Environment Committee on Nov. 22nd, 2022

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you.

Thank you to the witnesses for being here today.

My first question is going to be for Mr. Thurlow.

You talked about the importance of the watch-list that's being put together here. This is important legislation. We've been looking at this for quite some time, since it was put on our plate here in Parliament, and I can assure you that we have numerous intervenors trying to say we need to meet with them to go over this, and I know we're parsing that in this committee, in terms of the number of people who can get in on this.

We're parliamentarians. You know this, Mr. Thurlow. We don't know the chemistry the way you do. We don't know how this is going to interact with all the biological factors the way you do. We're all drinking from the firehose here regarding the changes we need to make in order to get good legislation for Canadians.

With that preamble, we're looking at trying to do a deep dive on what we need to do here. It's legislation that's been designed over a number of years with the input of experts, of people who are involved in this business like your company and your industry association. There have been many changes to this along the way.

Would you suggest that some of those changes in the other place have been less than constructive, and, if so, what damage to the chemical industry management in Canada has been done by potential amendments that happened on the way here, and how would we address that?

[W. Scott Thurlow]

There's a lot in that question, and I thank you very much for it.

Mr. Chair, I implore you not to give me homework the way that the chair of the Senate committee did. In the homework assignment he gave me, he asked for us to research every other jurisdiction in the world to find a watch-list, and we couldn't. This asks the question about why we need this watch-list.

Now, as it has been explained to us, the watch-list is a signal to industry to avoid the use of certain chemicals after a risk assessment has been completed and they have been found not eligible to be added to schedule 1. It is a tool to send a signal to industry to avoid the use of these substances.

As I said in my opening remarks, if government wants to do that, a “significant new activity” notice does that job admirably. If you want to send a signal to industry to tell them to stop using something, a stop sign works, and that's what a SNAc is. We need to have permission after a SNAc is put in place to increase our use of a substance or to change the use of that substance.

Now, I'm not going to say that we have to delete the watch-list, although I would like you to delete that list. At the very least, could we have an off-ramp, so that if the hazard profile of a substance changes because of new scientific evidence, a petitioner, a citizen or a company can go to the minister and say that they have this new information and to please remove the substance from the watch-list.

That's part of the answer to your question.

Now, what the Senate did to the watch-list was that it said, well, we'll take a substance off the watch-list if we add it to schedule 1. Well, that's a little bit of a coy move, because they've then decided that the substance has to be managed so there's no point in it being on the watch-list anymore. It's no longer sending that signal to industry.

An amendment on the other side of the ledger that allows a substance to get out of this proverbial parking lot—or as I call it, the defamation list—where it is proven in the future that the hazard profile that would end up on the watch-list is reduced, would be very much appreciated.

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you for that.

I've gone through the background on the bill, and there are some clauses that I would like your input on here.

Clause 53 adds new sections 317.1 and 317.2 to list circumstances under which “the Minister [of the Environment] may disclose the explicit chemical or biological name of a substance” or “the explicit biological name of a living organism” even if “a request for confidentiality has been made”. These include circumstances where.... It lists them.

Is this at all a deterrent to business in your industry, if confidentiality is going to be breached, potentially without even notification from the minister to the company in question? Is this only in Canada, and will it be a deterrent to business evolving in Canada?

[W. Scott Thurlow]

As originally drafted, Bill S-5 has changes to the “confidential business information” provisions of CEPA, but those are changes that—provided the adequate notices provided to the owners of that information, and provided they have a right of reply—are acceptable.

There are other amendments that have been circulating about mandatory disclosures, about a public disclosure in advance of an approval. Those are the types of amendments that will really stop innovation. Those are the types of amendments that will not necessarily provide the public with any new useful information, but will absolutely provide our competitors with the useful information as we disclose this confidential business information. I would warn the committee against those types of changes.

