Environment Committee on May 17th, 2006

[The Chair, Conservative, Bob Mills]

Order.

Just to bring everybody up to date, we are looking at a CEPA review, which is mandated. We've decided as a group that the way to do this is to listen to an overview of the issues around a CEPA review. So we had the NGO group one day last week; we had the officials on Monday; and today we have industry representatives, who are going to give us their overview of where they see us going. Then the committee as a whole will meet and plot our course through the rest of the CEPA review the week we get back here. So this is where we are at this point in time.

As well, I would mention to the members—and we'll see that the members who aren't here now will be informed of this—that a British delegation will be coming on the 30th, a group of five parliamentarians plus the Minister of Environment, who would like to talk to us about the whole issue of climate change, and so on. I would ask you to give consideration to attending those meetings, and we'll see that the members who aren't here get those invitations as well.

Anyway, I'd like to welcome our guests. For your benefit, if you didn't know exactly where we were going, we're looking for an overview, so I'd ask you to keep it as brief as you can and give our members a chance to ask the questions they would like answered.

I'm not sure of the order. We can go in the order you appear on the agenda.

Gordon, would you like to go first?

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

Thank you, Mr. Chair.

I would like to thank the committee, first of all, for the opportunity to participate in the review at this early stage. We hope we can be helpful to you in figuring out what issues you should focus on.

Today you'll hear from me, representing the Chemical Producers' Association; Justyna Laurie-Lean, representing the Mining Association; and Shannon Coombs, representing the formulated products industry. This will give you some perspective of industry views on CEPA and the review process, but there are a number of other groups you may want to hear from later and who will probably want to talk to you. The steel producers wanted to be here today, but that didn't work out.

I'll be talking to you about issues that CCPA raised in a brief that we sent in on November 25, just prior to the election, when the predecessor to this committee set up a scoping committee to look at the same issue you're looking at now. CCPA will also be sending in an additional brief with more points, some of which I'll cover today. You'll be getting that shortly—hopefully within the next week or so.

Justyna Laurie-Lean will be commenting on some key issues for the Mining Association. She'll also be touching on the breadth and scope of CEPA, which is a critical issue to look at in the review. Shannon Coombs will be looking at issues that are key for the formulated products industry.

From CCPA's perspective, we want CEPA to support our members' continuous improvement in environmental health and performance. That improvement is primarily driven by responsible care, which I hope all of you have heard something of, and which I'll speak a little bit about in a minute, but we also need supportive, effective legislation.

But first, let me just touch on responsible care. This is a set of initiatives started here in Canada by the Canadian Chemical Producers' Association in the 1980s to meet public concerns about chemicals and their impact. We feel it's been very successful; it has spread to 52 countries around the world and has been recognized in a number of international statements. I think it is something that we in Canada can be quite proud of.

In Canada, responsible care means that our 65 member companies operating across Canada make safeguarding employees, the environment, and their neighbours a primary concern. I think an example of the success of responsible care is the charts that I provided to the committee, which I think you have before you. These are an extract from our Reducing Emissions report, which we publish annually. I've got our website on there, too, if you want more information.

As a sample, these charts show the progress our members have made in reducing overall emissions of greenhouse gases and smog-producing volatile organic compounds and NOx. Overall, I think it's important to note that our emissions per unit of output are down 85% since 1992. So we're making more, and having less emission, which is what we think is the key to sustainable development.

We think we have a good track record and we've made efforts to try to demonstrate the good and the bad of that track record through this Reducing Emissions report, but we do want to do better and we know that we can and must do better. And we're looking for legislation that will be effective and supportive of our efforts in that direction.

In the brief we sent to the previous committee last November, and which I'll now talk to very briefly, we raised seven issues that we hope will be addressed by this committee in its review of CEPA. I'd just like to touch on these issues.

First of all, we think that the review should be focused on the very few problems that have been identified with the very little experience with the act so far. We feel a major rewrite at this time would be premature, given the limited experience we have with CEPA 1999, and that it could actually hinder environmental performance by causing disruption and confusion at this time.

