Environment Committee on Nov. 22nd, 2016

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

We'll get started.

We don't have all of our witnesses here. We're missing one, but he may be down in security; I understand there's quite a lineup. Hopefully, he'll be here soon. There are four witnesses today in total. I think we can get started.

Welcome, everybody. I'd like to welcome our guests. Today we are having our academic panel for the CEPA review. We really appreciate all of you being here. To those on video conference, thank you very much.

I will introduce everyone. We have Mark Winfield, professor, faculty of environmental studies at York University. Welcome. We have Lynda Collins, associate professor, centre for environmental law and global sustainability, faculty of law, common law section, University of Ottawa. That's quite a title. We have Meinhard Doelle, professor, Schulich school of law at Dalhousie University. He's with us by video conference. We're going to start with you in a minute. We have Daniel Krewski, professor and director, faculty of medicine, University of Ottawa. I'm sure he'll be coming soon.

We have a couple of rules of engagement. We have 10 minutes for depositions. We're going to do all of those first. Then we'll start our rounds of questioning, which will be six minutes of questions and answers. I'm fairly strict. We have these little cards that I use, which is very hard for everybody. We have a yellow card that basically lets you know you're within one minute left. When a red card goes up, it means that you're out of time. I don't want you to end right away, but just finish your thought, and we'll end it at that point, if you don't mind. I do that to guests and to the committee members as well. Everyone is treated equally.

We have a full suite of members in the room, so we'll get started.

We'll get started with Meinhard Doelle, if you don't mind. Thank you.

[Dr. Meinhard Doelle, Professor, Schulich School of Law, Dalhousie University, As an Individual]

First of all, I would like to thank the committee very much for asking me to give this presentation and for embarking on this important task. It is one that I worry may be overshadowed a bit by other federal review processes, such as the review of the Canadian Environmental Assessment Act, the Fisheries Act, the National Energy Board Act, and the Navigation Protection Act.

I make reference to those not only to express my concern about this one being overshadowed, but also because I think there are important opportunities to integrate the reviews and to draw connections. There are certainly connections, and I will talk a bit about this in my 10 minutes. I see some potential connections between the Canadian Environmental Protection Act and the Canadian Environmental Assessment Act, for example.

I also think there are opportunities to learn more generally and to improve regulatory approaches across the board. Many of the reviews, CEAA being the exception, are really about improving the regulatory craft and regulatory approaches in the federal government. I think there are important lessons to be learned in any of these that can apply across the board.

I have a couple of other introductory comments.

First of all, I think for many of us who have tried to work with CEPA, one of the challenges is that CEPA is not an act we encounter regularly. When we encounter it, it is often in the details when we deal with specific regulations. I'm hopeful that other witnesses have worked with the legislative provisions you are reviewing in more detail, because for many of us it is an abstract act we don't often deal with.

In terms of my background, as was said, I'm a professor at the Schulich school of law at Dalhousie. My research interests are in environmental assessment, climate change, and environmental governance, including regulatory approaches.

I haven't focused on CEPA in particular as a research priority, so my comments will be fairly high level and they will focus on improving regulatory approaches in the context of CEPA.

The focus of my presentation will be on the regulation of toxic substances. I recognize that there other more specific areas in the act, but I will focus on the regulation of toxic substances.

My first point is that I think we need a more science-based approach to listing substances as toxic. A tremendous amount of work has gone on for the last 20 years in categorizing substances, and so on, but I don't feel we have a sufficient focus on science in determining which substances ultimately are listed as toxic and then regulated. Socio-economic and other factors should affect how a substance is regulated, not whether to list it or to regulate it.

I would suggest that the overall goal of listing any substance as toxic should be to minimize the risk in the short term, to motivate research for non-toxic alternatives, and to ultimately eliminate the toxic substance from use.

One of the key themes of my presentation is that too often regulatory approaches are static. They do not have built into them opportunities and motivation for continuous improvement. They often forget about what the long-term goal is. They often are based on what is practical and achievable at the time the regulation is designed, and the solutions that seem practical and achievable at the time are then enshrined over the long term.

I think we need to get past that. We need to design regulation with clear long-term goals, clear motivation for continuous improvement, and clear mechanisms to achieve that.

I think there should be clear legislative timelines and substantive obligations associated with listing a substance as toxic in the Canadian Environmental Protection Act. I think we can look to SARA for some guidance at least on the concept on that.

