stocks of firefighting foam. You can't buy any new firefighting foam. As for the stuff that you got from the fire stations or the large institutions, you can continue to use that material for up to five years, after which, even if you still have it, you have to get rid of it. You certainly can't buy any new firefighting foams that contain PFOS.

The third exemption is for photographic material and semiconductor devices for which critical use exemptions have been granted in jurisdictions where these devices are manufactured.

The final exemption is for the sale and use of manufactured items that were manufactured or imported into Canada before the regulations came into force. We're not asking people to take products off the shelf. If they're on the shelf, if they've been manufactured or imported, we're just phasing them out, essentially. You can't bring in any new products. As I explained, this regulation was published in Canada Gazette, part I, in December of 2006. We're now working under a timeline to bring those regulations into force this calendar year.

So why is that enough? Why don't we also need the steps that Ms. Minna outlines in Bill C-298?

First, the government regulation would prohibit not just PFOS but all chemicals that degrade into PFOS. The current bill is limited to PFOS, and the government's regulation goes beyond it. Obviously that would be a simple amendment to the bill.

Second, the government regulation goes to the source of the problem. It would prohibit sources of PFOS in Canada. The key route for the release of PFOS into the environment is through the breakdown of consumer products over time. So instead of regulating releases of PFOS from those products, the government bill would go to the source of the problem and prohibit its use in those products.

Third, it would be easier to enforce the government regulation. The government regulation, as I've explained, focuses on the use of PFOS, and would prohibit the use of PFOS. That's something we can monitor and enforce. A release-limit regulation, on the other hand, would require us to focus on products, and look at whether those products are releasing the substance. That means measuring PFOS coming off of manufactured articles, as opposed to just saying you can't use it any more. It would be much more cumbersome to enforce.

Finally, it's our position that at least two of the three actions the bill requires won't add value to health and the environment.

The bill would require the Minister of the Environment to develop a release-limit regulation, as I've explained, and it's our view that this would be redundant. We're prohibiting the use. You don't need to also regulate releases. If you can't use it, there won't be any releases.

The bill would also require a level of quantification, or LOQ. The only reason you need a level of quantification is to develop a release regulation. The premise of the virtual elimination regime is that you develop a level of quantification, which is the lowest level we can measure using routine but sensitive analytical methods. Then you put that in the regulation, and say that you can't have any more than that being released.

Well, if we're not developing a release regulation, we don't need the LOQ. It costs a lot of money to develop an LOQ, so let's force the government to spend that money only if we think it will add value.

The third thing the bill would do would be to add that substance to the virtual elimination list. Now, there may be some symbolic value in adding the substance to the virtual elimination list. As Dr. Khatter has stated, there are international efforts under way to add PFOS to the Stockholm Convention, which would have influence in other countries, including developing countries that continue to use PFOS. If putting the substance on a list in Canada would further those international efforts, and if the committee is of that view, then certainly there may be some merit there. But it's our position that in terms of actually requiring the government to take those extra steps of developing a second regulation and a level of quantification, it would not go any further than our current regulation would go, which is to completely prohibit the substance.

Thank you very much, Mr. Chair.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Moffet.

For the benefit of members who have just arrived, we have agreed--I hope--to five minutes in the first and second rounds so that we can get through this private member's bill and the next one. I'll keep it fairly tight to five minutes. That way we'll get in all of the questions.

Mr. Rota, please begin.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Thank you, Mr. Chair.

Thank you for coming in this morning and explaining PFOS. I have to admit it's not something that I'm terribly aware of on a day-to-day basis. I guess what's troubling about it is it is intergenerational. It does pass from one person to an offspring, possibly changing some characteristics down the road.

The questions are regarding CEPA and the virtual elimination section in there. When I read through this, it just seems like it's slipping through the holes. I'll ask two questions. One of them is fairly pertinent and the other one is just more for my own information.

How can the virtual elimination section be changed within CEPA? What changes do you see happening so there isn't that gap in the floorboards so that it falls through? How would you make that change to CEPA?

The other question I have is regarding the metal plating sector. You're suggesting a five-year exemption right across the board, although Dr. Khatter mentioned that only half of the metal plating sector is using PFOS at this time. Why the five-year exemption if the technology exists today and it is that dangerous and causes that much of a problem?