As an example of this, I'd like to talk of the DSL categorization and screening activity that CEPA 1999 required. This has been a massive effort so far by government and stakeholders, which has gone on for six years. We in Canada have invested heavily in this world-leading projects. Categorization is the first stage, and it's going to be completed this September.

CEPA also requires a second stage—screening risk assessments—to follow up on categorization and to use the information from categorization. We urge the committee to see value in bringing both of these to completion, the categorization and the screening assessments, and not to change course midstream on this important initiative.

Our second point concerns the decision of the prior government to look at using part 5, the toxic substances part of CEPA, to manage climate change. In our view, other parts of CEPA could be used outside of part 5, such as the international air pollution provisions, or possibly the clean air initiative announced by the new government.

We see greenhouse gases as a staple of life, and we just don't think it's appropriate for them to be regulated as toxics under part 5.

Furthermore, we think the term “toxic” generally has caused a lot of stigma for products in a wide range of areas. There's a wide range of risk management options under CEPA, and to stigmatize all products that fall under these as toxic we think has led to a lot of confusion. We hope the committee will review that aspect of the act and look at removing the term “toxic” from it. Shannon will be talking about that in some detail.

There is a fourth point we would like to raise, which is very narrow, perhaps, and technical, but we think it's important. CEPA requires establishing so-called limits of quantification for the substances that are subject to virtual elimination. This requirement applies even when we think it should be unnecessary--for example, when those substances are only there as irrelevant trace contaminants in a product. We believe having government, industry, and environmental groups spend the resources on figuring out and looking at the issues around what the limit of quantification should be in those cases is unwarranted. Setting those limits should be left to situations where they are needed.

A similar problem arose in the same context when the international Stockholm Convention was negotiated. It looked at persistent organic pollutants, which is a similar group to what would be subject to virtual elimination in Canada. They adopted a solution that was accepted globally and that we hope will be looked at in this review and incorporated in CEPA.

A fifth point that we'd like to see the committee look at is the administrative duties in the act. We think these need to be strengthened so that Environment Canada and Health Canada actually stick to the rules and what they're supposed to do. For example--and we'll talk about this in more detail in the next submission we send to you--there are user fees for new substance notification regulations that we feel are completely inconsistent with the User Fees Act, yet we can't get Environment Canada to move on that. We'd like to see that issue addressed in the review.

As the sixth point, we think Canadians need better information on health and environmental issues in the country. This is necessary to make the decisions that have to be made as we move forward. We believe the act should require state of the environment and state of health reporting. This will require additional resources for the department. One area in particular that we would recommend is that Health Canada get resources for bio-monitoring, population surveillance work, and the communication of those results.

The last point, which we raised in the brief we sent to you in November, is that the timeline for the CEPA review probably should be lengthened, perhaps to ten years. We just don't think that the five-year timeline that is currently in operation makes sense. There just isn't enough experience from the last review to be able to have a sound review this early.

Since we sent you the brief in November, an additional issue has arisen that we would like to look at, and that's the government's commitment to improve Canada's air quality, which CCPA absolutely supports. As we see it, this could be done under a clean air act or possibly under CEPA, outside of the part 5 toxics provisions. CCPA could support either approach. Maybe the most straightforward way would be to use CEPA, although some amendments may be required. Maybe it would be better to have a clean air act. We want to make sure the committee looks at this issue; in particular, we want to make sure there's no legislative overlap that results, because we believe that would be a problem.

Also, I think a clean air act will require working more closely with the provinces in a wide range of areas. We believe the committee should consider whether the equivalency provisions that currently exist in CEPA will hinder that work. We particularly welcome questions on that issue.

Those points are all covered in the note before you.

One last thing I'd like to raise, and it follows up on the presentation that Environment Canada gave on Monday, is that we believe you should look at the new substance regulation provisions--provisions similar to what Australia has--and the ability in the legislation to recognize assessments of other jurisdictions. We think that's an approach that recognizes the need for international cooperation and work-sharing in the assessment area, and we think adding that flexibility to CEPA would be a good idea

Those are CCPA's recommendations for what we think the committee should be looking at in its review. I'd be pleased to answer questions. As I said, we'll be providing an additional detailed brief in a few weeks.