Those of you who are familiar with SARA will know that the listing process, even though it does have a political component, is largely a science-based process and there are actual legal requirements that are associated with listing a species under SARA. There are prohibitions that apply automatically. There are timelines within which responses in the form of recovery strategies and action plans have to be proposed and implemented.

If you translate that into the approach to toxic substances under CEPA, we should have a science-based listing and clear timelines for a mandatory regulatory action. There should be immediate control of the most significant hazards associated with the toxic substances listed, along with a clear commitment to continued improvement toward the elimination of the threat. We should recognize that the job of regulating and designing the regulation is not over until the threat is eliminated. I think that's particularly important in the context of the growing recognition of cumulative effects, whereas we often only view the effects of one particular activity in isolation. Also, there is the growing recognition of the precautionary approach as a basis for regulating toxic substances. Both of these points suggest that we need to recognize that the job of regulating these substances is not over until their use has been eliminated or at least the threat of release has been eliminated.

Regarding what can be done in the design of regulatory approaches to encourage progress towards elimination, if that is not possible, at the outset, we should create clear targets for regulators that are built into regulations as a possible element of that. We have had experience with that in Nova Scotia in the form of the Environmental Goals and Sustainable Prosperity Act where the government set clear targets for itself. That meant that there was a built-in incentive and requirement for the government to regularly review its regulation and the performance of its regulations to ensure that the overall targets were met. Other elements that would help with this idea of continuous improvement towards elimination of the risk and the threat include financial and non-financial incentives, such as clear timelines for the phase-out that can motivate those who are using substances to find alternatives, and on the financial side, if there are costs associated with using toxic substances, that can also provide incentives for phasing them out.

Full transparency not only for the listing process, but also for resulting regulatory responses is another key element. With respect to the section on new substances in particular, I would draw your attention to the recent AquaBounty decision by the Federal Court. I would suggest that decision is a clear indication that the new substance notification process, or new substance process, is not working and careful reworking of that section I think is important.

I would recommend that this is an area where I would draw connections to other acts that are being reviewed. The integration of the new substances section with the Canadian Environmental Assessment Act and specifically, when a new substance notification is associated with a new project, then the fact that a new substance is being proposed should trigger an environmental assessment. In my view, the environmental assessment would be much better positioned to engage the public to consider alternatives and to consider whether allowing the new substance into Canada is more appropriate than the current new substance review process.

[The Chair, Liberal, Deb Schulte]

I just want to let you know you have one minute left.

[Dr. Meinhard Doelle]

Okay, thank you.

For new substances that have broader implications, I would recommend that a strategic environmental assessment process, SEA, be utilized, but I want to be clear that by that I don't mean a cabinet directive. I mean by that a newly designed SEA process under the federal environmental assessment process that many of us have been proposing.

I will conclude with a couple of key points. I realize that my time is almost up. I'll make reference to the Aarhus convention, which I think can be a good source of information and a good source of ideas about how to improve access to justice, not just in the Canadian Environmental Protection Act itself, but more broadly, and I'll make reference to the substantive and procedural environmental rights and the idea of including those in the act.

I'll leave it at that. Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Now we'll move to Mark.

[Dr. Mark Winfield, Professor, Faculty of Environmental Studies, York University, As an Individual]

Madam Chair, thank you for the opportunity to speak to the committee today.

My name is Mark Winfield and I'm a professor of environmental studies at York University. I'm also a coordinator of the joint program in environmental studies and law that we offer with Osgoode Hall Law School.

I come to this meeting with a fair history of involvement around CEPA. I was extensively involved in the first CEPA review between 1995 and 1999. I was somewhat involved in the semi-review that happened in the early part of the last decade and the conversations around the clean air act, and so I picked up on some themes that seemed to have carried over those 20 years, and some new things as well as I was thinking this through.

Originally I was intending my comments to be very short, but as I thought about it more and more, I ended up more with a Frankenstein's monster of pieces from the legislation, but that's inherent to the character of CEPA. The legislation itself was originally an amalgam of different pieces of legislation. It covers a whole range of different topics. It's inevitable that one ends up having to talk about it in those terms.

In terms of specific things, I've identified six areas where I thought the act could be significantly strengthened. I'll talk about each of those in turn. Then there were three or four areas, mostly in the government's discussion paper, which I thought the committee may want to approach with considerable caution. All of them are themes that ring bells going back all the way to 1995. Conversations have been going on about CEPA for a very long time and I think this needs to be approached with some caution.