[Greg McLean, Conservative, Calgary Centre, AB]

Let me go further, because there's also a provision in here where “The Minister [of Health] may disclose confidential business information” to other government departments or other governments—international governments, I'm presuming—for the purpose of managing an environmental risk or to protect the environment. This disclosure may take place without notice to, or the consent of, the person whose affairs the information relates.

Is that going to cause an international problem for your company if they actually start doing their innovation and development here in Canada?

[W. Scott Thurlow]

There are two ways of answering your question, and I'm going to use the way that makes the departments look good first. In the past, when there have been these questions about who holds confidential business information, they have bent over backwards to find the owners of that information to ensure that before they make a public disclosure of any kind, the people who own that information have the opportunity to put up their hand and say, “Wait a second, this is not a good idea. This is still something that we believe to be important to the business confidentiality of our company.”

How this particular clause operates in the future is going to depend as much on our OECD partners, how they hold that information and how their access laws are designed.

Our access to information laws are designed on a trilogy of acts, and when an access request is made for anyone's information, and there is a question about that confidential business information, the onus is on industry to prove to the government that they shouldn't disclose it if the government plans on disclosing it through an access to information request.

I've filled out thousands of those requests and replies, and I believe the government does a very good job at safeguarding that information.

[Greg McLean, Conservative, Calgary Centre, AB]

I have another technical question for your response to this committee.

Subclause 49(1) makes it an offence under CEPA to fail to notify a person to whom a substance or living organism on the domestic substance list is transferred of the responsibility to provide information to the minister.

Is an offence under CEPA a criminal offence that's being passed on? What is the penalty for that criminal offence?

[W. Scott Thurlow]

Unfortunately, that part of the statute will depend a lot on the discretion of the prosecuting lawyer. There is a very wide range of potential offences under CEPA. It can include jail time.

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you very much.

I'm going to switch now to Ms. Daniels. Thank you very much for your testimony.

We have gone through legislation here just recently in this committee with Bill C-226. It was a private member's bill brought forward on environmental racism. There are numerous parts of this bill that we're looking at today that, in my opinion, seem to overlap, including the consideration of the effect on vulnerable populations, such as indigenous populations. Much of that is what you spoke to.

Do you think that addressing it in this bill, which is updating a very important piece of legislation that the government has, and having another bill is going to cause some confusion? Do we need to have two bills that address the same environmental racism or the consideration of the effects on vulnerable populations?

[Melissa Daniels]

Thank you for your question.

I'm going to defer this question to my colleague Jane, as she was the one who testified on Bill C-226.

[Dr. Jane E. McArthur, Director, Toxics Program, Canadian Association of Physicians for the Environment]

Thanks, Melissa.

Hello again, Mr. McLean. I was here on Bill C-226.

I think my colleague with the David Suzuki Foundation, Lisa Gue, spoke to this to some degree in the first panel. We believe that these pieces of legislation would be complementary. Part of it is in the implementation and the establishment of how both of these pieces of legislation would be moving forward to address the problems of environmental injustice and environmental racism.

One of the things that Bill C-226 lays out is very clearly around the problem, specifically, of environmental racism. What we see with CEPA and Bill S-5 is a broader framework that recognizes that intersection of racism, but in the broader environmental justice framework and around vulnerable populations.

I think these are complementary pieces that are both critical to our understanding.

If I may, we are coming to you as an intersection of environment and human health—

[The Chair, Liberal, Francis Scarpaleggia]

We're going to have to stop there. Thank you for your answer.

Mr. Duguid, you have six minutes.

[Terry Duguid, Liberal, Winnipeg South, MB]

Thank you, Mr. Chair.

I want to thank all of our witnesses for their excellent and interesting testimony today.

I have two questions. I think I will ask them separately. They deal with some of the points of tension in the bill, where I think there are legitimate views on all sides.

Ms. MacDonald brought up the issue of timelines. Let's use the issue of timelines for assessment as one of our examples. Obviously, there's the need to assess a certain chemical quickly to protect the health of Canadians and to put pressure on the system to do that. The other pressure is to do our assessments properly, so we're making sure that the research is robust and it is giving us all the information we need to assess. Another issue would be resourcing these processes—which the government often doesn't do properly—which causes delays.