I'd now like to turn to my colleague Justyna Laurie-Lean, who will talk about some of the issues for the mining sector.

Thank you.

[Justyna Laurie-Lean, Vice-President, Mining Association of Canada]

Thank you.

To start with, I won't go over who we are. It is included in our written brief, and you can read that later. I'll discuss just the key points.

First, CEPA does affect our industry. It affects every aspect of our industry. That starts with the source material that we ship, that we buy, the kinds of reagents we use, the operations themselves, and the downstream products, the market itself. We've observed that the effect of CEPA has grown over the last decade. Based on its current structure and developments, we expect that growth to accelerate in terms of impact.

The scope of CEPA is very broad. Most people focus on the management of substances part, but there are many other parts, including fuels and engines, transboundary movement, pollution, and federal lands. Our industry is impacted directly by parts 3, 4, 5, 7, 8, and 9, so several parts of CEPA.

One thing is very easily overlooked. When most people think of substances, they think very narrowly in terms of chemicals, that it is, for instance, a brown liquid in a flask, whereas the definition of a substance in CEPA applies to materials as well--the things you sit on, write with, are surrounded by. All that is considered a substance under CEPA, as are releases from a specified type of source. So it's a very broad definition, and therefore the substance management part has a very broad application.

In terms of our experience, one thing we note is that there does not seem to be a shared view among everyone about what is the role of CEPA. Some perceive it as a safety net. That expression has been used quite a lot. Others see it as a foundation that supports other legislation across jurisdictions, or as an overarching national legislation. In your review, as you're considering what, if any, changes are required in how it's functioning, you need to be clear on which role you wish CEPA to play.

There's also a lack of clarity and a lot of tangling in terms of how CEPA interacts with other federal legislation--for example, the Environmental Assessment Act, the Fisheries Act, the Hazardous Products Act. As well, how does CEPA relate to provincial legislation? Provincial environmental legislation tends to work in a different way, through things like operating permits, and therefore it is sometimes very difficult to see how they fit. They address sometimes the same issue or the same facility but from a different angle. Understanding that would be very helpful.

In practice, what we see is that at this time very few people understand CEPA and know it, and know all the parts. There are some who are experts in a particular section, but very few actually have an understanding of how the whole act is intended to work.

The act is not fully implemented. There are sections or areas that are yet to be interpreted. Even those that have been interpreted and applied haven't been tested. There may be one or two examples, or the outcomes are still not clear. So it's very difficult to say what is working well, what isn't working well, and whether any shortcomings flow out of the legislative structure or flow out of the implementation.

What concerns us is that we're observing a trend beyond CEPA. I had the great privilege of attending many of this committee's hearings during the review of CEAA. I was extremely overwhelmed by what a wonderful job you did. That came into force in October 2003, and we're waiting for the implementation. Hopefully it will happen before the next review. There was a similar experience with SARA.

We're hesitant here in terms of rushing to make recommendations about how to improve CEPA. Will it be a further setback to implementation as people go back and try to interpret? We're really torn, in approaching this review, on what to recommend to you.

We have a wish list of areas that we think you need to think about and that we would like to see. Obviously for us, clarity, predictability, and consistency are extremely important for as broad and as important an act as CEPA.

Clarifying the role of CEPA in the overall system, federal and provincial, of environmental legislation and health protection law is very important. We would like to see an act that not only permits but encourages complementarity or mutual support among the various pieces of legislation and between the two jurisdictions as well as minimization of conflict and inconsistencies, which are not helpful to the environment and not helpful to industry.

On a more specific note, it would be very good for us to have clarification of the relationship between the use of the word “toxic", the definition in section 64, and the role of schedule 1. A lot of people hear the word “toxic” and think of schedule 1 or substances so labelled as particularly damaging mega-uglies. Yet when you look at the definition or the criteria set out in section 64, they're a floor on which any substance that could potentially be damaging in some way to either the environment or health could be captured. So there's an inconsistency there, which makes discussion of how it should be used very difficult.

