Environment Committee on June 7th, 2016

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

I call the meeting to order, please. Welcome.

We have a few people absent, including one of our witnesses. As we get under way, we're hoping they're going to join us.

Today that we're back on the topic of CEPA. We want to welcome the Mining Association of Canada. We have with us today Justyna Laurie-Lean, vice-president, environment and regulatory affairs. Thank you for being with us here today.

We also have, by video conference, from the Canadian Association of Petroleum Producers, Sherry Sian, manager of environment.

Sherry, if you're all right with this, we'll start with Justyna and then we'll go to you.

We will do 10 minutes. I will let you know when you have one minute to go so that you get the the idea that you have to speed it up if you're a little behind. I'm going to let you know when the time is up. I won't actually stop you at that second. Just finish that sentence, and then that will be it. That's the way we'll go.

We have our other guest here now. We welcome Andrea Peart from the Canadian Labour Congress. She is the national representative for health, safety, and the environment.

Thanks to all of you for being here. We'll get started with Justyna.

[Justyna Laurie-Lean, Vice-President, Environment and Regulatory Affairs, Mining Association of Canada]

Thank you for this opportunity to present the Mining Association of Canada's views on the Canadian Environmental Protection Act. Since you recently heard from my colleague Ben Chalmers, I will not repeat a description of who we are.

CEPA is only one of several federal acts that impact our industry, and nearly every part of CEPA affects us. Our members produce raw materials and are also end-users of chemical products, including several recycled post-consumer and post-industrial kinds of waste, such as electronic waste and spent catalysts.

Assessing and managing the potential risks of the full range of substances that are subject to CEPA is highly complex. As you know, the CEPA definition of “substance” is very broad and is not limited to individual or synthetic compounds. It does not correspond to the everyday use of the word “chemical”. The CEPA definition of “toxic” also involves a careful combination of potential hazard and exposure considerations rather than the everyday meaning of the word.

Applying CEPA to the raw materials we work with, particularly metals and non-metallic elements, has to take into consideration that these are naturally occurring constituents of the environment. They have unique ways of interacting with the natural environment and with living organisms. Their concentration in water, soil, and rocks varies depending on local geology and climate. Their ability to be absorbed by living organisms is affected by the local environment. As well, some metals are essential to the health of humans, animal, plants, and micro-organisms. These characteristics of metals and non-metallic elements mean that simpler approaches to categorizing, assessing, and managing chemicals can be unhelpful.

Assessments are also more complicated because human activity unrelated to the production or use of an element can be a significant source of releases to the environment. For example, for some essential elements, agriculture and human waste can be the dominant sources of releases. Copper, which will be assessed under the third phase of the chemicals management plan, is a good example of a substance with highly beneficial uses, yet it nevertheless can present risks.

Copper occurs naturally in the environment and is a nutrient essential to the health of humans, animals, and plants. Its superior electrical conductivity makes it a critical material for electrification and energy efficiency as the world addresses climate change.

Copper does not degrade when recycled. Copper's value provides an incentive for recycling to such an extent that in 2014, the Canadian Electricity Association described copper theft as an issue that is dangerous, expensive, and a threat to reliability.

Copper is also a good biocide. This characteristic is being harnessed to reduce the spread of infections in hospitals by using copper-alloy touch surfaces.

While copper has these many positive characteristics, it can also have negative effects on aquatic ecosystems in some circumstances. The major uses of copper result in little release to the environment. However, intensive agriculture and animal husbandry, large urban centres, and some applications result in releases of copper.

The calculated total EU-15 releases of copper were dominated by agricultural uses and traffic. The wear of automobile brake pads is estimated to account for 20% of the total European releases of copper to water. Automotive and brake manufacturers are exploring alternatives that do not compromise customer safety.

According to Canada's National Pollutant Release Inventory, which tracks only facility releases and not diffuse sources, the facilities with the highest releases of compounds into water in 2013 were municipal waste water systems.