In terms of things that could be strengthened, I would focus in particular on the provisions around public participation. In part two, the intention was in some ways to have embedded originally a kind of environmental bill of rights into CEPA itself. That happened partially. I've made a number of recommendations there that there be a general statutory duty in the administrative duties section around a general right of public participation within the federal jurisdiction.

I've also made recommendations to expand the application of the CEPA registry, which at the moment is limited to policies and regulation. In particular, I've made a suggestion that the registry should be expanded to include public notice of specific approvals that are given under the act, things like ocean-dumping permits, permits for import and export of hazardous waste, and a number of other examples I give in my brief. I think that would make the registry much more effective. It's certainly been our experience in Ontario with the environmental registry. It also means the registry starts to function in very useful ways as a kind of archive. At least in Ontario, the environmental registry is searchable. It allows you to see the history of decisions that have been made around particular activities or even particular firms. I've also suggested expanding the scope of the application of the request for investigation provision and the whistle-blower protection provisions within the federal jurisdiction.

The second theme that I can touch on is the question of vulnerable populations and environmental justice. I believe the Canadian Environmental Law Association has spoken about this to the committee at some length. My colleague, Professor Dayna Scott, from Osgoode Hall Law School has also addressed this. I think it's quite crucial here. The crucial point really is that the government, in its proposal, simply proposed to deal with this at the level of the preamble. I think Professor Scott, CELA, and others have emphasized the importance of putting the environmental justice components into the operational provisions of the statute. Both have given quite specific examples of the places where those sorts of things should be operationalized.

The third area where I think CEPA could be strengthened is around the management of toxic substances. Professor Doelle spoke to this already in terms of both accelerating and depoliticizing the process of putting things onto the toxic substances lists, TSL, but also emphasizing the importance of the listing of something on the TSL as a trigger for risk management actions, that this can't just be a paper process, that something has to flow from a finding of toxicity, and there have to be statutory duties of some form of action. There already are, but we found they haven't worked very well. There are some things, like the NPRI listing, for example, and the listing under the emergency regulations that are in section 200, triggering pollution prevention planning for example. These are all things that pretty much have happened automatically on a finding of toxicity given the way that is structured at the moment.

I've made a number of suggestions around international obligations as well to introduce into the administrative duties section a requirement that the Government of Canada ensure that it is fulfilling Canada's international environmental obligations. I've made the suggestion that there actually be a specific schedule of the agreements that Canada has entered into, to which that duty would apply. It's probably a more robust mechanism for making sure that the government is conscious of its obligations to the international community and fulfills those obligations.

I've made some suggestions around the international air and water pollution provisions as well, in part 7, essentially suggesting that the process for the federal government to take action against sources of international air and water pollution inside Canada be streamlined. At the moment, those provisions are subject to very extensive consultation requirements with the affected province. We are suggesting that this be streamlined and that there be very clear criteria for the point at which the federal government can act to regulate those sorts of sources of pollution within Canada. We are also suggesting a parallel set of provisions around interprovincial air and water pollution.

Finally, I've highlighted the question of environmental management within the federal jurisdiction. I think this emerges as a particular fail in terms of CEPA and its structure, that we have almost nowhere here at all.... Indeed, as I was researching this, I discovered that of the three regulations that were made under this part, two actually have subsequently been withdrawn.

There are a number of options here. The government has proposed incorporation by reference of provincial standards or simple application of the relevant provincial standards in whatever jurisdiction. There could also be a general offence provision within the federal jurisdiction for activities that cause harm to the environment, which is in fact typically what most provinces have within their jurisdiction. How do you deal with the question of what happens on federal lands and other things? Well, you can have a general offence provision that says you cannot release contaminants into the environment that may cause harm. Something along those lines, I think, would be helpful.

There are cautions growing from the government's white paper. I am somewhat nervous about the notion of separating the virtual elimination substances from the other substances on the toxic substances list. I am sensitive about the construction of the constitutional basis for federal regulatory authority around toxic substances as a result of the Hydro-Québec case in 1997, and I would be very cautious about anything that affects that.

One theme that emerges very strongly from the government's white paper is that of reliance on other departments and other statutes to carry out risk assessment and risk management activities. Again, this is something I would approach with great caution. In the original CEPA review, one of the big issues was around the residualization of the act, making it apply behind everything else. Our view was always that CEPA should actually be the benchmark. If something is going to be regulated under another act, there have to be criteria under which that regime has to qualify in order for something to not fall under CEPA anymore but under something else: the Food and Drugs Act, the Seeds Act, the Feeds Act, or whatever. This can't just be hand-waving. There have to be criteria that apply there.