Another point we would make is we would like to see a refocusing of emphasis on real outcomes, as opposed to process. We have seen a tendency to focus too much on process: on having an instrument, on a discussion of what type of instrument, and not sufficient emphasis on the actual outcome in the environment, in human health protection that we wish to accomplish. Part of that has been a real reduction in monitoring and reporting on the state of the environment. We have not seen a state of the environment report in many years. Some of the information is available, but it appears to us that in assigning limited resources to discharge mandatory process obligations, the government has chosen to cut back on monitoring and reporting. Yet how can we make decisions, and how can we judge whether the act is working and what more we need if we don't have any information or good enough information for us and the public on whether the state of the environment is improving, where it is not improving, what needs to be done?

In that context, we need to keep clear the role of industry versus the role of government in generating information. Industry can provide and does provide information on releases from our facilities. We monitor impacts on the environment around our facilities, but we cannot provide baseline data on the overall Canadian environment. We're not going to take blood samples from Canadians. Those sorts of things have to be done by government, and the interpretation and analysis and trend-watching has to be done by government. It cannot be done by us.

The final thing from our industry perspective: We would ask you to keep in mind this broad range of substances that needs to be addressed and is addressed by CEPA. Our industry deals with inorganics, as opposed to organics, and many people think of dioxins and furans as chemicals that need to be addressed. The kinds of substances we deal with are very large in volume, but very small in number. Not many elements have been invented and put into use for thousands of years, and they're applied in a very wide range of applications. A lot is known about them, and a lot of field data is available.

The kinds of exposures in the environment to environmental organisms or to humans have many different pathways and sources, some of it natural, a lot man-made; it's very difficult to study just one thing. For example, the hazard criteria used to identify organics at the highest concern, like persistence and bioaccumulation, are not very good criteria when applied to our types of substances, because they don't differentiate between high hazard and low hazard.

I'll stop here.

[The Chair, Conservative, Bob Mills]

Thank you. Our members will have questions.

Ms. Coombs.

[Shannon Coombs, Executive Director, Canadian Consumer Specialty Products Association]

Thank you very much.

Good afternoon, Mr. Chair and members of Parliament. It's a pleasure to be here today to discuss the two key issues for our industry sector pertaining to your review of the Canadian Environmental Protection Act.

My name is Shannon Coombs, and I'm the executive director of the Canadian Consumer Specialty Products Association, but I'm here today representing FPIC, the Formulated Products Industry Coalition. Our unique industry coalition of 15 trade associations was formed in 2001 due to the Food and Drugs Act being subject to CEPA.

FPIC member companies provide food, personal care products, household cleaners, cosmetics, medical devices, and pharmaceuticals to Canadians. Collectively we represent 750 companies. We comprise a $66-billion a year industry, and employ over 375,000 Canadians. A list of the members of our association is in our submission.

So why are we here today, and why are substances in the Food and Drugs Act subject to CEPA? CEPA is the legislation that governs new and existing substances in Canada. In 1999 parliamentarians requested that CEPA be the safety net for all environmental assessments of substances. In section 81 of the act, there's a requirement for other acts to have a pre-market assessment 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 the requirements, then CEPA would be the act to govern environmental assessments.

Other acts, such as the Seeds Act, the Fertilizers Act, and the Pest Control Products Act, met CEPA's requirements and were scheduled for exemption. The Food and Drugs Act did not meet the requirements of CEPA; therefore environmental assessments for substances in Food and Drugs Act products were subject to CEPA's regulations--the new substances notification regulations.

We've been working under this regime for the past five years, and we're satisfied that CEPA is the most appropriate legislative authority for these substances. However, when Food and Drugs Act substances were captured under CEPA, it left in limbo a list of approximately 9,000-plus substances that have been used safely and effectively by Canadians for almost 20 years. These substances are in limbo because they're considered to be new, and not existing, under the act. This needs to be remedied. I'll refer to these 9,000-plus substances in the rest of my presentation as the in-commerce list.

