Environment Committee on May 17th, 2006

[The Chair, Conservative, Bob Mills]

Mr. Warawa, please.

[Mark Warawa, Conservative, Langley, BC]

Thank you, witnesses, for being here today.

My questions are going to focus on two different areas. Primarily, the first will be focusing on your recommendations for the CEPA review itself, and then your input on the Canadian Environmental Protection Act.

As a committee, we've agreed that this will be our number one priority, so we've started off with the CEPA review. We have a year to complete that and we want to make sure it's done properly and adequately. So could I have your input and your recommendations on doing an effective CEPA review?

It's a very general question, but we've asked each of you to be here to give us some guidance. We're legislated to do this review, and one of your comments is that we often focus on procedure rather than a good outcome. So I'm asking for your input on making sure this review, which is legislated, is still a good outcome. Could you comment on that?

[Shannon Coombs]

I'll jump in and my colleagues can finish.

From a CCSPA and an FPIC perspective, we've provided two key recommendations. It certainly is the committee's prerogative to look at the review however they wish, but in the last review, in 1999, there were over 150 amendments outside the scope of the bill that were included in the legislation. It certainly increased the complexity of the act and put a demand on resources for its implementation.

From our perspective, I think we still see the act as being in progress and learning about how it works. As for the two recommendations we put forward, if you would look at administrative changes, that would help provide legislative clarity and improve the act from an administrative point of view.

[Gordon Lloyd]

I think I tried to be very specific in the brief we sent on the very few issues that we see are essential to fix in a focused review. I'll very briefly summarize.

On the stigma issue, take the word “toxic” out of the act. On the climate change issue, do not regulate greenhouse gases under a section that was designed to deal with toxic substances. Either deal with them in the international air pollution provisions, which the previous government never used—what are they for, in the bill, if not for this?—or use the Clean Air Act.

On the narrow issue about limits of quantification that I described, we suggested in our November 25 brief a very specific fix for that, modelled on what was done in the Stockholm POPs convention.

We suggested some strengthening in the administrative duties so that departments actually do what they're supposed to do. We've suggested, for better information, that departments be mandated to have state of the environment and state of health reports, and we've suggested a change in the timeframe.

[Mark Warawa, Conservative, Langley, BC]

My apologies for interrupting. My question was on the procedure, not on your specific recommendations. The reports were very thorough. I appreciated reading them last night. I did have a good sleep, but it wasn't because of reading your report.

So that this review has a very positive outcome and is an effective review of CEPA, the procedure of doing this review, not the specific recommendations, is what I was hoping to get some advice on.

[Gordon Lloyd]

I think that unless the committee specifically nails down the areas it wants to look at, you will probably open yourself up to the same kind of free-for-all that happened last time. I think that review itself took almost five years.

If you don't want to do that, then I think you need to say that you heard from witnesses, that these are the seven, eight, ten things you're going to look at, and that you're not going to look at anything else. That's my suggestion.

[Mark Warawa, Conservative, Langley, BC]

That's helpful. Thank you.

Ms. Laurie-Lean.

[Justyna Laurie-Lean]

As I mentioned, in terms of actually changing the act or looking purely at where to change the act, we're really hesitant, because we think the implementation part is where there seem to be problems. As far as I know, this committee is not confined to only considering legislative change. I think it would be helpful if the committee itself looked at some of these broader questions of implementation and gave thought to where it could advise the government, maybe on non-legislative changes if it wished, and could maybe provide some clarification as to what the intent of the act was. That might help guide you further to where you want to make or not make legislative changes.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

The second half of my question is regarding your recommendations, and again I found them helpful.

There seems to be consensus among you as presenters about dealing with the issue of “toxic” and what that means or how it could be interpreted. There was a recommendation that they be called “substances on schedule 1”, yet that still left some confusion. Some substances could be toxic and some may not be. This seems to be a common concern in CEPA 1999. Could you give more suggestions on dealing with that issue of the list?

[Shannon Coombs]

Okay, I'll start off.

In our brief, I think we made it quite clear that schedule 1 is not a list of substances to be avoided. The list is designed to ensure that a risk management strategy is in place for the substances. So what we're looking for is contextual wording, or a brief synopsis of the risk assessment that was completed on the substance, so there is context, so people can see the link between, for example, ammonia and waste-water effluent. So there would be a direct link, instead of just having ammonia on the list.

We had suggested that you call it “schedule 1” to make it very simple, or you can call it “a list of substances to be managed”, because that's truly, in fact, what it's designed to do. Those were our suggestions.

[Mark Warawa, Conservative, Langley, BC]

Is there a consensus on that?

[Gordon Lloyd]

I think the only thing I would add is that the term “toxic” is a loaded term. When the public, and also people in companies that purchase from other companies, see the term “toxic”, it has a really negative connotation, and they think toxic equals banned. Some things on schedule 1 are like that--they are banned--but a lot of them aren't. They're supposed to be managed in a fairly narrow area where the risk has been identified by the risk assessment, but in other areas they're not an issue. Shannon talked about that in terms of ammonia. So the problem with the word “toxic” is that it has that loaded connotation that is maybe appropriate in some cases but carries a stigma in other cases where it's not appropriate.