The same argument in some ways applies to the government's discussion of the expanded use of equivalency and administrative agreements. Again, this is something I would approach with a great deal of caution. As I was researching this, I was quite concerned about the extent to which we don't actually have evaluations, at least that I could find, of performance under the existing equivalency and administrative agreement provisions.

In my view, the government seems to want to lower the threshold here, eliminate the requirements of the actual agreements, and eliminate the requirement that these things have sunset clauses. In the original CEPA review, we argued completely the opposite, and I'm going to argue completely the opposite again here, that the criteria for equivalency agreements have to be articulated within the act in more detail. It's the same thing with administrative agreements. The reporting requirements need to be articulated in the statute in more detail. Otherwise, the risk particularly around equivalency agreements is that these come to be regarded as a kind of “get out of jail free” card for provinces; we are saying that federal rules exist, but they don't really apply in their jurisdiction. I would want to look at that very carefully.

I will end on that note.

Thank you, Madam Chair.

[The Chair, Liberal, Deb Schulte]

I feel so bad because you're on a roll and you have a lot to share with us. I'm sure we'll get more of that information from you in the questions.

I want to welcome Daniel Krewski. Thank you very much for joining us. I don't know which one of you would like to start. Lynda.

[Professor Lynda Collins, Associate Professor, Centre for Environmental Law & Global Sustainability, Faculty of Law, Common Law Section, University of Ottawa, As an Individual]

First of all, thank you very much for having me today. More important, thank you for the work that you're doing in this CEPA review.

For those of us who aren't doctors, it's rare that you can say you're work can save lives, but this work you're doing could save thousands of lives every year in Canada, and not just save lives, but improve the quality of life for all Canadians, including children, the elderly, people with disabilities, low-income communities, indigenous communities, and other vulnerable populations. I think we all agree that CEPA 1999 needs a lot of work. You've undertaken a big project, but the good that could come from this is also very significant. I'm very happy to be a part of your work.

I'm a professor at the Centre for Environmental Law and Global Sustainability at the U of O. My expertise is in the area of environmental human rights and liability for toxic substances. In that capacity, I've testified in public hearings at the European Parliament, done consultative processes at the UN Human Rights Council, testified at our own Senate Standing Committee on Energy, the Environment and Natural Resources and before this committee at the last CEPA review 10 years ago. I'm past co-chair of Ontario's toxics reduction scientific expert panel, which helped the province develop their Toxics Reduction Act. Along with Dr. Heather McLeod-Kilmurray I'm the author of The Canadian Law of Toxic Torts.

I have reviewed the submissions that have already come before this committee, and in my opinion, you can find a clear, comprehensive, and feasible road map for building a better CEPA in the submissions of Dr. Dayna Scott, Dr. David Boyd, of course my colleagues on the panel today, as well as Ecojustice and the Canadian Environmental Law Association.

I'm going to focus my submissions in the areas of my own expertise. CEPA needs a lot of revision to meet its goals. I commend to you all the recommendations in those submissions that I mentioned.

I submit that CEPA should recognize, and more importantly effectuate, the right of every Canadian to a healthy and ecologically balanced environment. To do this, CEPA will need to take into account three distinct dimensions of environmental human rights that have been recognized internationally, notably by the UN special rapporteur on human rights and the environment. Those are: one, the substantive right to environmental quality; two, the obligation of non-discrimination in environmental protection; and three, procedural environmental rights.

Taking each in turn, first is the substantive right to environmental quality. As a first step, I submit that the Government of Canada should amend subsection 2(1) of CEPA to impose on the government the obligation to respect, protect, and fulfill every Canadian's right to a healthy and ecologically balanced environment. This amendment would bring Canada into the overwhelming global consensus, which views environmental protection as a human right. Some of you may know that the Supreme Court of Canada will hear its first charter environmental rights claim next week. The environmental rights revolution is coming to Canada. It only makes sense to embody this important concept in our most important federal environmental law.

In my view, even more important than recognizing the concept is implementing it, giving effect to it. To do that, CEPA needs to begin to do a much better job of identifying, limiting, and even banning harmful chemicals. In particular, it should eliminate exposures to known carcinogens, developmental neurotoxins, and endocrine disrupters.