Since most of our member companies have never been subject to anything other than rigorous pre-market assessments and/or notifications under the Food and Drugs Act, being subject to CEPA was new and challenging. Despite a learning curve, FPIC has recognized that CEPA's systems and regulations provide predictable and rigorous submission reviews to member companies and protection to Canadians and their environment.

I know that you'll hear numerous issues about the act from other stakeholders, but FPIC is requesting the committee to consider two key recommendations for improving the act. They would provide legislative clarity that only Parliament--you--can provide. They are as follows.

First, we would like the in-commerce list acknowledged as a list of existing substances under the law by creating a provision in CEPA to recognize them as such. You're probably asking yourselves what's on the in-commerce list. There's quite a range of substances, including pharmaceutical actives, cosmetic ingredients such as extracts, surfactants that are used in disinfectants, food colourings, flavourings, lard, starch, kiwi essence, oil of lemon, etc., just to name a few.

Why do we want to have them treated as existing substances? The substances and products have provided and continue to provide benefits to Canadians. They've been in commerce for almost 20 years--clearly they're not new but existing--and it makes sense. To ensure there is a mechanism for the in-commerce list to be treated as existing substances, just as they are on the domestic substance list, we're suggesting that the government categorize or prioritize--whatever word you want to use--the in-commerce list, and then, if needed, provide screening-level risk assessments.

I believe the officials from Environment and Health Canada provided an overview of the categorization and screening of the domestic substances list, as did Gordon in his presentation. Treating all existing substances the same also makes sense.

I'd like to turn to the issue around the use and meaning of “CEPA toxic”. FPIC is requesting the committee to consider removing the word “toxic” from the legislation so there is clarity and understanding with respect to how substances are assessed and managed in 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 is evoked.

As stated in our submission, the challenge is the misunderstanding of the term “CEPA toxic”. CEPA toxic substances have been misinterpreted as being intrinsically toxic, i.e. poisonous and/or lethal. I will give you some examples of substances on schedule 1 that cause some confusion.

First, CFCs destroy atmospheric ozone and are toxic to the environment but they're not toxic to humans, which is why they're still used in asthma inhalers, for example.

Two, ammonia is on schedule 1, but it is only CEPA toxic in the environment from ammonia traces found in waste water effluent. This substance, of course, is used in numerous other applications, such as fertilizer or glass cleaner. They've become targets because of the listing of CEPA toxic and the misinterpretation.

Carbon dioxide, which we also mentioned in our brief, is on schedule 1, so that greenhouse gasses can be managed. But carbon dioxide is not intrinsically toxic, as we all rely on it to breathe.

Clearly the challenge around the term “CEPA toxic” is the misunderstanding that prevails and the actions that stem from it. Groups often target products that may contain the substance, apply the label of “CEPA toxic” to all the uses of the substance, and alert Canadians to a risk that's not a risk. They've all been instances of provincial authorities making procurement statements regarding CEPA-toxic substances, stating that products cannot be purchased if they contain schedule 1 substances.

If the term is removed, we believe it will provide clarity in the act, and we believe it will increase the credibility of the act as well.

Is there anything that CEPA can do better? Always. CEPA is a huge piece of legislation, and imbedded in the act are the pillars of the precautionary approach: science-based decision-making, sustainable development, risk management, and pollution prevention. And if anything, increasing the communication to Canadians about the successes of this act and how it provides protection for Canadians is in everyone's best interest.

For example, as Gordon mentioned, the categorization and screening of the domestic substances list is a made-in-Canada program. Other OECD countries have programs in place, but Canada is definitely in the lead. And this September, the first phase, the categorization, will be completed, which is a major achievement and one that I believe Canadians should know about.

If anyone has any questions on that, we'd be happy to answer them.

[The Chair, Conservative, Bob Mills]

Thank you very much.

We'll start with Mr. Holland, please.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you so much to each presenter for coming today.

A common theme through all the presentations was this issue of the term “toxic”. It's obviously an issue of concern for each of you, and I just want to explore it a little bit.

