This page has been archived on the Web

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Skip booklet index and go to page content

ARCHIVED - Summary Report of Web-Based Comments to Assist Environment Canada and Health Canada in Preparing for the Parliamentary Review of the Canadian Environmental Protection Act, 1999

Prepared by :
Hajo Versteeg
The Intersol Group

Submitted To:
Environment Canada and Health Canada

25 April, 2005

Return to Table of Contents

Introduction / Background

The Canadian Environmental Protection Act, 1999 (CEPA 1999) includes a provision requiring that the Act be referred to Parliament for review five years after its entry into force. Given that the Act came into force March 31, 2000, it must be referred to Parliament by March 31, 2005, and the review will begin sometime thereafter.

The Parliamentary Committee assigned to review CEPA 1999 will have up to one year from the time it begins to undertake the task and submit a report to Parliament on the changes it recommends to the Act and/or its administration. The Committee may be granted an extension. From the point of tabling its report in Parliament, the Government of Canada will have 120 days to respond to the recommendations made by the Parliamentary Committee. If the report and government response call for amendments to the legislation, the final phase will consist of either amendments or a new bill, which will follow the normal parliamentary process. Given these timelines, a revised CEPA might be expected to come into force around 2008. However, identified administrative improvements in the implementation of the Act do not require legislative amendments and could commence as soon as practical.

A parliamentary committee will be undertaking the review of the Act. The federal Ministers of the Environment and Health intend to provide their advice to the Committee. In order to assist in their preparations for the review, and as well, to help Canadians prepare for the Review, Environment Canada and Health Canada (sometimes referred to as "the departments" in this Report) have undertaken a number of initiatives, including:

  • the release in late 2004 of a CEPA 1999 Scoping Paper (Scoping the Issues: Preparation for the Parliamentary Review of the Canadian Environmental Protection Act, 1999) to provide background information for the public engagement process to assist Environment Canada and Health Canada in preparing for the Parliamentary Review. The CEPA 1999 Scoping Paper is an extensive document covering the context for the review, broad themes addressing the Act and specific issues that have been identified as priorities for consideration by the two departments in preparing for the Parliamentary Review;

  • an interactive website, specifically designed around the CEPA Review activities was set up within the CEPA Registry. The website provides detailed information on CEPA 1999, its policies and processes, and additional background information, including: fact sheets on various aspects of CEPA 1999, a comprehensive plain language Guide to Understanding the Canadian Environmental Protection Act, 1999 and the CEPA 1999 Scoping Paper. (Note: this section of the Registry will continue to provide detailed information throughout the Review process). The website also allowed for electronic inputs on the CEPA 1999 Scoping Paper or any other matter any person wished to raise with respect to CEPA 1999 and the Review process; and,

  • six public workshops held across Canada in late January and early February, 2005, to allow any one with an interest in CEPA 1999 to express their views.

The stated purposes of the web-based engagement process and the public workshops included:

  • providing background information to help Canadians develop their views on CEPA 1999 issues;

  • hearing from Canadians about their experiences with CEPA 1999 and in particular the challenges they feel need to be addressed during the Parliamentary Review; and,

  • inviting feedback from Canadians on the issues that Environment Canada and Health Canada officials identified in the CEPA 1999 Scoping Paper as priorities for consideration in preparing for the Parliamentary Review.

This summary report highlights the key issues, options and messages that were raised in the web-based comments. The consultants who were engaged to facilitate and report on the public workshops were also responsible for preparing this summary report. Forty-four commentaries were received. These individuals who commented were affiliated with a broad cross-section of interests including: municipal governments, Aboriginal organizations, industry, business and the natural resource sectors, academia (including student associations), environmental non-government organizations, public health groups and individual members of the Canadian public.

Return to Table of Contents

Structure and Content of This Summary Report

CEPA 1999 is a sizeable, complex Act that addresses a varied and large number of topics. In order to provide some structure and manageability to the process, the CEPA 1999 Scoping Paper focused on five broad themes, as follows: Effective Decision-Making; Timely Access To Information; Sound Science And Research; Performance Promotion; and, Education-Promoting Understanding. Each theme provided detailed background context, identified several issues and included several questions that commentators could address. The website allowed for electronic inputs/responses on the specific questions raised under each theme in the CEPA 1999 Scoping Paper. The website also allowed responders to raise any other matter with respect to CEPA 1999 and the Review process.