To do that you have to implement the precautionary principle at every stage of the CEPA process. If you don't, you not only end up with under-protective results, but you violate rights in the process. I think Dr. Joe Thornton, says this the best, “People, not chemicals, have the right to be presumed innocent until proven guilty. People also have the right not to be experimented on without consent”. In other words, if the substance hasn't been proven to be safe, I submit it should not be released into the Canadian environment.

Still on this topic of the substantive right to environmental quality, we would need some particular amendments. We should amend CEPA to require the ministers to establish binding and enforceable standards for ambient air quality and drinking water.

As you know, historically we've regulated point-source pollution, without a total limit on the number of point-source permits that can be issued, which results in pollution hot spots. This doesn't make any sense ecologically or physiologically. These values are too important to be embodied in non-binding guidelines. They need to be enforceable within the act. We know from other jurisdictions that these binding national standards can be effective at improving environmental quality and public health.

We also need to remove the need for exposure data in determining toxicity under section 64, and take a hazard-based approach to substances of high concern, requiring industry to prove safety, rather than government proving toxicity.

In my submission, in the 21st century we now know that any substance that enters the environment will eventually end up in human bodies, and vice versa. We're seeing that the drugs and pharmaceuticals we take are in lakes and rivers; similarly, industrial chemicals such as PCBs are measurable in human bodies. In order to assume that you could allow the release of a substance without its resulting in exposures, you'd have to rely on the logical fallacy of the human separation from nature, which is just not supportable anymore.

As Dr. Scott pointed out, the requirement to include exposure data when you're assessing toxicity has resulted in some very long delays. I support Dr Scott's proposal that we should actually delete the words from section 64, “is entering or may enter the environment in a quantity or concentration or under conditions that”.

I would suggest amending CEPA to require assessment of alternatives and substitution with safer options. Again, and you've heard this over and over again from experts in the field, alternatives assessment prevents the adoption of more toxic substances that sometimes can happen without it, and the substitution principle ensures ongoing improvement in health and safety by continuously moving away from more dangerous substances towards safer ones.

Again, to echo the testimony of many of the experts who have come before you, I suggest we need to remove the “do nothing” option once a substance has been identified as toxic. I suggest this is probably necessary just to be in compliance with existing section 7 of the charter. Once a substance has been identified as toxic, to do nothing probably is a violation of security of the person, even under our current constitutional law.

We should implement binding reasonable timelines for assessment and regulatory action—we've already heard some of the notorious examples of very long delays, such as in the case of PBDEs—and we should impose an interim ban on substances when another OECD country has banned or substantially limited the use of a substance.

That's all going to the first category of the substantive right to environmental quality. With respect to the obligation of non-discrimination, this in North America is typically referred to as environmental justice. It deals with the equitable distribution of environmental benefits and burdens. I would suggest again that this is probably already required by our existing section 15, the equality provision of the charter.

In order to improve CEPA's performance on environmental justice, the Government of Canada should amend subsection 2(1) of CEPA to require the government to protect vulnerable populations at every stage of the CEPA regulatory process.

We should ensure that toxicity assessment under section 64 takes into account the unique susceptibility of vulnerable populations. We should amend CEPA to ensure equitable regulation of ambient pollution across the country, in other words, end pollution hot spots in marginalized communities, and we should complete a national environmental health inequality assessment, as recommended by the World Health Organization.

I want to emphasize here that in many cases we have not been doing a good job of collecting data on exposures of vulnerable populations. The absence of that data should never be used as an excuse to delay a listing or regulatory action. I submit that wherever data on the unique exposure vulnerability or susceptibility is absent, we should draw an adverse inference; in other words, we should presume that vulnerable populations are more likely to be exposed and more vulnerable to the adverse effects of exposure, if the data is not there. That is under that section, the second category of environmental human rights, the obligation of non-discrimination.

Finally, we have procedural environmental rights. These again are very well entrenched internationally and have been recognized by the special rapporteur. They're understood to include the rights to access to information, public participation in environmental decision-making, and access to justice in environmental matters.

CEPA needs to be amended to allow ministers to request information at any time and for any purpose connected to the act, and producers should be required to respond expeditiously. Right now, we have a system that actually encourages manufactured ignorance, and this has been well documented in the literature. Why would a rational corporation that has a legal duty to maximize profit fulsomely study its substances unless it has a legal duty to do so? We need to flip that to create incentives to produce information on the safety or toxicity of substances.

We need an overhaul of the national pollutant release inventory along the lines that were very clearly spelled out in the Ecojustice submission, and we need to implement Canadians' right to know by creating a toxics labelling program to permit Canadians to make informed choices in their consumption.