This short overview of copper is but one example illustrating the breadth of factors that need to be taken into account in assessing and managing chemicals.

We urge you to be thoughtful in reviewing the toxins management provisions of CEPA. These provisions apply to a broad range of substances, and imposing overly simplistic approaches may have unintended negative effects.

With regard to improving transparency, subsection 54(3) of CEPA obliges the minister to offer to consult with provinces and representatives of aboriginal governments when developing objectives, guidelines, or codes of practice, while broader public consultation remains discretionary. There is a similar lack of transparency observed in access to environmental data generated by federal monitoring. In our opinion, data generated using public funding should be publicly available unless there is a compelling reason for secrecy.

Our recommendation is that subsection 54(3) and similar sections of the act should be amended to require public consultation and the publication of peer-review comments.

The government should also be encouraged to make any environmental monitoring data generated or funded by the federal government publicly available within a reasonable time.

In your review of CEPA, witnesses have mentioned examples from other jurisdictions. Our members have direct experience with Europe's REACH model, and some MAC member companies are members of REACH consortia. In these cases, arrangements have been made, or are being made, to provide Canadian officials with all the data generated.

In looking at REACH, you need to look at all relevant aspects. For example, REACH requires consortia of industry to collectively generate assessments that cover the full value chain of each substance. REACH supported this requirement with a comprehensive framework for sharing the cost of the assessment among all companies in the substance value chain. Moreover, Europe's economy is some 10 times that of Canada's and therefore has much greater capacity to absorb the high cost of REACH.

Already our sector has encountered a few instances in which suppliers of niche products used in emergency response decided that the Canadian market is too small to justify the CEPA compliance burden.

Our recommendation is that in looking at examples from other jurisdictions, you consider the entire context, including the relative market size.

Now I'll turn to the National Pollutant Release Inventory.

MAC has been involved in and supportive of the NPRI since its creation and sits on the multi-stakeholder NPRI work group. The NPRI is much more comprehensive than other inventories and requires reporting for many more types of facilities, some of which are large sources of some pollutants. For example, comparing the reporting of releases to water of copper and its compounds, nearly three-quarters of releases would be missed if the NPRI applied U.S. Toxics Release Inventory rules. The NPRI also includes criteria air contaminants and has lower reporting thresholds for more substances.

The NPRI works through a published notice based on consultation rather than legislated rules, which has enabled the program to evolve in response to experience and users' needs. The NPRI secretariat has prepared some excellent presentations that explain this evolution over time.

Some of the evidence presented to this committee appears to have overlooked the differences in the comprehensiveness of the two inventories and the impact of the NPRI evolution on trends over time. I would encourage you to seek further details from the NPRI secretariat.

While MAC would caution against restricting the NPRI's flexibility through legislation, there are improvements that we would encourage you to recommend. In particular, the NPRI would greatly benefit from increased informatics support, as would other government data management programs. Allowing civil servants access to 21st century information management and communications tools would greatly increase their effectiveness and their service to the public. Better tools could also significantly reduce the administrative burden on reporting facilities, while at the same time reducing data entry errors.

Our recommendation is that you should be cautious in making any amendments to sections 48 through 50 of CEPA, but you should encourage the government to allocate additional resources and particularly information technology support to enhance the NPRI.

On leading by example, as mentioned by one of your first witnesses, part 9 of CEPA was created to enable the filling of the regulatory gap created by the exemption of federal operations and federal land from provincial oversight. Today, 17 years later, that gap remains, and it has been exacerbated by the elimination of the requirement for environmental assessments of projects for which the federal government is the proponent. As you discuss the adequacy of provincial oversight of provincially regulated industries, I would urge you to first consider whether the federal government is demonstrating leadership in its own jurisdiction.

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

We're going to hear from all the witnesses and then we'll move to questions, so we'll hold our questions until the end.

Next up we'll have Sherry Sian, who is with the Canadian Association of Petroleum Producers.

Thank you, and welcome. Please begin.

[Sherry Sian, Manager, Environment, Canadian Association of Petroleum Producers]

Thank you.

