Environment Committee on May 19th, 2016

[Darren Praznik]

I want to start by saying we've been very engaged in this for over a year. In fact it was Mr. Brian Masse, the member of Parliament for Windsor West, who first reached out to us to work with us. Our industry recognized that there was a problem with these plastic microbeads. They're used as an exfoliant in products to remove dead or dry skin. It was recognized that they were not being caught in the waste water system, and so our member companies, the vast majority of which are in personal care products, committed fairly quickly to removing them from those products.

When we met with Mr. Masse, a couple of things were important to us as an industry. We wanted to have a regulation for two reasons. One was that we didn't want those who might not be part of our association to still be able to import them, or if someone was importing a low-cost product from outside of the country and didn't know, there had to be a way to stop that.

Secondly, there are those who counterfeit products. There are a lot of counterfeit products on the market, and we wanted to ensure that there was a regulatory authority in place that would help to get those counterfeit products off the market. We wanted regulation. We also wanted it to be federal and not provincial, because our products are sold everywhere in Canada. We didn't want to have different regulations in Ontario and Quebec and Manitoba, etc. That would make it impossible to implement. Provinces also don't have the enforcement vehicles to go and check products, whereas the federal government does.

The third concern we had was that whatever that regulation was, it had to be consistent internationally. This issue was first addressed legislatively in the United States. A model called the Illinois model was developed. It included a definition, with periods of time to remove products in different classifications of products. Some were in drugs. Some were in cosmetics. We wanted a common definition and a common time frame so we could implement it universally. Nothing makes it more difficult to implement than when you have different, maybe contradictory, definitions. Again, we're making products not just for Canada or Ontario but for international markets.

That's what we asked for. We made our case to Mr. Masse. He brought a resolution to the House of Commons. We worked with the office of the federal Minister of the Environment at the time. We had outreached to the then Liberal caucus. I think because we were very supportive of it, there was a very rare occurrence in the last Parliament: there was a unanimous decision to pass that resolution. That led to the Minister of the Environment beginning the process, under CEPA, to put in place a regulation. That process is well advanced. I think they've worked out all of the detail and it's working through the process. The beauty of that is we will get a Canadian regulation consistent internationally that will be enforceable.

In terms of our member companies, they are all in the process of either being out of them or in the process of getting out of them. I think this was great co-operation by everyone.

[François Choquette, NDP, Drummond, QC]

Thank you very much. I'm happy to hear that.

My next question is for the representatives of the Canadian Environmental Law Association. I would like you to summarize your position on the

risk-based compared to focusing on the hazard of a substance.

Which of the two positions do you espouse and how do you think the approach should be improved? Our current approach is based on risks rather than on hazards.

What are your suggestions?

[Joseph Castrilli]

In our respectful submission, it is risky to rely on a risk-based approach in regulating toxic substances in Canada. It is true, as the industry members have said, that CELA is based on risk, and risk is a function of hazard times exposure. I think I understand the industry position to be that if there is no exposure, there is no risk. I think the reality of the situation is that many hazardous substances available in the Canadian environment thought to have no exposure have proven to be very available in the environment. Using a hazard-based assessment approach that assumes there will be exposure, in our view, is more precautionary than is a risk-based approach, and that's essentially what has gone on in the REACH process in Europe.

Given the levels of toxic substances we are seeing being released into the environment, the data for some of which we've provided in our material today, in our view there is no alterative for Canada but to move away from a risk-based approach and move toward a hazard-based approach in the future if we're going to begin to reduce the levels of increases we are seeing currently in the data.

[The Chair, Liberal, Deb Schulte]

I'm going to have to cut that six minutes there.

I want to make a comment to those of you on video conference. If you want to respond to something, wave your hands so that the questioner knows you might have something to say about what's being discussed. It's up to them to choose whether they give you the floor, but that way we'll know that you want to respond. It's very hard for us to get a sense of that when you're on video conference.

We'll move to Mr. Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you to our witnesses, both by video and in person. I appreciate the expertise you're all bringing to this. I appreciate the experience you have with CEPA as a regulatory regime.

I don't think any of us takes lightly the responsibility of engaging in this initiative. It obviously has major economic impacts as well as human health and environmental impacts, and we have to evaluate over the course of years what needs to be improved. Even if one accepts that the regime has performed well—and I think to a degree that is open to question—I think we need to look at how we can augment, or how we can clearly become global leaders in the field of chemicals management and toxics prevention or reduction.

I'd like to address my first question to the representatives from the Canadian Environmental Law Association. The issue of incorporating environmental justice principles into CEPA has been raised. I wonder if you could provide your thoughts on how that would best be done. There's this low-hanging fruit around preambular language and the purpose of the statute. In the context of a sophisticated regulatory regime where—and forgive the analogy or metaphor—there are many apples in the cart, I wonder how you incorporate that kind of notion.

[Joseph Castrilli]

The issue of environmental justice was raised not only today by you, but also in the testimony in March, so we've had an opportunity to think about it.

Our understanding of the position of the industry representatives at the time was that, in their view, such considerations were already said to be built into the act. Now, we don't agree that this is in fact the case, and is certainly not in the wording of the statute itself. In our view, if the process of incorporating environmental justice considerations is already taking place in the regime, then it would be a very simple matter to add it to the statute so there is correspondence between what is happening behind the scenes and what one sees when one reads the legislation.

To address specifically how to do it, one of the precedents we have had in Canadian law for quite a number of years now has been the provisions in the Pest Control Products Act that begin to address the issue of what needs to be considered, not only during the course of applications for new chemicals but also in re-evaluations or special reviews. One place to look for a precedent on where to start would be the Pest Control Products Act itself.