Finally, we need an effective suite of citizen enforcement actions that allows any Canadian to initiate a special review of a substance that has been banned or substantially limited in another OECD country, and to enforce the act whenever it has been violated without the need to show existing environmental harm.

I see that I've been yellow-carded, so I will leave my submission at that.

[The Chair, Liberal, Deb Schulte]

You've done well, though.

[Prof. Lynda Collins]

Thank you very much.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

Our final presenter is Daniel Krewski. Welcome.

[Professor Daniel Krewski, Professor and Director, Faculty of Medicine, University of Ottawa, As an Individual]

Thank you, Madam Chair.

How much time do I have to make my comments?

Do I have ten minutes?

[The Chair, Liberal, Deb Schulte]

You have 10 minutes, yes, and at one minute, I will give you a signal with the yellow card. I will hold up the red card at 10 minutes, and you can wrap it up. Don't stop all of a sudden; just finish your thought, and we'll end it there. Thanks.

[Prof. Daniel Krewski]

Thank you.

It's a pleasure to have a chance to offer just a few comments as you contemplate the renewal of a very important federal statute, the Canadian Environmental Protection Act.

I have five areas that I want to make very brief comments on. There is one you might think a little peripheral, but I think it's quite central, and that's the exploitation of new science in environmental health risk assessment. I'll focus about a third of my comments on that topic.

Among the other topics, as Lynda has mentioned, is air pollution, and I'm going to expand it to a global environmental health challenge which is important that we consider. There is the possibility of strengthened provisions for drinking water safety within CEPA, and a brief discussion of the principles by which we should make important risk decisions. Finally, I will have some comments about linkages with other international environmental risk assessment programs.

On the science side, the science of toxicity testing and assessment of environmental agents is undergoing a transformation. I chaired a committee of the U.S. National Research Council which reported in 2007. The title of the report is “Toxicity Testing in the 21st Century”. We were asked to chart how we should be using new scientific tools and technologies to better assess the risks associated with agents in our environment.

We wrote a detailed report which was transformational. It talked about using new technologies, high throughput in vitro screens and computational toxicology being two of about a dozen different approaches. These tools offer the potential to greatly accelerate the rate at which we can test the tens of thousands of agents that are present in the environment at reduced cost. There are now robotic laboratories that can run through 100,000 chemicals in the space of six weeks for 50, 100, 200 different biological end points. The world is truly changing in the field of toxicological risk assessment.

This report, to my surprise and to my satisfaction, has received widespread acceptance around the world. It has been adopted by four major regulatory agencies in the United States. The Council of Canadian Academies wrote a report in 2012, which said that this is a good way to go. There has been a grassroots consortium to develop the science needed to implement these procedures. The Chinese Society of Toxicology translated our whole report into Mandarin, and it's very popular now in Asia as well, so we've had lots of widespread international acceptance for these ideas.

As a follow-on, I worked for three years on a project initiated by the U.S. Environmental Protection Agency to talk about how we should translate these new ideas into practice. What should the next generation of risk assessment look like? We published a major report under the auspices of the U.S. EPA. I have references to most of the points that I'm making here in the handout that I've left with the committee. We've laid out a template, a paradigm, and a framework for the next generation of risk science, which shows how we could be doing toxicological risk assessment better, cheaper, faster. The key cornerstones are the new toxicological approaches, advanced risk assessment methodologies, and some ideas from population health, looking at multiple determinants of health simultaneously, gene environment interactions and social environment interactions included.

Another theme—and I'm coming to the end of my scientific remarks—is we now have very well-thought-through frameworks for evidence integration, pooling together evidence from multiple sources to come up with the best scientific statement of levels of risk. The U.S. Environmental Protection Agency's integrated risk information system was reviewed in 2014, and there's a template that is being adopted by the U.S. EPA for integrating evidence in a thoughtful, balanced manner.

Some of the lessons from all of this are we can use the new science to look at data-poor compounds. There are 23,000 substances on the domestic substances list that Health Canada and Environment Canada have prepared. These new high throughput techniques can run through those efficiently, and give us answers to potential hazards and risks in a cost-effective manner. At the other end of the spectrum, when we go to PSL, priority substances types of compounds, which are typically data-rich and warrant in-depth evaluations, some of the new evidence integration techniques would be very valuable there.

My take-home message from the first of my five points is the science by which we conduct environmental health risk assessment is undergoing a revolution and there are plenty of opportunities to exploit these new techniques.