If you can answer those two questions, I'd appreciate it.

[John Moffet]

Sure. I'll answer the first question and then I'll ask Mr. Carreau to answer the second question.

The first question had to do with virtual elimination. Your perception, as I understand it, is that PFOS has somehow fallen through the cracks. I hope to allay that concern. What the government has done is proposed a regulation to prohibit the use of this substance. Prohibition goes well beyond virtual elimination, but the way virtual elimination is defined in the act it's a virtual elimination of releases, not a virtual elimination of uses. That's an artifact of the way the act is written. This committee is currently conducting a review of CEPA, and it may want to look at that, but the way the act is written now, it's a virtual elimination of releases.

There are various problems with the way the act is constructed now. One of them has to do with the requirement that in all cases, a substance that is identified for virtual elimination must have a level of quantification; it must have a ministerial release limit regulation. As I think we've all agreed, that's not always appropriate. Virtual elimination may be appropriate for substance A, but you may not need a release limit regulation. If you're going to prohibit the substance, you don't need to limit it. You don't need to also regulate its releases. CEPA doesn't give us that flexibility right now. That's a problem, in my view, that this committee may want to address, probably not through this bill hearing, but through the CEPA process.

Another problem that Dr. Khatter legitimately raised is that the bioaccumulation regulations didn't catch this substance, so this substance doesn't bioaccumulate in accordance with the criteria established by the bioaccumulation regulations that have been developed under CEPA. We know that's the case, and we're currently revisiting those regulations. We don't need to change CEPA to do that; what we need to do is revise the regulations. We're currently in the process of revising the regulations that define the criteria for bioaccumulation to allow us to address this problem.

Now, to be perfectly candid, that hasn't been urgent, to date, because we didn't want to catch ourselves in the virtual elimination bind, where if it had satisfied the B requirement, the bioaccumulation requirement, we would then have had to go down the route of an LOQ and a release limit regulation, when what we really wanted to do with this substance was ban it. So we need to fix the statute and then we can identify more things as PBiTs and slate them for virtual elimination, but allow the government to do the right thing for each substance, as opposed to locking us into one certain route that may be appropriate for some things but not others.

I'd be happy to go into more detail, but let me stop there and turn to my colleague to answer the question about the rationale for--

[The Chair, Conservative, Bob Mills]

You have 15 seconds to answer.

[Greg Carreau, Commercial Chemicals Formulation, Department of the Environment]

The short answer is that technology doesn't exist for alternatives to PFOS in the metal plating sector. There has been some penetration of some alternatives and some applications, but the reality is that this sector is quite diverse. There's quite a different number of metals involved and different applications, and the technology just isn't there yet to suppress the fumes as a result of the plating for the whole industry sector. Again, there are small penetrations in some areas, but across the board we're not there. We're working with the industry sector and we've given them a clear date of five years to develop the alternatives and get them on the marketplace.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

So it's not 50% using it and 50% not using it, then.

[Greg Carreau]

No.

[Anthony Rota, Liberal, Nipissing—Timiskaming, ON]

Okay. That was my understanding from what I heard.

Thank you.

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Bigras.

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

Thank you, Mr. Chairman.

I will keep it short. My first question will be directed to Mr. Moffet, and my second, to Dr. Khatter.

I don't quite understand the government's position on perfluorooctane sulfonate, or PFOS. If I understand correctly, the government published a recommendation in the Canada Gazette, Part I, as recently as October 2, 2004. Therefore, there was a proposal on the table. The public had 60 days to comment. Two and a half years later, we're debating a bill that addresses in part the question raised by the government in 2004.

Why has it taken you so long? You said you moved on this issue in December 2006. Why did it take you so long to deal with PFOS?

Dr. Khatter, are you satisfied with the statement made by Mr. Moffet this morning, and with the proposals made in December 2006? To all intents and purposes, do they render the bill now on the table obsolete?

[The Chair, Conservative, Bob Mills]

Dr. Khatter, do you want to reply to that while Mr. Moffet is consulting?

[Dr. Kapil Khatter]

Thanks for the question, Chair.