I think as a principle not only does it need to appear in the declaratory portion of the statute, but it also needs to be infused throughout the provisions. It needs to be part of the purpose and part of the working statutory language as you work your way through the statute itself. Also, of course, it needs to be reflected in the regulations that would apply to the particular areas of concern.

[William Amos, Liberal, Pontiac, QC]

As a follow-up, would the Canadian Environmental Law Association—and, of course, I would open this question to any group across Canada, including non-governmental groups that have spoken about this—be willing to provide written suggestions as to how that infusion in the core of the statute would best be achieved? That would be most helpful, I think, because it's not an uncomplicated exercise.

[Joseph Castrilli]

We would be happy to do that, sir.

[William Amos, Liberal, Pontiac, QC]

Thank you.

To both of the industry groups here, I'd like to ask about the ability of CEPA to protect the public and the environment from cumulative effects. There have been a number of concerns raised by groups across the board, indicating that the statute itself is not adequate to the task. I wonder how you would respond to that.

[Beta Montemayor]

From our perspective, we believe the statute is sufficiently robust. It is a risk-based system. As I mentioned previously, when we do a risk assessment it inherently takes into account cumulative exposure considerations and multiple exposure considerations. It looks at the availability of all evidence, and you look collectively at how that is going to be integrated into your decision-making model. A risk-based approach allows those considerations to be taken into account.

I would submit that the statute itself is already sufficiently robust and specifically designed to account for those circumstances. There are many examples where cumulative exposure does get integrated into the decision-making matrix.

[William Amos, Liberal, Pontiac, QC]

Ms. Coombs.

[The Chair, Liberal, Deb Schulte]

I'm sorry, but you're over six minutes.

Mr. Fisher is next.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

I'll start with the topic of CMP because I'm interested in the balance between industry and environmental organizations. We've seen that industry says that it's efficient, it's effective, and that their chemical management policies are robust, and that other jurisdictions should emulate them, and wording like that. I'd be interested in CELA's responding to the current CMP.

[Fe de Leon, Researcher, Canadian Environmental Law Association]

I think CMP was needed when the results of categorization were completed back in 2006. I think the government has done a fantastic job of trying to move through risk assessments in the context of the CMP focus.

I think where it has failed to some degree is ensuring that the pillars of CEPA—with respect to achieving pollution prevention and making that an ultimate goal of the program—are completely realized in the context of the CMP. That has yet to happen.

While a lot of effort and resources have been put into conducting risk assessment and collecting data through the provisions included in CEPA, the results in terms of prohibiting and eliminating the worst chemicals haven't yet been fully realized. I think this is where we're coming from as an organization, as there needs to be some sort of review of the government's commitment to upholding those important pillars that CEPA claimed in 1999 that it would try to achieve in 2000.

In the context of moving forward on assessment, I think it has done that. It will achieve that by 2020, but the challenge is how good are the risk assessments or risk management that is put in place. If we're looking back at some of the data that CELA has pulled together from the CEC on the persistent bioaccumulative toxic chemicals, the increase has been significant from 2006 to 2012. That should be a signal to where some of the efforts can be placed.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

It looked like the other Darren wanted to say something quickly, and because I like his name so much, maybe I'll give him just 15 or 20 seconds because this time is going to get eaten up.

[Voices]

Oh, oh!

[Darren Praznik]

I want to say you got to the heart of it. There is a fundamental difference between a hazard-based system and a risk-based system. It sounds great to say that we don't want any hazards in our environment, but every single substance out there has the potential to be a hazard.

If you just base a system on hazard, you could always find a reason not to have it there. That's why every hazard has to have the context of exposure to know what we're managing.

It is a fundamental difference, and every system that has worked in the world and been effective has been based on risk and not hazard. It is important, and it is a fundamental difference. I'll just say quickly that if you look at the cup of coffee you may drink, there are many substances in it that are carcinogens, but we wouldn't say that we're not going to drink coffee. We have to have some context to it.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

I have to have coffee.

I'm going to jump down the list quickly here. I'm not even sure who I want to ask this question of, but I think I want to ask Beta. Does CEPA adequately take into account vulnerable populations as communities of greater risk?

I'm thinking about an example, and I might get this wrong, but mercury is much more prevalent in northern communities. I'm not sure if that's fish, or if that's environment, or if that's man made. Who knows, it could be light bulbs in the garbage can, but do you think CEPA takes that into account?

[Beta Montemayor]

Absolutely. I think what CEPA does is provide for an opportunity to look holistically at how a chemical behaves. You look at it from the start. How does it get into the environment? What happens to it in the environment? How does it get through the body? How does your body process it? It looks at that without prejudice in terms of whether somebody is male, female, or a child. It takes that into account when there are specific concerns that are identified.

Let's say you know how the molecule may behave. If you think the child is going to have a greater likelihood for exposure, you take that into account in your risk assessment, and you make that the driver of the critical effect that you're trying to regulate. It does take that into account very stringently and, I think, very robustly.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Do I have time for a short snapper?

[The Chair, Liberal, Deb Schulte]

Yup, you have one minute.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Finished personal care products get regulated by the Food and Drugs Act, but the ingredients fall under CEPA. For industry, what kinds of challenges does this pose?

[Darren Praznik]

If I may say so, it has actually worked very well, because you have the review of substances, the general review of substances for human health and the environment, and where that has affected our formulations it has been translated by the people at Health Canada into things like the cosmetic ingredient hot list. If CEPA has produced a recommendation that a substance be prohibited or restricted in a personal care product, that is showing up on the hot list, and then it's prohibited or restricted. There has been a very good amalgamation of the work of both. It has been very effective that way.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Okay.

I suppose I'm done. Can I have 10 more minutes?

[The Chair, Liberal, Deb Schulte]

No.