Reforming the Canadian Environmental Protection Act

Click here or on the pdf file to read the full report which I strongly recommend everyone read; it has lots of good information and recommendations. The exerpt below is what I feel is the biggest problem with the act.

 

Table of Contents

Summary 3

List of Recommendations 4

1. Introduction and Context 9

2. Categorization and Assessment of Substances 13

3. Insufficient Mandatory Timelines 17

4. Virtual Elimination 21

5. Protecting the Great Lakes 23

6. Consumer Products  25

7. Precaution and the Burden of Proof  27

8. Access to Information and Public Participation 29

About Environmental Defence: Environmental Defence protects the environment and human health. We research. We educate. We go to court when we have to. All in order to ensure clean air, safe food and thriving ecosystems. Nationwide. http://www.environmentaldefence.ca

About the Canadian Environmental Law Association: CELA is a public interest law group founded in 1970 for the purposes of using and improving laws to protect public health and the environment. Funded as a legal aid clinic specializing in environmental law, CELA represents individuals and citizens’ groups in the courts and before tribunals on a wide variety of environmental matters. In addition, CELA staff members are involved in various initiatives related to law reform, public education, and community organization. http://www.cela.ca CELA PUBLICATION #539

About PollutionWatch: PollutionWatch (www.PollutionWatch.org) is a collaborative project of Environmental Defence and the Canadian Environmental Law Association. The web site tracks releases and transfers of pollutants across Canada based on data collected by Environment Canada through the National Pollutant Release Inventory (NPRI). NPRI does not include data from all pollutants or sources. Visitors to the PollutionWatch web site can identify facilities in their home towns by searching by postal code, access “quick lists” of the facilities reporting the largest releases and transfers of pollutants in the country, get trends from 1995-2003, or create their own ranked lists of facilities by province, industrial sector, or corporation.

Summary

Canadians are concerned about the impact of pollution on the environment and their health. Children, including the developing fetus, are especially vulnerable and experience greater exposure than adults. Air pollution in particular is expensive, contributing to billions of dollars in health care costs. In a recent survey, Canada ranked last, or near to last, out of 29 developed countries when compared for several different air pollution releases.

The Parliamentary review of the Canadian Environmental Protection Act, 1999 (CEPA) must address key gaps in federal law that enable ongoing exposure to toxic substances.

There is a huge backlog of chemicals in use – over 23,000 – that have not been fully evaluated for health and environmental impacts. Exposures for many chemicals of concern occur through the use of consumer products.

Some progress is occurring in deciding on the worst chemicals – those that are toxic, persistent, that build up in the environment and create the greatest exposure. But, the work to short-list, or categorize, these chemicals has problems. It is based on old and incomplete information. Continued efforts to categorize and assess chemicals need to occur within a stronger and modernized legal framework.

• Mandatory deadlines and stronger, less discretionary provisions are needed across multiple stages in the process to quickly review the worst chemicals and, where appropriate, eliminate them.

• Toxic substances assessment and management must take greater account of the many sensitive stages of human development.

• New requirements are needed to update the list of chemicals in use and to track changes, in use and emissions, over time.

• Greater accountability is necessary, within government and industry, to meet new and strict timelines. More resources are necessary in Health and Environment Canada to do the job.

The Great Lakes are a threatened national treasure in need of special protection under CEPA. Canada needs to honour past commitments to eliminate Great Lakes pollution and should do so by means of special provisions within CEPA.

Finally, CEPA must address the serious gap in federal regulation of toxic exposures from consumer products.

7. Precaution and the Burden of Proof

The Problem

Although CEPA requires the federal government to apply the precautionary principle, more weight is given in practice to social, economic and legal considerations than to protecting health or the environment. The Act does not operationalize the principle by setting out how it shall be explicitly used at every stage of decision-making processes. A key means of putting the precautionary principle into practice is reversing the burden of proof about chemical hazards, called a reverse-onus approach. However, in practice, the burden of proof rests largely with the government, and by extension the Canadian public, to demonstrate chemical hazards, while multiple chemical exposures of uncertain toxicity continue.

The current situation

The precautionary principle is mentioned four times in CEPA 1999:

• In the Preamble;

• In the Administrative Duties section, requiring the Government of Canada to exercise its powers in a manner that applies the precautionary principle;

• In the section establishing and setting out the duties of the National Advisory Committee (“in giving its advice and recommendations, the Committee shall use the precautionary principle”: subs. 6 (1.1)); and

• In s. 76.1 (while conducting and interpreting the results of certain screenings and assessments, the Ministers of Health and Environment “shall apply a weight of evidence approach and the precautionary principle.”)