The summary of views presented in the following sections is organized in accordance with the questions raised under each of the five themes detailed in the CEPA 1999 Scoping Paper as most people responded in this way. Comments that did not address a specific question are summarized at the end of this report in the "General Comments" section. This Report strives to ensure that all of the key issues that were raised in the commentaries are presented fairly. However, "the details" that often accompanied a specific view, and examples used to illustrate these views are not presented in this Summary Report. Readers who commented are cautioned that the issues they raised are not reported verbatim. The views detailed in this Report are not attributed to any particular individual or organization. Readers requiring more context around each of the questions are encouraged to go to the CEPA 1999 Scoping Paper

Return to Table of Contents

Summary of Comments on Effective Decision-Making

Q 3.1. What are your views on implementing pollution prevention?

Several commentaries suggested that CEPA 1999 does not effectively emphasize pollution prevention. Concern was expressed that very few pollution prevention plans are underway. The implementation of pollution prevention within CEPA 1999 is restricted by triggers that are too narrow and a lack of focus on safer substitutes. Revisions to CEPA 1999, should use pollution prevention strategies to stimulate innovation and catalyze green chemistry and cleaner production, encourage sustainable product design and the use of safer chemicals.

It was suggested that CEPA 1999 should require an evaluation of pollution prevention plans on an annual basis. These reports should be publicly available. The list and scope of substances requiring pollution prevention plans should be extended. Pollution prevention plans should be fully enforceable.

Several commentaries were generally comfortable with the current structure of pollution prevention in CEPA 1999 and its implementation. Some of these commentaries noted that it is important to distinguish between pollution prevention plans for toxic substances which are under the control of the Minister of the Environment and international air and water pollution plans where control is shared with Cabinet. Most of these commentators stressed that if regulations are to be used as a backstop for pollution prevention planning, they must be flexible enough to insure that those who have complied with pollution prevention plans are not penalized for the activities of parties who do not comply.

It was noted that both on- and off-site recycling should be considered as key components of pollution prevention.

It was noted that pollution prevention practices should actively promote the management of substances entering the environment at source.

Q 3.2. Should CEPA 1999 provide support for the objective of keeping-clean-areas-clean?

Some commentaries noted that CEPA should provide support for the objective of keeping-clean-areas-clean. A couple of commentaries stressed that the "no degradation" principle should complement the keeping-clean-areas-clean concept and that this should be applied throughout Canada. The no-degradation principle could be incorporated into the administrative duties section in CEPA 1999 to ensure that it applies to all actions taken under the act. Another commentary suggested that areas which are clean should be provided with a rating, to be publicized and celebrated.

Some commentaries noted that there is no reason to provide specific provisions in CEPA 1999 for keeping-clean-areas-clean. Nothing in CEPA 1999 precludes the application of this principle, and in any event, in most cases, other jurisdictions would be best suited to promote this concept.

Some commentaries noted that the CEPA 1999 Scoping Paper does not adequately describe why the objective of keeping-clean-areas-clean should be included in CEPA 1999, nor does it properly describe the concept. These commentaries generally saw no need incorporate an ill-defined concept into CEPA 1999.

Q 3.3. Does work under CEPA 1999 adequately consider the precautionary principle and the most vulnerable populations?

Several commentaries expressed the concern that the operationalization of CEPA 1999 does not adequately implement the precautionary principle nor does it protect vulnerable populations. Many of these commentaries noted that explicit language to ensure the effective protection of vulnerable populations should be included in CEPA 1999. The Pest Control Products Act was cited as a good model for incorporating explicit language for protecting vulnerable populations. The REACH model that places automatic restrictions on substances identified as being of concern was also cited as a better approach for operationalizing the precautionary principle.

Some commentaries noted that the definition and meaning of the precautionary principal needs to be updated to reflect a positive duty to protect public health and the environment. The definition needs to specifically reflect the concept of "harm" to the health of the environment and the Canadian public, rather than "damage". The phrase "cost effectiveness" should be deleted, as it is inappropriate to allow cost effectiveness considerations to mitigate the duty to protect the health of the environment and the public.