Good morning, Madam Chair, and members of the committee. Thank you for inviting me to join you today to share our industry's views during your review of the Canadian Environmental Protection Act.

My name is Sherry Sian, and I am manager of environment at the Canadian Association of Petroleum Producers. CAPP represents companies, both large and small, that explore for, develop, and produce crude oil throughout Canada. Our member companies produce about 85% of Canada's oil and gas resources, while associate members provide services in support of their efforts.

CAPP's vision is to enhance Canada's prosperity by the responsible growth of Canada's upstream oil and gas industry. Socially responsible development and sound environmental performance are prerequisites for acceptance of this development.

While developing our oil and gas resources for the benefit of Canadians, our industry also releases, produces, and uses substances that are subject to CEPA and other provincial and territorial regulations that manage associated risks to the environment and to human health. In short, upstream oil and gas is heavily regulated at multiple levels. Nevertheless, we are committed to responsible development, which requires us to understand the risks of these substances; identify the stages in upstream activity where these risks exist; implement systems to detect, assess, manage, and monitor those risks; and show, through transparent reporting, the effectiveness of our management efforts.

CEPA supports the responsible development of Canada's oil and gas resources by providing tools for the prevention of pollution and for the protection of the environment and human health. To that end, CAPP participates in many multi-stakeholder processes dedicated to the implementation of CEPA. Our industry is active in federal consultative processes, such as the NPRI multi-stakeholder work group. We also engage in provincial and territorial multi-stakeholder processes—such as, but not limited to, Alberta's Clean Air Strategic Alliance—that play a supportive role in achieving CEPA outcomes.

We believe CEPA is a critical element in Canada's global leadership in environmental performance and can provide a valuable bridge between federal, provincial, and territorial initiatives.

Today our comments will focus on modernizing CEPA through targeted refinements to improve more coordinated and collaborative achievement of outcomes under the act.

I'd like to start off with a bit of a discussion about some key definitions and what we view as their implications in terms of CEPA implementation.

CAPP does agree with Environment and Climate Change Canada's view that the meaning of the term “toxic” under CEPA departs from commonplace understanding. The implication of this difference is that the risk is assessed on the basis of both the intrinsic hazard of a substance and the potential exposure of Canadians and the environment. This approach poses challenges to risk-ranking and hinders the effective and efficient prioritization of management actions.

The broad definition of “substance” in CEPA is equally problematic. While the definition clearly enables flexibility, the scope also captures naturally occurring substances, and these substances may be released, not created, by human activity. In this case, CEPA cannot fully meet its objectives, because naturally occurring substances cannot be fully eliminated. Any management emphasis on the production, import, and use of substances is potentially rendered less relevant.

The more salient issue is the properties of these substances and how best to manage them, given their interaction with their receiving environment. A place-based approach, such as that enabled under instruments like Alberta's land use framework—and we're starting to see other infrastructure built around cumulative effects assessment and management in B.C.—is well suited to consider natural variability, the resilience of the receiving environment, and factors affecting bioavailability. There is a great opportunity for CEPA to play a role in terms of evidence-based decision-making. As we all know, fiscal, technical, and administrative resources for environmental management are finite.

Wherever possible, modernization should improve data standardization, make data collection more efficient, automate data integration among federal, provincial, and territorial platforms, help to prioritize pollutants and emission sources, provide a focus on cost-effective opportunities for emissions reduction, and offer a robust picture on status and trends.

We believe that CEPA has some fundamental elements that support evidence-based decision-making through the chemicals management plan and the National Pollutant Release Inventory. The data collected through these tools support evidence-based decisions. Currently our industry also provides data through a multitude of other avenues, such as project assessments and the monitoring and reporting obligations embedded within our regulatory approvals. We believe there are many opportunities for process improvement to collect data better, faster, and cheaper, and to improve the return on investment through the design of more focused policies and programs.