I don't know that CEPA itself wants to be prescriptive on how it should be done in practice, but I think CEPA should acknowledge that there are tools at our disposal that we did not have in the past.

Just as a footnote, one of the questions that came up early on during this transformation was by the legal community in the U.S. They asked how all of these new scientific ideas would work with respect to existing federal statutes. We had a session sponsored by the Environmental Law Institute in Washington. The conclusion was that the statutes typically say you should do your best assessment with the best available science. All of these new ideas were seen to be compatible with the existing legislation in the U.S. and presumably in Canada as well.

Getting on to the remainder of my points, I want to highlight the importance of air pollution at the global level. I'm looking here at a very nice map of the world drawn based on satellite images. It can predict ground level pollution concentrations at any latitude and longitude on the planet. I see some hot spots in Asia and Africa due to the Sahara dust. I have another map corrected for natural dust.

The point is there is a global public health issue related to air pollution. We have a paper on environmental research, which I've cited in my submission, suggesting that globally, approximately 10% of all deaths worldwide may be attributable to air pollution. So it is something we need to pay attention to from a public health point of view, and it's a problem we cannot solve totally in Canada because a lot of our pollution migrates across national borders.

Turning to drinking water, which is another important area of environmental concern, there was a drinking water materials safety act in 1997 that made it to first reading in the House of Commons. The House was prorogued, and that act never was reintroduced.

I have a cartoon in front of me that looks at the three main components of that, which are treatment of drinking water at the filtration plants, distribution of water throughout the water system through copper pipes and other materials, and point of use devices like charcoal filters on your kitchen tap, all of which could be used to enhance drinking water safety.

My suggestion is, if the committee is so inclined, to take a look at some of the elements of the previous drinking water materials safety act, and since that act did not materialize, to see if any of those might be useful to consider for inclusion in CEPA.

My second-last point is about how we make decisions about environmental risk issues. I just finished my class earlier this afternoon. The session was on principles of decision-making. There are about 10 major principles we discuss. Different principles are applicable in different contexts.

One that I stress to my class is the precautionary principle, of which there are over 20 different definitions, which are embodied in a lot of statutes and guidelines worldwide. It's a very useful principle. It says that if you're uncertain, if the science is not clear at this point, and if the stakes are high, you may want to take action rather than wait until it's too late.

When you get a message in Fukushima that it might be good to evacuate because there might be a tsunami coming, that's a good example of the precautionary principle.

Another one we focus on is risk-based decision-making, which says that when you have limited risk management resources, you want to try and do the most good for the most people, so you should try to allocate your resources to risks you know can be modified and risks you know are real, and modify them in a cost-effective manner.

We define the right principles to underlying environmental decision-making. Again, I'm not sure that CEPA wants to promote principles, but some consideration of how decisions should be made might be useful as you're crafting the new legislation.

My final point is about international collaboration and risk management. Canada is not the only country that has environmental legislation. In the European Union, the REACH program under the European Chemicals Agency has required that every chemical in existence have a detailed toxicological dossier submitted for evaluation. The U.S. Environmental Protection Agency has generated a huge database on environmental agents and potential risks. They have offered me no fewer than three million datasets to play with for our research at the University of Ottawa, so there's a lot going on internationally.

If we could work somehow at the international level, we could perhaps more effectively address international risk issues such as transboundary air pollution. We might be able to harmonize risk assessment practices, leading to the avoidance of non-tariff trade barriers, which is quite important in this era of globalization. We might even achieve cost savings through data sharing agreements and mutual recognition agreements. Some international perspective would be quite valuable.

I do have a handful of references in my handout that support most of the comments that I've offered the committee today.

Thank you.

[The Chair, Liberal, Deb Schulte]

Thank you very much to all our witnesses. That was great food for thought.

Now we're going to open questioning.

Mike Bossio can start.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Wow. They were four incredible presentations that are music to my ears, but daunting. I feel like my brain is going to explode any second. There was so much information there.

We've had a lot of discussion with panels around a risk versus a hazard based approach, what we're doing today versus REACH. REACH is too far and risk doesn't doesn't do enough.

One of our three panellists who are here, Mark, Lynda, or Daniel, could you quickly give us your 10-second elevator pitch on a risk versus a hazard based approach?

[Prof. Daniel Krewski]

I asked the head of the REACH program, Derek Knight, that question when he was presenting at an EPA symposium in North Carolina. I got up in the discussion period and I said, “Derek, I get the sense that the REACH program is a little more hazard based, a little more precautionary, than the approach that's used by the U.S. Environmental Protection Agency”, and he said, “Yes”.