One commentary stressed the need to ensure that vulnerable elements of Aboriginal societies must be considered in the further development and implementation of CEPA 1999.

Several commentaries noted that the current operationalization in the precautionary principle is adequate. There is no evidence to suggest any problems have arisen under the current legislation and the operationalisation of the principle. Therefore, no changes in the legislation seem warranted. With respect to protecting vulnerable populations, these commentaries generally stated that CEPA currently provides adequate flexibility to use different safety margins and requirements to deal with vulnerable populations, so the Act does not need to be amended. Provisions for vulnerable populations in the Pest Control Products Act should be tested before being considered for inclusion in CEPA 1999.

Health Canada and Environment Canada need to ensure that the quality of risk assessments under CEPA is not compromised by inadequate resources or other pressures. The precautionary principle must continue to be based on rigorous, reputable and sound science.

One commentary noted that any changes in the application of the precautionary principle under CEPA 1999, should be consistent with the federal government's document, A Framework for the Application of Precaution in Science-based Decision Making about Risk, issued in 2004.

Q 3.4. Does CEPA 1999 adequately enable effective transparency, access to information and opportunities for public participation?

Several commentaries felt that transparency, access to information and opportunities for public participation detailed in CEPA 1999 are not adequate. Generally these commentaries stressed that CEPA 1999 is a complex and lengthy Act and that more must be done to ensure that the general public is provided with plain language explanations of the act, and that opportunities for participation and access to information are effectively communicated to all Canadians.

Several commentaries did feel that CEPA provisions relating to transparency, access to information and opportunities for public participation are adequate. However, many of these commentaries also expressed concern regarding minimal public uptake of some of these opportunities and that efforts should be made to ascertain the reasons for the minimal uptake.

Q 3.5. Are there improvements needed to the CEPA Environmental Registry to facilitate better access to information and informed participation in decisions related to CEPA 1999?

Several commentaries stressed that in the CEPA 1999 Registry has yet to fulfill its potential as a tool for public information and engagement. In particular, the Registry needs a better search engine and process mapping. One commentary did state that the current Registry was adequate.

Q 3.6. Should the Parliamentary review of the Act be increased from every five years to every seven years?

Several commentaries expressed the view that the current five-year review schedule is appropriate, primarily because of the rapid evolution of the state of knowledge pertaining to the environment and human health.

Several commentaries expressed the view that the review period should be increased from five to seven years, primarily to allow significant legislative changes to be fully implemented and fully evaluated. Some of these commentaries noted that the CEPA review cycle, if increased to seven years would be consistent with the review periods for the Canadian Environmental Assessment Act and the new Pest Control Products Act. A few commentaries suggested that a 10 year review cycle might be appropriate.

Q 3.7. If Ministers choose the route of no further action under CEPA 1999 (i.e. a non-CEPA measure is pursued), should conditions be put in place to ensure effective accountability for protection of the environment and human health?

Some commentaries rejected the idea or expressed reservations about having substances, which were assessed under CEPA, managed by another department or jurisdiction. However, most commentaries did stress that where federal risk managers decide that an issue is best managed outside of CEPA, the federal government must still ensure that such decisions are fully transparent and carefully monitored, and must remain fully accountable for ensuring that the toxic substances in question are managed effectively.

Many commentaries acknowledged that identifying who is in the best position to manage a particular risk is a complex issue, in part because of the extensive legislation addressing the environment and health. Any integration and harmonization among governments and programs must include timelines for action that take into consideration the legal requirements of other relevant legislation (for example, environmental assessment procedures, approval processes).

Several commentaries expressed concern that overlap and duplication among environmental and health laws across jurisdictions can cause significant inefficiencies. These commentaries urged the federal government to use the CEPA review to work towards improving regulatory cooperation and reduction in duplication and overlap. One commentary emphasized that the failure to work cooperatively across federal departments is particularly problematic where an industry is governed by international standards. In these situations, the means to reach national environmental benchmarks set out under CEPA should include voluntary measures, best practices and incentives to complement existing international requirements.

Some commentaries noted that relying on the actions by other jurisdictions or actors is highly uncertain and should only be an option of last resort, particularly in relation to managing toxic substances.