Many positive outcomes could be realized through a more balanced apportionment of resources between assessment functions and management aspects of CEPA, which would help to accelerate reduction and/or elimination efforts, minimize health risks, promote the development of cleaner technologies, use energy and materials and resources more efficiently, minimize the need for costly enforcement, limit future liability, and avoid costly cleanup in the future.

We believe that these outcomes are good for the government and good for industry. By focusing on those tools that support cost-effective efforts, we can realize greater public acceptance for the responsible development of natural resources in Canada.

To that end, we also think that some targeted refinements would be quite helpful in terms of supporting coordination under CEPA.

CEPA includes provisions that allow the federal government to enter into equivalency agreements with provincial, territorial, and aboriginal governments. These arrangements help to enable tailored, place-based responses to address constraints. As a case in point, that could be infrastructure for tie-ins that might be important to facilitate emissions management and capitalize on strengths where you may have regional networks, such as for the purpose of monitoring, as in joint oil sands monitoring. Together, these types of approaches can support the effective and efficient delivery of CEPA outcomes.

We see an appetite for pursuing these equivalency agreements. However, the process is a lengthy one, which cannot begin until all regulatory instruments have been completed. Ideally, CEPA could offer more general guidance on key elements of pollution prevention and management programs to safeguard human health and the environment. This approach could then inform the provinces and territories in their regulatory design efforts in order to expedite process to affirm equivalency; avoid regulatory duplication; allow federal, provincial, and territorial regulators to focus on areas of strength; and provide assurance that outcomes of CEPA are being met.

Additionally, we also see CEPA playing a very important role in terms of driving performance improvement, including for our industry. Our industry continues to make improvements to better use publicly available data to inform our understanding and perception of our own performance. We are increasingly using this information and third party research on management gaps and risks to set priorities for research and innovation.

We undertake this work in conjunction with several different organizations, including the Petroleum Technology Alliance of Canada, the BC Oil and Gas Research Innovation Society, and Canada's Oil Sands Innovation Alliance. These organizations draw upon the knowledge and expertise of leading scientists to fill knowledge gaps and help to prioritize the most meaningful opportunities for clean technology, deployment, and practice innovation.

In summary, CEPA provides a solid foundation for evidence-based decision-making through an appropriate balance of assessment and management of risks to environment and human health while driving innovation to improve environmental performance. The issue is not only whether improvements can be made to CEPA but also whether CEPA can be used more effectively to improve coordination and collaboration among the various jurisdictions.

To that end, CAPP believes that CEPA should surgically augment existing tools to prevent pollution and protect the environment and human health while providing a coherent picture of Canada's progress in fulfilling its international obligations.

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

I appreciate that you came in right on the button at 10 minutes. Thank you for that.

Now we're going to turn it over to Andrea Peart.

[Andrea Peart, National Representative, Health, Safety and Environment, Canadian Labour Congress]

Thank you.

I'm Andrea Peart. I'm with the Canadian Labour Congress, and we represent 3.3 million workers in Canada in nearly every industry and sector.

Overall, the purpose of the Canadian Environmental Protection Act is to ensure pollution prevention. While other federal laws apply to the human health risk of toxic substances and consumer products, CEPA is in fact the only federal law that explicitly requires consideration of broader environmental risks in addition to human health.

For Canadian workers, CEPA 1999 is a crucially important and terribly underutilized tool for addressing a broad range of risks posed to Canadian workers by toxic substances, including asbestos.

I really want to thank you for the ability to comment and present today. We want to focus on four very specific areas of improvement that we see as needed.

The first is strengthening NPRI reporting, primarily to protect Canadians from asbestos. Strengthening asbestos reporting under the National Pollutant Release Inventory would yield data on the presence of asbestos. Strengthened NPRI reporting is particularly important for disposal and waste industries, a suspected high-risk source of Canadian asbestos exposures in neighbouring communities.

Strengthening NPRI would also ensure that companies that fail to report, do not report on time, or knowingly submit false or misleading information would face penalties listed under sections 272 and 273 of CEPA.

