Hi. My name is Elaine MacDonald. I'm the senior staff scientist at Ecojustice Canada. Thank you for inviting me to present my thoughts on this 300-page act in 10 minutes. I hope I can do some justice to it.
Ecojustice, for those of you who don't know, is a national environmental law charity. I have a Ph.D. in environmental engineering from McGill University and I lead the environmental health team at Ecojustice, where I work on projects and cases related to pollution and toxics exposures.
I'm going to talk first about a couple of big-picture ideas for reimagining CEPA, then move into some specific concerns.
A community I visit many times and do a lot of work with is the Aamjiwnaang First Nation in southwestern Ontario. Aamjiwnaang is on the south side of Sarnia in an area known as Chemical Valley. The name comes from the intensity of oil refineries and chemical plants in the area. Aamjiwnaang itself is a beautiful oasis of green surrounded by industrial facilities. Community members report high rates of respiratory illness, cancer, and reproductive problems, but when they asked how the law regulates the cumulative effects of all these facilities in such a close proximity to them, they were told that it doesn't. A place like Aamjiwnaang is an example of an environmental injustice. Lower-income communities and first nations often suffer a disproportionate environmental burden in Canada.
A measure of CEPA's effectiveness could be an assessment of what it has done to try to correct these imbalances to ensure that every Canadian enjoys the same degree of protection from environmental and health hazards. My assessment would be that CEPA has done little if nothing to help.
I recommend CEPA be amended to incorporate environmental justice principles as a starting point. It would be helpful for the government, perhaps this committee specifically, to look at the issue of environmental justice in Canada as an issue unto itself, since to date no government has done so. This is an important step in the U.S., legitimizing the issue but also ensuring that decision-makers have an accurate picture of the problem.
CEPA could address environmental inequities through national binding air quality standards or drinking water standards. We have neither in Canada.
Another area in which environmental justice could be applied within CEPA is the assessment of substances and organisms for toxicity, and risk management under parts 5 and 6, and including legislative requirements to consider vulnerable populations and the implications of gender, age, and social determinants of health such as economic status, living conditions, and access to safe drinking water, given the implications of these factors in terms of increasing susceptibility and sensitivity to certain chemical exposures.
CEPA has been described as a toxic treadmill, a game of whack-a-mole. As fast as the government assesses the toxicity of substances, there is always more to do. To get off the toxic treadmill, CEPA needs to adopt an alternatives assessment and life-cycle approach to assessing and managing the risks of toxic substances. An alternatives assessment is a process of identifying, comparing, and selecting safer alternatives to toxic chemicals or organisms—because CEPA also deals with organisms—to reduce risk to humans and the environment and to prevent the replacement of one toxic substance with another equally or even more toxic substance, something we have seen and frequently see.
Canada has fallen behind other jurisdictions such as the United States and the European Union, in which you do find alternatives assessment requirements as part of their chemicals management regime.
The OECD, the Organisation for Economic Co-operation and Development, conducted a meta-review of alternatives assessment and chemical substitution frameworks, and it's available on their website. There is also a precedent in Canadian law, actually, although unfortunately it's not mandatory. I would advocate for it to be mandatory. It's found in subsection 7(9) of the Pest Control Products Act.
I recommend that CEPA be amended to require alternatives assessment as part of the risk assessment for any substance or organism.
My remaining comments are slightly more specific and address some of the problems I have noted in CEPA 99 through my years of working with it.
It isn't clear to me what triggers an assessment under CEPA, other than the categorization process, which led to the CMP, which we just heard a lot about, and of course new substance or organism notifications. Environment Canada and Health Canada talk about the seven CEPA triggers or feeders, but the triggers are not laid out in the act in that manner.
What is clear is that some triggers are not working. For example, sections 70 and 71 relate to the information provided by industry, but I have never seen reference to a review being triggered by data provided by industry.
Similarly, subsection 75(3) is a requirement to review information on bans and restrictions of substances for environmental or health reasons in other jurisdictions, but that section still has not been implemented, although the last I heard Environment Canada claimed to be working on it. It has been quite some time since 1999.
The only trigger that is based on a request from a member of the public is found in subsection 76(3). It relates to the priority substances list and it is completely ineffective. I don't have time in ten minutes to go into why, but I do believe you government officials who work on CEPA would agree with me on that.
I recommend that CEPA be amended to clearly and transparently lay out the triggers that lead to the reviews of substances. It must ensure that substances are reassessed from time to time as new scientific information becomes available. I also recommend that CEPA be amended to add the right of a person to request a review of substances, much like the right that exists under subsection 17(4) of the Pest Control Products Act.
CEPA also deals with new substances. It doesn't just deal with existing substances, which is what we heard about with the chemicals management program. When someone notifies the government that they wish to import or manufacture a new substance, the review under CEPA is a black box. There's no transparency or consultation. The little that is required, such as publishing waived studies or data requirements, has been subject to months or even years of delay. Only after litigation was launched did the government publish a backlog of over 600 notifications of scientific data waivers, issued under the new substance and organism programs dating back as far as eight years. I recommend amendments to CEPA to require the timely publication of waivers, and consultation and transparency in the review of new substances and products of biotechnology under part 6.
CEPA 1999 grants the minister the powers to set guidelines and objectives, but what's really needed are science-based enforceable standards for air quality and drinking water, which I already touched on when I spoke of issues of environmental justice. You've probably been told of the government's work on the air quality management system, AQMS, or the Canadian ambient air quality standards, CAAQS. They're called standards but they're really not; they are objectives. Discussions of the federal air quality and pollution regulation regime can be tracked back at least eight years—I think I went to that first meeting, actually—yet we still don't have a standard for sulphur dioxide and nitrous oxide, two of the major precursors to smog and poor air quality. Compare this to the United States, where the EPA recently celebrated the 25th anniversary of the amended 1990 Clean Air Act, which sets out enforceable national ambient air quality standards for the entire country. CEPA needs to set enforceable science-based national air quality standards.
The last issue I want touch on is the national pollutant release inventory. This should be one of the crown jewels of CEPA, but it's not. It's the only source Canadians have for finding information on pollution emissions in their communities. The NPRI is meant to fulfill the government's obligation under CEPA to establish and publish a national inventory of pollutant releases. It's covered in sections 48 to 50. It's based on self-reported data from industry, but there are concerns regarding the government's validation and auditing of the data. There is no indication the level of auditing it gets. In addition, the NPRI includes exemptions and sets very high reporting thresholds, such that it doesn't provide Canadians with a complete picture of the actual pollution discharges in their communities. For example, the NPRI exempts oil and gas exploration. Tell that to somebody living in the Peace River valley. Oil and gas well drilling is also exempt. It recently just added an exemption for municipal waste water discharges, smaller discharges from municipal waste water plants. There is a mechanism that Environment Canada has for requesting changes to the NPRI, however that mechanism is broken. Environmental Defence Canada, my neighbours right here, made a request in 2010, and they still have not had a response to their request. It was for the addition of substances to the NPRI list that are found largely in tailings ponds such as naphthenic acid.
I recommend that the NPRI be strengthened under CEPA by laying out clear, comprehensive reporting and publishing requirements with lower thresholds, and without loopholes. In addition, I recommend the adoption of a transparent and accountable public tool for requesting changes to the NPRI with fixed timelines.
Thank you for your attention.