If you were to remove the term “toxic”, what are you suggesting it be replaced by? Or are you suggesting that these substances then not be listed as anything, and so remove the title and simply remove that categorization entirely?

I can understand the concern that if there are certain products that include substances that are deemed to be toxic, they're not going to be purchased or utilized, and that impacts on market share. But when you have something like CFCs, which clearly do have toxic implications for the environment, although maybe not for individuals personally.... Or take carbon dioxide, which of course is in pop, but by the same token if you have large amounts of it, it's obviously toxic.

It's a question of amounts. How do you deal with these substances, which can be toxic, depending upon their application? What are you suggesting we replace that with?

[Gordon Lloyd]

I'll try first.

In the last government there was a bill that was introduced as part of the budget, which was sort of a strange process--to deal with a definition in CEPA as part of the budget bill. But that almost solved the problem. The proposal was to not call them anything. There was a lot of debate about what they should be called, and the best way to get around that was just to refer to them as substances on schedule 1.

Why I say it almost solved the problem is that there was one area where it left the definition “toxic” unchanged. The word “toxic” was left in the section dealing with virtual elimination.

The way it was done, the term “toxic” for virtual elimination would no longer have been tied to section 64, which is the risk base of the statute, and “virtual elimination” could then have been interpreted as changing from a risk-based approach to a hazard-based approach, which our association strongly objected to. So we, and I think others also, opposed this change.

I don't know why the government didn't want to make that additional change and also change it in section 65 at the time. If the committee wanted to look at that solution, I think it almost made it. It would just have required referring to substances on schedule 1 in section 65 as it did in about a hundred other sections in the change.

There's also an associated issue of some references to “toxic” in the preamble. And if “toxic” isn't in the rest of the bill, then what would the preamble refer to? I think that could be solved by, again, the preamble referring to substances on schedule 1. Environment Canada lawyers, when we discussed this with them previously, thought that was inelegant. I'm not sure if it's elegant or inelegant, but it would certainly have been clear.

So I think there's a fairly straightforward solution that was almost arrived at before, and that solution would be worth looking at again, but avoiding the errors that I've just described.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Okay. Maybe you can help me a little further on this, because I understand, on one hand, why you're concerned with this, but on the other hand I don't.

If you don't call them “toxic”, and you simply say they're “substances”, under schedule 1--which, again, doesn't mean a heck of a lot, if you're going to take these substances and you're going to give them a categorization of “toxic”--what does that specifically do in each of your instances?

And Ms Coombs, you alluded to that a bit, but why does this particular label cause angst, for example, to the two other presenters, Mr. Lloyd and Mrs. Lean? What is the problem with it? Whether it's called “toxic” or “substances” under schedule 1 seems like a rather semantic thing.

[Justyna Laurie-Lean]

Section 64 covers substances with very different types of issues. Some are of concern to human health in even very small amounts. Some are of concern if released in very large volumes, or if not managed properly, or can be damaging to the environment in a broad sense, but not to the immediate environment. Schedule 1 and the label “toxic” don't differentiate among these characteristics, and that causes confusion. Take, for example, something like ammonia, which has certain useful applications and is of concern only in particular circumstances versus things like dioxins and furans.

So it's a label that covers such a broad range that it doesn't communicate very much, and it can lead people to make assumptions. It makes discussion on how to manage things very difficult, because people tend to assume that everything on the list needs to be managed. For example, for our sector, releases from smelters—they're defined in a particular way—are on schedule 1. How do you compare those to a very specific substance that is used in a food product? You can't, yet the label seems to apply to the whole list, and most people interpret the label in a certain way.

[Shannon Coombs]

Just to clarify for us, when a substance--for example, ammonia--is placed on schedule 1, there's no context provided. It's on the list; it's on schedule 1 because a risk assessment has been done about a particular use that has warranted its being placed on schedule 1, meaning it needs to be managed. When something's on the list, all of its uses automatically, across the board, are deemed CEPA-toxic, when in fact they're not.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you for that explanation.