These are all things that don't exist at this time. As a Canadian Centre for Occupational Health and Safety governor, I think there's often a gap between data collection on occupational and environmental that leaves Canadian workers unaware of the substances from which they're supposed to protect themselves. All of the best laws in the world, particularly on internal responsibility systems in workplaces, are unable to function at their desired level when they simply don't have information as to where asbestos is hiding.

We'd like to improve substitutions and chemical regulation by establishing an alternatives assessment. The chemicals management plan, which was established in 2006, addresses a wide range and manages the risk of the 23,000 chemicals that had never been assessed. I'm exceedingly pleased that we now have an announcement that the final third of the chemicals management plan will move forward. I know it's been a long haul, but even the fact that the final third will be complete in the near future will be a tremendous development.

Unfortunately, despite these chemical assessments, assessment hasn't translated into meaningful protections for Canadian workers. If I can give one very specific example, bisphenol A was assessed as toxic under CEPA. It was banned in plastic baby bottles, but there was absolutely no further regulatory response to other products that contained bisphenol A or to the workers exposed.

Workers' children exposed in the womb, which is the single highest point of vulnerability for bisphenol A, didn't benefit from any real regulatory response, despite the chemical being designated CEPA-toxic. We have people in areas, particularly women working in automotive plastics, who have very high exposures to bisphenol A, a substance that is CEPA-toxic, but this has not resulted in a substitution of safer alternatives and has not resulted in risk management strategies implemented at the workplace level.

To ensure and facilitate the protection of Canadian workers, CEPA should be updated to also require an alternatives assessment that will establish a process for identifying, comparing, and selecting safer alternatives to toxic chemicals. An alternatives assessment under CEPA can support Canadian companies on the successful phase-out of toxic chemicals through the phase-in of safer substitutes that will protect the health of Canadian workers. The alternatives assessment would also prevent the replacement of one toxic chemical with another equally toxic or even more toxic chemical.

A third priority for the Canadian Labour Congress is establishing precautionary thresholds for persistence in bioaccumulation that are consistent with the U.S. and the EU. The persistence and bioaccumulation regulations under CEPA set too high of a threshold for designating a substance as bioaccumulative. Both the EU and the U.S. have lower criteria than Canada for designating a substance as bioaccumulative, and we would like to see the amendment of the persistence and bioaccumulation regulations to establish precautionary thresholds consistent with the U.S. and EU for determination of persistence and bioaccumulation.

In Canada, it's true that the bioaccumulative criteria can be used to determine if a substance can be placed on track for virtual elimination, which we see as a very positive thing. However, the current system limits protections for a number of substances falling within the gap between the Canadian threshold and that of the U.S. and the EU. The lack of a harmonized lower bioaccumulation threshold in CEPA directly limits workers' ability to use the internal responsibility system to protect their health from certain chemicals found in products like flame retardants, heavy metals, and pesticide residues.

Finally, we'd like to see the modernization of triggers for a CEPA assessment to be in line with our trading partners. CEPA doesn't provide a clear approach when it comes to updating assessments to take into account new scientific evidence or to update worker exposure estimates, even if our trading partners make major changes. As a result, a number of assessments and the corresponding risk management strategies are outdated. This has an impact on worker protection in Canada.

Under section 75, CEPA would be strengthened by requiring that a decision to prohibit or substantially restrict any substance in another jurisdiction, perhaps an OECD jurisdiction, would automatically trigger a CEPA assessment of that substance. If the substance is also included on the list of toxic substances, a review of its risk management strategy and implementation would also be required.

A parallel provision currently exists in the Pest Control Products Act, which requires that approved pesticides be re-evaluated every 15 years and mandates a special review of any ingredient banned by another OECD country. We believe that CEPA would benefit from a similar trigger for assessments.