The idea, I think, relates a little bit to guilty until proven innocent; show me safety before you can use an agent. I think we need to find the right balance between those two. I don't have a simple solution to your question, but I think it's a very important one, and one that you need to give some guidance on within the new statute.

[Prof. Lynda Collins]

I favour strongly a hazard-based approach, as Europe has undertaken. Again, I'm going to draw on Joe Thornton to illustrate this problem.

One of the biggest barriers in toxics regulation is scientific uncertainty. Part of the problem is just identifying hazards. Is this a substance that causes cancer? The incredible work that's been done with Tox21 has made it easier to do that.

When they do risk assessment, they take that difficult project of figuring out whether the substance causes something, and then they add it to exposure estimates. Typically, what they try to do is estimate, say, if we're looking at cancer, how many excess cancers in a thousand will be caused by this substance. You compound the uncertainty. We've historically underestimated risk exposures.

To give you an example of how uncertain those can be, there's a famous risk assessment of trichloroethylene in drinking water from the U.S. EPA. They used four computer models using the risk, not the hazard, system, to estimate how many cancers it would cause. The results differed by orders of magnitude. In the preamble to the report, the EPA said that there was “an uncertainty equivalent of not knowing whether one has enough money to buy a cup of coffee or pay the national debt.” Hazard is a much more precautionary approach, in my opinion, than a risk-based approach.

[Dr. Mark Winfield]

I approach this from two minds. The risk assessment side of me strongly favours the hazard-based approach. I was one of the authors of the notion of inherent toxicity in the existing act. The other side of me was one of the contributors to the ultimately successful factum in the Hydro-Québec case, in which we struggled with this a lot in terms of where the threshold fell for a definition of toxicity and what then would qualify as a legitimate target for the federal criminal law power.

I haven't resolved that dilemma yet. On the one hand, I would prefer a much more precautionary and hazard-based approach versus being unsure about what it would do to the jurisdictional basis of the regulation of toxic substances if, in effect, you changed that threshold from the combination of hazard and exposure to just hazard. I don't know the answer to that, and I'll just leave that on the table.

[The Chair, Liberal, Deb Schulte]

Mr. Krewski wanted to throw something else into the answer, but you now have one and a half minutes.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Sorry, Mr. Krewski, I apologize, but there's another question I'd like to get out there, and that's feeding off what you just said on the toxicity side.

We go through the hazard process. We've implemented, let's hope, a testing regimen that gives us both the risk and the hazard-based side of it in a much quicker, cost-effective way. Now what do we do when something's been identified as toxic? Today, as you said, the do-nothing approach, which is what we've been doing, isn't working because there's no stick and there's no incentive for them to do anything. How do we get to the incentive? How do we get to the stick? How do we get to elimination?

[Dr. Mark Winfield]

I think the stick really comes down to.... Once there is determination of toxicity, this has to trigger a series of statutory duties on the part of the Government of Canada. There have to be requirements for action. This is typically the way U.S. environmental legislation works, with the Clean Air Act or the Toxic Substances Control Act. Once you have a finding of toxicity or endangerment, out of the Clean Air Act, that triggers a series of duties on the part of the Environmental Protection Agency to actually do something. That's really what we've lacked in CEPA.

Once we've gotten to the determination of toxicity in the schedule 1 listing, we've been painfully slow in translating that into risk management action of actual regulation and control. I think it has been a very consistent theme in all the presentations you've been hearing, at least from the non-industry side, that this component of the act needs to be much stronger, and that a finding of toxicity—an addition of a substance to the list of toxic substances—has to carry with it much greater consequences and requirements for action on the part of the Government of Canada.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Thank you.

I apologize, Meinhard, for not including you on that.

[The Chair, Liberal, Deb Schulte]

Maybe someone else can pick it up.

The next one up is Mr. Fast.

[Ed Fast, Conservative, Abbotsford, BC]

I will do exactly that. I'm going to pick up from that discussion.

Mr. Krewski, you did hear Ms. Collins strongly support a hazard-based approach to the assessment of substances. I have a couple of questions in that regard.

First, is it possible to apply the precautionary principle within a risk-based assessment process?

The second question is, how will Tox21, or the computational methodology that is leading us forward and will complement our conventional testing and assessment processes, improve our ability to use a risk-based assessment system? How will that improve the process?