And it's not just the public. Our members are worried about that from a public perspective, but they're just as worried about it from the perspective of the people in other companies who buy from them. So I think getting away from that loaded word would help. There are a variety of solutions you can use, whether it's “substances to be managed” or “substances on schedule 1” or “substances that meet the criteria of section 64”. I think there's a bit of ambivalence about that.

[Mark Warawa, Conservative, Langley, BC]

Thank you.

[The Chair, Conservative, Bob Mills]

Mr. Rodriguez.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chair.

I have two questions of clarification, since several of my questions have already been answered, but before that, I have a general comment to make. In listening to you, I had the impression that the few changes that are indeed required are very clear. I have the impression that the legislation is not very restrictive for your industry. Is this true?

[Shannon Coombs]

For our industries, because we're subject to two pieces of legislation, it was a bit daunting and overwhelming. But we now have a process in place where NSNs can be used for a variety of things. If your substance gets an NSN and you use it in a variety of substances, under the Food and Drugs Act we have that risk assessment, which is quite rigorous. Then the Food and Drugs Act regulates the end product.

For us, for our members to sell those products to consumers, we believe there is another layer of protection for Canadians and for the environment. We're pleased with the processes in place that impact our companies directly with respect to marketing and bringing new technology to Canada.

[Justyna Laurie-Lean]

Our industry is primarily regulated and controlled by provinces. We lie within the provincial jurisdiction. CEPA is a new addition, and the impact has been growing. It's very difficult to say at this stage how much of the perceived excess burden has been due to implementation or to teething pains, if you like.

A lot of the big concerns lie where there is actual conflict with provincial requirements, where there's just sufficient difference between the federal and the provincial that you're in effect prevented from complying with one if you comply with the other, or where you have a tremendous cost that is not serving any purpose.

As we see the growth of the impact of CEPA, we feel that those are some of the areas that need particular clarification. At this stage, we find it difficult to say whether that will go away by itself, as it's implemented and as people learn how to use it properly, and to what extent it flows out of the legislative structure.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

From the industry's perspective, how does the Canadian Environmental Protection Act compare to similar legislation in other industrialized countries?

Are you able to compare the type of restrictions imposed in this act to the types of restrictions imposed on similar industries in other industrialized countries?

[Justyna Laurie-Lean]

It's very difficult to compare legislative structures. Most countries are unitary countries that don't have the federal-provincial differentiation. You can only really compare partially with the U.S., but mostly with Australia, which is the closest country. Most of our competitors are in third world countries. Saying that Canada's requirements are more stringent than some developing countries isn't saying very much, or you can't really conclude anything from that.

Australia tends to have a very different structure. Most of the actual stringency requirements flow out of provincial requirements rather than federal. The federal is evolving over time. It's really difficult to say how some of it is going to develop in the future.

[Gordon Lloyd]

From our industry's perspective, a couple of the areas we pointed to where we would like to see improvements actually do relate specifically to where we find the act either restrictive or wasteful. On the idea that, like Australia, we have an ability to recognize and adopt assessments in other countries, if that were implemented in our legislation we think it would make it more efficient and less restrictive, so to speak.

On the requirement that these limits of quantification have to be developed for things that are put on the virtual elimination list, even if it's only for something that's a contaminant, if it's there at irrelevant levels in a product, I think that's overly restrictive. Now, that hasn't hit us yet, because so few things have been put on the virtual elimination list, but eventually that will be a problem.

As we get more into working with the provinces as we deal with climate change and/or clean air, if that's done under this legislation, the problems in the equivalency provisions in the legislation will start to cause great restrictions. The kind of thing that Justyna was talking about will really start to hit.

[Shannon Coombs]

Just quickly, on pre-market....

I'm sorry, go ahead.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

I have one last question to ask you. What are you doing to limit the use of substances that are classified as toxic? I know that you are disputing this classification, but are you making considerable investments in research and development to replace certain substances? For example, is a portion of the industry's profits and revenue invested in research and development to change the composition of certain products and to reduce the use of chemical substances?

[Shannon Coombs]

I'll just answer it briefly, Mr. Chair.

For the Food and Drugs Act sector, a lot of the substances that have been on schedule 1 and are of concern to us, for example ammonia, aren't toxic. So we continue to use it in our products because it's not toxic in glass cleaner, for example. It's toxic in waste water effluent.

With respect to other substances that we may know going under risk assessments, companies try to provide the best science that's available to Health Canada and Environment Canada during their review processes. But if there is a time when a substance may become CEPA toxic in consumer products, of course the companies would reformulate and take that into consideration.

[The Chair, Conservative, Bob Mills]

Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chair.

I'll start off with this question. Basically, there's been a common theme with all the witnesses we've seen. In this review, I think what we're looking for is a focused, effective, and efficient review of CEPA. We don't want to tear it apart and rebuild it--at least that's my understanding. Most of what we've heard as a very common theme is that the act essentially is a good act. What it lacks is implementation and enforcement, and a bit of clarity.

Notwithstanding the very few suggestions that you've made, would you agree that the act is essentially a good act?