I wonder if there is an agreement among industry and the environmental community on this issue that there might be timelines set, but there might be a bit of a safety valve so that the appropriate research can take place.

That's for whoever wants to go first.

[Dr. Elaine MacDonald]

To explain the timelines recommendation, the timeline that we're frustrated by right now is the lack of a timeline between the proposed risk assessment being published—most of the work has been done at that point and there's a proposed risk assessment that's public comment—and then finalizing that risk assessment. That is where there's a gap and there is no timeline in CEPA.

In our experience, especially for what you might call more controversial substances, we've seen waits of five-plus years to see final assessments. Risk management can't start—and it doesn't start for years after that—until the assessment is finalized and that substance is added to schedule 1. They can then move forward with doing instruments and regulations to manage the risk.

Having this long period and gap between proposed and final is the real problem. If there is the need for additional research that wasn't done at the proposed step in the draft risk assessment, we put in this opening to extend that one-year timeline to allow for that, but that is the frustration we're dealing with.

[W. Scott Thurlow]

Don't take my word for it. Ask the Auditor General. The Auditor General, in reviewing the chemicals management plan, said that one of the key issues on the accountability and for the confidence of Canadians was how long the process takes.

Now, I know what some of those hurdles are: the cabinet directive on streamlining regulation, international trade obligations and notifying our partners about what instruments we're going to put in place. Also, elections slow down risk assessments as the machinery of government stops. In the timeline you're talking about—2006, 2008, 2011—there were more elections in Canada than there were in Italy.

There are extraneous variables—

[The Chair, Liberal, Francis Scarpaleggia]

Now, let's not exaggerate, Mr. Thurlow.

[Voices]

Oh, oh!

[W. Scott Thurlow]

Well, it was close.

The machinery of government stops when the House is dissolved, and that really does slow things down.

[Terry Duguid, Liberal, Winnipeg South, MB]

The next area where I think there's a pretty wide divergence is the whole area of confidential business information. We want to protect innovation and IP. On the other hand, we want to be as transparent as possible. If things are being hidden that should be public, that is not a good thing. Is there some sort of sweet spot where industry and the public would agree?

Mr. Thurlow, you mentioned that you don't mind sharing information with the government. Could there be some sort of independent body or mechanism that would do these assessments?

Also, then, on the whole TSCA process, I'm unfamiliar with it. Are we ahead of the U.S. or behind?

[W. Scott Thurlow]

I'll answer the TSCA question first because it's an important one.

TSCA is framed after the Canadian Environmental Protection Act. Barack Obama signed it into law after it passed through the U.S. Senate on a universal voice vote; it's a bipartisan bill that was supported.

Now, they're a little slower at assessing chemistries than Canada is. We've done approximately 4,300 already or are on the end of doing 4,300. They'll get to that number in about 2130. They're taking a much more deliberate approach. Again, that's their system, and it's a different system.

[Terry Duguid, Liberal, Winnipeg South, MB]

Can I have a quick comment? I have 45 seconds. What about some sort of independent—

[W. Scott Thurlow]

I don't see the need for that, quite frankly. The reason for saying that is that the government does a very good job at holding information in a confidential way. I am very comfortable on the confidential business information with the original language of Bill S-5 prior to it being amended by the Senate.

[Dr. Elaine MacDonald]

I just want to note that TSCA does require auditing of a certain proportion of confidential business information claims, and the audits that the U.S. EPA has done have found that up to a quarter of them don't meet the bar partially or fully.

I've shared that information; I think there's a link to it in our brief. It just demonstrates that Canada is behind the U.S. with respect to how they're handling CBI requests.

[W. Scott Thurlow]

I think that's an unfair assertion, because CBI becomes CBI when somebody asks for it, so if the government is holding it until such a point that no one asks for it, it doesn't matter if it's CBI. It's when someone asks—

[Dr. Elaine MacDonald]

You can't ask for things you don't know about.