Those are some very specific recommendations that we have moving forward, but I think they reflect an overall broader need to modernize CEPA. Canadians' exposure to toxic chemicals used to be primarily related to chemical and industrial outputs, but over 30 years, we've seen a huge change. As an example, lead exposure used to occur as a result of being a welder or of living in Hamilton and other communities where smelting occurs. Now lead exposure comes from imported costume jewellery for children. As we've seen an increase in toxic chemical exposures from imported products, in many cases consumer products, and in many cases there are obstacles coming from the definition of “consumer product” in the Consumer Product Safety Act, it is CEPA that can offer a lot of improvements for worker protection and the protection of Canadians' health.

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much to all three of you for your insights and your suggestions on improvements.

We'll open the floor now for questions. We'll start with Mr. Gerretsen.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Thank you very much, Madam Chair.

I apologize in advance if I cut you off, because I'm very limited with my time. I'll start with Ms. Peart.

You talked about safer chemicals and the opportunity to change from one chemical to another in order to end up with a safer one. Can you comment as to whether you think that is happening right now, and give us your reasons?

[Andrea Peart]

It's hard to speak about absolutely every industry. Certainly substitution does happen in some industries and some sectors, but overall, we see there's a hurdle to substitution. A lot of companies are not thinking about the other options for chemicals. They're doing it in parallel. I think if there were an assessment process for other options, that would happen across all industries at once.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Thank you.

I'll go to Ms. Laurie-Lean.

This kind of follows on the idea of substitution. I know that copper, for example, has recently been substituted for pressure-treated material in wood, so there's a new type of pressure-treated wood that's coming out that is copper-based. Can you talk about the role copper is playing? Your handout has a lot of examples of what we use copper in, but is copper being used more frequently and being substituted for other chemicals?

[Justyna Laurie-Lean]

Not as far as I know. The industry itself, the copper manufacturers generally, do not encourage or do not actively pursue any dispersive uses. Much more the focus is on solid objects that have no dispersal and that can be recycled at the end.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

In that particular example I just gave, you wouldn't be able to recycle.

[Justyna Laurie-Lean]

No, because you're using it as a pesticide, essentially, preventing rot.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Exactly.

[Justyna Laurie-Lean]

But I'm not familiar with that particular example.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

You're not familiar with that particular example, but is it something that's happening more often, then?

[Justyna Laurie-Lean]

Not as far as I know. It would presumably be something like pressure-treated wood. Presumably there is some other act that assesses the alternatives, but I....

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

There used to be chemicals in wood to make it repel water. It's now being done with a copper-based product. In almost any major hardware store you go into, you'll find that. That's one way that we're moving in a different direction.

This kind of leads me to my next point. You talked about “toxic” being perhaps an inappropriate term. Previous witnesses have talked about “toxic” creating an inappropriate stigma. Can you elaborate a little bit on that?

[Justyna Laurie-Lean]

Our submission was not meant to imply that the term was inappropriate; it's just that it is not the everyday definition. You have to keep that in mind as you are discussing what to do with CEPA-toxics, in that it's a mélange of things. It may be the traditional high hazard or it may be something that simply has some hazard but has large dispersive uses, such as ammonia, for example. Ammonia releases to water, so it's more a volume aspect than a high instantaneous hazard.

I'm encouraging you to keep that in mind. Probably the best solution would be to use a different word so that people understand that it doesn't mean the same thing as the everyday meaning. We're not proposing that as a position; we're just cautioning you against it.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Fair enough.

I'll go back to what you said a minute ago about using copper because it can be recycled afterwards and can be reused. Copper is a finite resource, correct?

[Justyna Laurie-Lean]

We're not going to run out of it.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

We're not going to run out of it, but economically speaking, copper has seen its highs and lows. As soon as one mining operation shuts down, the price of copper seems to spike. It's finite in terms of how much is currently being extracted. About 10 years ago, one of the mines in South America shut down, and as a result copper ended up becoming quite a bit more expensive.

[The Chair, Liberal, Deb Schulte]

You have one minute remaining.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Okay.

Where are we now in terms of how much new product we're producing is from recyclables and how much is new copper?

[Justyna Laurie-Lean]

It's 30%.