The Act is part of a larger federal government framework based on “risk,” however: it is a framework that emphasizes risk assessment, risk management and risk communication over early avoidance of hazards. This framework also tends to give more weight to “legal risk” and social and economic considerations than to environmental and health hazards. In addition, existing broader federal policies on “risk” and “precaution,” have the effect of allocating greater weight to economic and competitiveness considerations than to human health and environmental protection considerations.

Precaution can be implemented in part by tailoring discretionary provisions so that decisions must be made that emphasize preventing harm, rather than tolerating risks. Such explicit precautionary language should be added at key stages of the CEPA toxic substance management process.

During the categorization exercise, for example, the burden of proof is now on the government to show that substances are toxic under CEPA before regulatory or other management actions are taken. While the agencies can request data from industry, this power is not extensively used and more important, environmental exposure to these existing substances is ongoing while any evaluations occur.

Where categorization indicates that a substance is persistent, bioaccumulative and inherently toxic (PBit), industry should be required to demonstrate why the substance should not be considered CEPA-toxic, thus reversing the onus in considering persistence, bioaccumulation and inherent toxicity. Even greater environmental and health protection would be afforded if the additional consideration of health effects, noted in the recommendations in Section 3 above regarding categorization and assessment of substances, were implemented.

Substances other than PBiTs that are identified through categorization as requiring priority assessment should be considered CEPA-toxic unless data demonstrating otherwise are provided by the proponent. A similar explicit onus should be placed on proponents of substances that are prohibited or severely restricted in other jurisdictions.

In contrast to the situation with categorizing existing substances, the New Substances Notification program does require that a small set of data be submitted, before a chemical not listed on the Domestic Substances List can be newly introduced to the Canadian market.

Compared to the revised and soon to be promulgated Pest Control Products Act (PCPA), CEPA makes no explicit mention of where the burden of proof lies. The new PCPA places the onus on manufacturers to demonstrate acceptable risk of pesticide products before they can be put on the market.

The coming Registration, Evaluation and Authorization of Chemicals (REACH) Regulation in Europe will place the onus on manufacturers by requiring data for anything that is on the market. Since Europe is the largest chemicals market in the world, Canadian and other internationallysituated companies will be meeting this standard and could do the same for the Canadian market. It should not be considered onerous or unreasonable to modernize and harmonize toxic substances regulation under CEPA in a manner similar to that already done for pesticides in the revised PCPA.

Recommendations

24. CEPA needs stronger authority to use the precautionary principle to ban or significantly reduce the most dangerous substances. Such authority would better enable thedepartments to eliminate or reduce dangerous risks in the absence of full scientific certainty about toxic substances. Explicit precautionary language should be added at key stages of the CEPA toxic substance management process.

25. The burden of demonstrating safety should be on those wishing to introduce new chemicals or re-introduce banned chemicals, but only once they could demonstrate safety after a comprehensive evaluation. The Authorization process under REACH and portions of the revised registration regime of the Pest Control Products Act offer examples of this approach.

26. Existing language that limits actions only to those that are “cost-effective” should be removed from the definition of the precautionary principle, in order to better place the emphasis on protecting the environment and human health.

27. The CEPA review should also consider overarching federal government policies that deal with risk management and regulation-making and their impact on CEPA implementation.

28. Industry should be required to demonstrate why a substance that is persistent, bioaccumulative and inherently toxic (PBiT) should not be considered CEPA-toxic. Substances other than PBiTs that are identified through categorization as requiring priority assessment should be considered CEPA-toxic unless data demonstrating otherwise are provided by the proponent. A similar explicit onus should be placed on proponents of substances that are prohibited or severely restricted in other jurisdictions.

8. Access to Information and Public Participation

The problem CEPA is inadequate in providing information to the public on substances in our environment and the decisions made involving them. This limits public access to information as well as opportunities for public participation. Though citizens have the right to sue under the Act, CEPA creates too many barriers to make the provisions useful.