I'd like to move off that for one second and ask, Mrs. Lean, about the comment you made with respect to industry being responsible for monitoring on-site impacts and monitoring implications of various activities on site, but off site--and you've given an example of taking blood samples--not being responsible. Can you try to define a little more clearly how you see that? In other words, what do you see as the responsibility of your industry to monitor its activities and the implications of its activities, both on its site and then, say, in the surrounding community? Where do you draw that line? There's an important distinction.

[Justyna Laurie-Lean]

I'll give you an example. One of our members has a program with the community, the province, and a local health authority that involves a children's blood lead monitoring program for the surrounding communities. It's one of the few areas in the country where there is very good data on what the trend has been in children's blood lead. But they're not going to take samples or engage in monitoring in, say, Halifax, at the other end of the country. That isn't their role, and doing so would be completely inappropriate.

So yes, you do take responsibility where your impacts are, whether they are caused by your operations or your products. You do take responsibility, and you can generate information, but you can't generate information on background. You may, for example, want to know whether certain species are recovering or healthy or being impacted. And it may be that unknown stresses or substances you didn't even think about are at play. As Canadians, we need to know that kind of background information and whether the overall trends are improving, decreasing, and so on. You can't look at just the industry, because industry's not the only cause of the problem. So you need to look at both.

[Mark Holland, Liberal, Ajax—Pickering, ON]

In terms of defining the limit of where the boundaries for industry are, who do you see defining that limit? Do you find the government setting that line and determining what your responsibilities are as industry, and on the opposite side, determining what its responsibility on the government side is to categorize that kind of data?

[Justyna Laurie-Lean]

In practice, it's usually fairly evident, and usually defined by provinces. It's part of operating permits or particular regulations where there's a definition of upstream, downstream, and sampling points. Most of the impingement and ambient monitoring is defined in the operating permit, and there's usually an agreement where you're going to do it and sign off on the sampling point.

So there are processes already; that has never been an issue. It's the gaps in-between that aren't there, particularly on diffuse sources. If you look at the national pollutant release inventory, it only has information on releases from point source facilities, or from defined operations. It doesn't have information on, for example, roads, road dust, or any of those kinds of sources, or car or vehicle emissions, because those are not the sorts of things that an individual consumer is going to go out and measure—for example, their tailpipe—and report.

Those sorts of estimates have to be done by government, and the monitoring of air quality in the city has to be done by government.

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Bigras.

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

Thank you, Mr. Chair. I will be sharing my time with my colleague, Mr. Lussier.

Today, I want to focus on part 5 of the CEPA, with particular emphasis on section 71. Under the current legislation, if I understand correctly, both the public and the government are responsible for proving that a substance is dangerous. Subsection 71(1)(c) stipulates that the industry must carry out tests, but it is abundantly clear that this section has rarely or never been applied. The reports and submissions that I have received say that the government has rarely implemented these sections, and when it has, it did so on a voluntary basis.

We often talk about the effectiveness of the CEPA and say that the act's effectiveness correlates to the financial resources that are allocated to it. Do you not believe that the time has come to reverse the onus of proof so that the industry is forced to demonstrate that a substance is safe? From what I gather, the act does indeed contain requirements, but the government does not apply them.

[Gordon Lloyd]

If I could, I'll respond to that.

I think you have to look at this in terms of the way the legislation divides things up. There are the so-called new chemicals, which are ones that have come about since the new chemical notification requirements came into place in the late eighties. Under those requirements, industry has to provide information to the government for making the assessment, and it's information that the government determines is necessary for assessing whether the substance is safe. So that's almost a reverse onus. It's not quite a reverse onus, because it's not industry proving it's safe, it's the government making that determination.

Now, would it be better that industry made the determination, or government? I think the public probably will have greater confidence in the government making a determination that the substance is safe, based on the data, than in industry making that determination. And I believe that's really why it doesn't go all the way in terms of reverse onus. But we are required to give the government the information it needs to make that decision, and if we don't give it enough, it can ask for more.

