Thank you, Madam Chair, for inviting us to appear before the committee this morning on the subject of the Canadian Environmental Protection Act.
We provided the committee with three documents, and we'll be happy to answer any questions regarding any of them during the course of the proceedings this morning.
Let me begin with some overarching principles.
Given the dramatic increases in the release of toxic substances into the environment that we set out in our material, members of the standing committee must decide whether CEPA is meeting the interests of the Canadian public in protecting human health and the environment from toxic substances.
If you conclude that the act bears significant responsibility for failing to stem the ever-increasing levels of releases of toxic substances, including cancer-causing and related agents, then CELA recommends that at least the following principles should be considered by the standing committee.
First, impose mandatory obligations on the government and reduce government discretion in the three key areas of the statute that address toxic substances, parts 3 ,4, and 5 of the act respecting information gathering, pollution prevention, and control of substances. Second, accentuate the role of the public at every stage of the process, from access to information, to notice and comment, to reviews and appeals, and to enforcement. Third, establish that the burden of proof rests with industry to establish the safety of existing and new chemicals. Fourth, establish as a fundamental principle that government must require examination of alternatives and substitution of safer substances as an integral part of that decision-making process, where appropriate.
There are a number of components of the statute that I want to speak to this morning. I'm going to begin with information gathering.
The national pollutant release inventory has been instrumental in providing the government and the Canadian public with basic information about releases of substances that may pose problems to the environment and human health. However, there have been key problems with the program, some of which were mentioned before the committee in March. I'm briefly going to provide a short list this morning.
First, the NPRI exempts certain activities from reporting requirements.
Second, the NPRI regime predominantly requires the reporting of releases and not the uses of substances. This particular limitation caused the Ontario legislature to enact its own law, the Toxics Reduction Act in 2009, specifically addressing reporting on and reducing the use and creation of toxic substances.
Why did Ontario do that? In my respectful submission, it's because Ontario is one of the highest emitters of toxic substances in North America and the number one discharger in Canada, as found by the government itself in 2008.
Third, the NPRI threshold reporting levels are still too high. As you know, there are 10,000 tonnes per year for any particular substance, depending on the substance. That particular limitation caused the City of Toronto to promulgate its own bylaw in 2010 requiring businesses to report annually to the city medical officer of health on the release and related activities of approximately 25 priority substances above thresholds of 100 kilograms per year—not 10,000 tonnes per year.
Let me speak briefly about pollution prevention.
The minister's authority under the act to require persons on notice to prepare and implement a pollution prevention plan has been used too infrequently and in relation to far too narrow a number of industrial sectors or companies to constitute a systematic response to the problem of increasing releases of toxic substances. This also contributed to Ontario's decision to enact its own toxics reduction law in 2009.
I should also note that the pollution prevention approach in CEPA has generally focused on pollution control or abatement of releases rather than true pollution prevention, which is defined as material or feedstock substitution of safer chemicals, product redesign or reformulation, and changes to manufacturing processes.
I'm going to speak briefly about assessment and control. With respect to this issue, the scientific assessment process for determining that a substance is toxic has been viewed by some as the true Achilles heel of CEPA, as it has led to just 132 substances, or groups of substances, being listed in schedule 1 over the last quarter century.
I'm going to focus on three areas of concern with respect to this issue: existing substances, new substances, and virtual elimination authority.
With respect to existing substances, the categorization and, later, the CMP process for examining existing substances, although important in providing improvements over what we had previously, have developed their own problems at the assessment and regulatory control stages.
These include the following: first, health effects assessments during categorization did not explicitly require consideration of endocrine toxicity or neurotoxicity; second, categorization largely relied on existing data; third, the CEPA process applied very stringent criteria for determining whether substances were persistent, bioaccumulative, or toxic, and if CEPA had applied criteria from other jurisdictions, more chemicals would have been considered for assessment under CEPA; and, fourth, the risk management options for chemicals deemed toxic under the CMP process and placed in schedule 1 generally have not focused on phasing out or eliminating such substances or using safer alternatives.
Briefly, with respect to new substances, I'll make just two points. First, data required under the act and regulations are not sufficient to the task of evaluating new substances, and we set this out in detail in our PowerPoint presentation. Second, there is a lack of adequate authority under the act with respect to the role of the public in consideration of new substances.
Finally, with respect to virtual elimination, there's only one substance on the virtual elimination list. That's one substance in the last 16 or so years. The act's definition of “virtual elimination” focuses on minimizing release rather than eliminating the production and use of toxic substances. As a result, it has simply become another pollution control measure, rather than an instrument of pollution prevention, which was its original purpose.
In summary, there is a need for reforms to the information-gathering, pollution prevention, and risk assessment and risk management processes under CEPA. We list some of them in our conclusions and recommendations, and also in our PowerPoint presentation. We would submit that revisions to key principles and provisions of the act are warranted if the objective of reducing and eliminating toxic substances in Canada is to be achieved.
As this committee knows, these and many reforms were recommended many years ago by this particular committee, your Senate counterpart, and also by members of the public, but no action in terms of amending the statute has occurred to date. Doing so at this time would serve as a true law reform model domestically and also beyond Canada's borders.
I'd be happy to answer any questions at the appropriate time. Thank you.