The current situation

Part 2 of CEPA 1999 includes provisions for an electronic “Environmental Registry” (called the CEPA Registry). Although the Act does not require it, the registry is electronic and found on Environment Canada’s website, facilitating access to current and archived policy and regulatory proposals, as well as permits/approvals for transboundary movements of hazardous waste and hazardous recyclable materials, for disposal at sea, and for manufacturing, importing or exporting ozone-depleting substances.

In order to better involve the public in environmental protection decision-making, the scope of the CEPA registry should be expanded to match that of the Ontario Environmental Registry. For instance, information gathered on substances covered by CEPA should be included. The Minister of the Environment’s current powers in section 46 of CEPA to create inventories of information gathered on substances and relevant science, should be tightened.

Opportunities for public involvement also need to be enhanced. CEPA is weak on opportunities for involvement in the granting of permits (e.g. for disposal at sea) and of waivers (e.g. under the new substances provisions or from vehicle or engine emission standards).

The main provisions in CEPA concerning confidentiality of business information are found in sections 313 to 321. More specific rules for the submission of information appear in different regulations and guidance documents issued under the act.15 The existence of the various rules makes it difficult to assess the balance that is struck between confidentiality and the need for information about potentially hazardous substances to be made public.

Section 313 of CEPA allows a person to file a request that information be treated as confidential; the request must be made in writing and contain any supplementary information that may be prescribed.

Section 315 provides for “public interest disclosure”, where public interest is defined in terms of “public health, public safety or the protection of the environment.” The possibility of such disclosure is subject to an onerous test: “the public interest in the disclosure [must] clearly outweigh in importance (i) any material financial loss or prejudice to the competitive position of the person who provided the information … and (ii) any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure” (emphasis added).

Although – and perhaps because – information on the use of this provision is not available, it seems likely that its application tends overwhelmingly in favour of maintaining confidentiality. The lack of reporting on the use of confidentiality provisions also makes it difficult to assess them.

The disclosure provisions do not specify to whom disclosure will be made, and in what circumstances. For example, subsection 316 (1) deals with sharing of otherwise confidential information with other governments. This provision, at least, does not appear to contemplate sharing of information more publicly.

In terms of citizens’ right to sue under CEPA 1999, the Act created a new, statutory cause of action called an “Environmental Protection Action” (ss. 22-38). However, a series of obstacles to launching such an action makes it highly unlikely that the provisions will ever be used. Actions are limited to instances where the Minister has “failed to conduct an investigation and report within a reasonable time,” or to situations where the Minister’s response to the investigation was “unreasonable.” In addition, “significant harm to the environment” must have already occurred, a significant risk of harm being inadequate. Finally, an action cannot be brought if it can be argued that the alleged conduct was taken “to correct or mitigate harm or the risk of harm to the environment or to human, animal or plant life or health.”

The CEPA Annual Reports published to date list no information on Environmental Protection Actions launched. As public interest advocates predicted when the current Environmental Protection Action wording was proposed for CEPA 1999, the requirements have proven too onerous for the provisions to be used.

CEPA establishes a National Advisory Committee to advise “on regulations proposed to be made under subsection 93 (1),” “on a cooperative, coordinated intergovernmental approach for the management of toxic substances” and “on other environmental matters that are of mutual interest to the Government of Canada and other governments …” (paras. 6 (1) (a)-(c)). The deliberations of the Committee are neither reported nor made public. Only a very brief summary of the Committee’s activities are printed in the CEPA Annual Reports. More transparency is needed into the role and activities of this Committee.

Recommendations

29. The Government of Canada should be required to maintain a publicly-available inventory of information gathered (e.g. relating to the properties of substances) under CEPA, and to publish it on the CEPA Registry.

30. The environmental registry should inform the public of • Notices, including notices of objection; • Any proposal for the issuance of an approval, regulation, revision or revocation of a regulation, order, or any policy; and • Any environmental protection actions under section 22.

31. New provisions should be included in CEPA allowing for the publication of notices of proposals for decisions, and notices offering opportunities for public comment on those impending decisions.

32. The committee should call evidence and review the actual use of confidentiality claims under CEPA, in order to determine how and to what extent the provisions have been used to protect “the interest of public health, public safety or the protection of the environment,” and whether the provisions need to be strengthened in order to enhance the information available to the public.

33. The preconditions to bringing an environmental protection action should be removed.

34. More public information on the activities of the National Advisory Committee, and public access to its meetings, is required in order to enhance public involvement in decision-making.

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