To respond to the first part of the question, which was actually more for Mr. Moffet, part of what we've been concerned about and we've spoken at length about at the CEPA review is the lack of timelines that occur in terms of getting substances on the schedule of toxic substances, and after they're on the schedule of toxic substances, the length of the timelines the government has for proposing regulations and then finalizing regulations. We've been pushing for the idea that it really needs to be sped up. There's no reason that it should have taken us until 2004 to even propose anything, and until now we're still sitting on trying to decide what we're going to do with PFOS.

In terms of whether this bill is useful, I think we're less concerned about how you get PFOS out of the system than that you get it out of the system. So will you support the idea of using prohibitions? But let's be clear about the fact that we don't need release limits and the fact that the prohibitions have exemptions. There will be releases: the chrome-plating sector, the electroplating sector, the plastic-etching sector will be still releasing substances. Those who are making semiconductors will still be releasing PFOS. We do need release limits for that area.

The other part of it is that PFOS is a substance that should be virtually eliminated. It is persistent. It is biocumulative. It is inherently toxic. It is appropriate and important symbolically to make sure that it gets on the list and is labelled for what it is, both, as Mr. Moffet says, internationally in terms of the symbolism and domestically in terms of CEPA.

[The Chair, Conservative, Bob Mills]

Mr. Moffet.

[John Moffet]

Thanks, Mr. Chairman.

I'd like to ask your permission to refer the first question to my colleague Robert Chénier, who is the manager of the assessment section at Environment Canada. So he manages all of the risk assessments and has the full history of the assessment that was undertaken.

[The Chair, Conservative, Bob Mills]

I would ask you to keep it as short as you can. As you know, we're under a time crunch here. Thank you.

[Robert Chénier, Manager, Assessment Section, Existing Substances Division, Department of the Environment]

Thank you very much.

The assessment report was indeed published in the Canada Gazette in October 2004. Further to this process, we invited members of the public to send us their comments on the report, on our scientific findings, and so on. We received many comments, in particular about the bioaccumulation of the substance. The fact remains that research into perfluorinated substances like PFOS is a relatively new field. Ten years, ago, no one really knew much about these substances. Science has evolved considerably.

So then, we received comments, in particular about the accumulation of these substances and their effects. As is always the case, we were required to take a serious look at these comments and to convene a meeting of international experts. In 2005, European, American, Canadian and Japanese experts came together to discuss accumulation issues. As Dr. Khatter mentioned earlier, according to the report, this substance does not meet the accumulation criteria under the Canadian Environmental Protection Act. The report found that based on new scientific data, the substance accumulates in organisms.

In short, we were able to use this time to conduct additional research and to consult with international experts in order to do an assessment and reach some conclusions on substance accumulation.

[The Chair, Conservative, Bob Mills]

Thank you.

We'll go on, please, to Mr. Cullen.

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

Thank you, Chair.

Thank you to the witnesses, and to Mr. Carreau in particular, for being here today, given the circumstances. And congratulations.

I have a question for Mr. Khatter. If the government listed this substance in December 2006, is that not sufficient in answering some of the issues raised and presented in Bill C-298? Is it not enough that the government has listed it on the banned substances list and Canadians should feel satisfied with that?

[Dr. Kapil Khatter]

Again, I think the prohibition does well. We do need to follow the path that we've decided in Canada of virtually eliminating substances that are persistent, biocumulative, and inherently toxic, and virtual elimination will allow us to move toward zero emissions in Canada.

In particular, when we're looking at the chrome-plating sector and the electroplating sector, where PFOS will still be in use, if you look at the Gazette notice, it speaks of the number of plating companies in Canada using PFOS and the number that aren't, and it is about a 50-50 split. I don't know enough about the sectors, but that may cut down on the lines of certain uses and some that need PFOS more than others. But I think the government needs to look at the fact that the nomination of PFOS to the Stockholm Convention does not include an exemption for chrome plating and electroplating.

As well, in the U.K. there is a widely available consulting report to their environmental agency that also does not recommend an exemption for chrome plating and electroplating and says that fume hoods and other technology is available to eliminate the use of PFOS or to switch over from PFOS.