So that's the regime for so-called new substances, and that's basically how it works in other jurisdictions, as well.

For existing substances, there has been, in Canada and in other countries, a legacy of substances that were around before there were requirements to notify and establish the safety of new chemicals, and that's what the DSL categorization and screening is intending to address.

We have been giving the government information at the categorization stage. They've also been using modelling information. And we will give government further information as they determine they need it for the chemicals that need to be assessed at the screening risk assessment stage. I think other countries will eventually take a similar approach, but we are ahead of them.

So that's how I understand that the system is working. I think it works very well for new chemicals, and I think that five years, six years, or ten years from now, we will look back on the experience with the categorization and screening and hopefully come to the conclusion that it also worked well in this area. It is just starting in the existing chemicals area. But we are far ahead of any other country in that respect.

I hope that helps to answer your question.

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

Mr. Chair, I would like to ask one last question.

The process has to be made as transparent as possible. I have read several submissions. I have one here that was submitted by the Groupe Intersol on March 15, 2005. The authors insist that information must be disseminated more widely to the public.

Do you not believe that the industry should be subject to requirements so that it meets a certain number of criteria regarding the collection and dissemination of information before the data is classified as confidential? One thing is true, not all data is always available to the public.

If I understand correctly, to achieve this, the Canadian Environmental Protection Act must be amended. At the very least, do you not believe that information should be made more accessible to the public before data becomes confidential?

[Gordon Lloyd]

This is a complicated issue that is getting looked at internationally. Globally, the chemical industry is becoming more forthcoming in providing data on chemicals. There are limits to that, and we do want to make sure that confidential information is protected.

Even if the information isn't confidential, there's also an issue of a particular company going to the expense of generating the data—which could run into millions of dollars—and providing it to government. Should that information become publicly available? The concern isn't that the public gets the information, but that another company gets it and free-rides at the expense of the original company.

There are conflicting issues here. In Canada and internationally, we are moving increasingly towards more of this information being public, especially in the high production volume chemicals area. For the most part, this is being led in the U.S. and largely stimulated by pressure from environmental groups that say they've done literature searches and find little or no information on chemicals being used in huge volumes. Companies replied by saying it's not that we don't have the information, it's just that it's not in public data banks. Similarly, through a U.S. challenge program that's now more broadly accepted within the OECD—Canadian industry is also participating—and through the International Council of Chemical Associations, more data is being made publicly available.

We are moving in that direction. There's a definite boundary we don't want to cross regarding confidentiality. Then there's the other issue I raised about fairness—not of the public getting information, but of another company free-riding.

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

I will shorten my preamble in order to respect my time limit.

Mr. Lloyd, I looked at the graphs, and I congratulate you, because I see that there has been a reduction in emissions. According to your figures, it would seem that there was an 85% reduction in emissions production. Therefore, you must not have any problem with the goal of making a 35% reduction, which is the goal that the government must reach.

Were factory shutdowns a major factor in the 85% emissions reduction? In addition, what explains the sharp drop that we see on the graphs for 1998?

[Gordon Lloyd]

First of all, I want to make it clear that it's not an 85% reduction in emissions. It's on an intensity basis. The number I've shown in this graph is emissions going down and production going up; that's how we get the 85% number.

How big an issue are shutdowns? That has been a factor in this, but I don't think a major one. The graphs you have are probably too small to see, but starting at 2000, there's another curve. We actually reviewed this issue. We have a memorandum of understanding with the federal, Ontario, and Alberta governments. British Columbia is about to join, and there are also environmental groups that participate. They asked us that question a year ago, and we worked with them in answering it. We came up with the solution of the other line in these charts that tries to show from 2000—we went back that far—what the situation was when we take out companies that are no longer CCPA members because they shut down operations.

Obviously, our improvement isn't as dramatic because part of the improvement is related to plant shutdowns, but I think the improvement still continues. This is an issue we looked at with a stakeholder group and are trying to portray in our graphs.

I hope that answers the questions.

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

What about 1998?

[Gordon Lloyd]

Ahh....

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

Why is that slope there?