One commentary stressed the value of a single national standard for chemicals management across Canada, under CEPA 1999. This will instill trust in the regulatory system and effectively utilize technical knowledge and government resources.

Q 3.8. If a non-CEPA 1999 measure is pursued, should CEPA 1999 play a backstop role?

Some commentaries noted that CEPA should play a backstop role, but only when it has been demonstrated that the non-CEPA 1999 measures are not producing the desired results. In this regard, regulations should be flexible enough to avoid any adverse impact on those who have achieved the objectives. The flexibility provided in the Transportation of Dangerous Goods Act was cited as a model for building additional flexibility into CEPA 1999.

Some commentaries stated that CEPA should play a backstop role, but CEPA 1999 should be automatically invoked if there is ambiguity; the Act should take precedence. One commentary proposed that, in the case of overlapping jurisdictions, the Act with the strongest penalties (which should be CEPA 1999) should take precedence.

Some commentaries noted that the backstop concept should also ensure that duplication or overlap with existing provincial and municipal activities are avoided.

One commentary stressed that the role of CEPA 1999 as a backstop and reliance on non-CEPA measures is not supported and should not be pursued. To date, there has been no rigorous, comprehensive review of the outcomes, effectiveness or efficiencies of non-CEPA 1999 measures.

Q 3.9. Should CEPA 1999 provide the flexibility to tailor administrative and equivalency agreements to appropriate circumstances?

Some commentaries expressed the view that CEPA 1999 should not be amended to provide flexibility to tailor administrative and equivalency agreements to appropriate circumstances. Some of these commentaries noted that in their view the current equivalency and administrative provisions should be tightened. The inappropriate use of these agreements could hinder or undermined the effective implementation of CEPA objectives. The time period for agreements should not be extended beyond five years. CEPA should specifically require that the capacity of provincial or territorial agencies for carrying out their responsibilities under these agreements must be determined before the federal government enters into such agreements. Also, more detailed performance reporting requirements need to be incorporated into CEPA 1999.

Some commentaries noted that equivalency and administrative agreements should include accountability, transparency and public participation provisions equal to or greater than those found in CEPA 1999. The federal government must also maintain its strong presence and in particular, must monitor the program to ensure consistent levels of protection for all Canadians. The federal government must also be able to respond quickly, if the agreement is not respected.

Some commentaries did agree that CEPA 1999 should provide the flexibility to tailor administrative and equivalency agreements to appropriate circumstances. It was noted that, in accordance with the smart regulation agenda, flexibility tailored to appropriate circumstances, would allow CEPA 1999 to do a better job in avoiding duplication and overlap by taking into consideration the work and expertise of other jurisdictions. Some of these commentaries stressed that greater use should be made of equivalency and administrative agreements, while ensuring appropriate safeguards are retained.

Q 3.10. What are your views on the need for coherence with Aboriginal Peoples in policy and instrument development?

Greater efforts must be made to engage Aboriginal peoples in effective and appropriate consultation, with adequate time to examine issues, sufficient information on which to make informed decisions, and accommodation of the concerns of Aboriginal peoples, as appropriate. Aboriginal peoples need training, human and financial resources and equipment to conduct research, to remediate environmental damage and where necessary to relocate. Lack of adequate resources will stymie efforts to take on greater responsibility for environmental matters. Recognition of the right to self-government must be accompanied by the tools necessary to fulfill this mandate. Aboriginal peoples are seeking a government-to-government relationship, which will require amendments to CEPA 1999 to reflect this approach.

An analysis of the application of CEPA 1999 within Aboriginal land claim regions is required to determine the relationship of the Act to the provisions afforded Aboriginal peoples under land claim agreements.

CEPA 1999 must include Aboriginal governments, representing First Nations, the Métis Nation and the Inuit Tapiriit Kanatami in all of its consultation procedures. Representation on the CEPA NAC must be amended to include representatives of all Aboriginal peoples in Canada, including First Nations, Inuit and Métis representatives. The gap created by the definition of "Aboriginal governments" needs to be addressed in a manner that facilitates greater participation by Aboriginal peoples.

Q 3.11. What are your views on managing toxics associated with products?

Some commentaries stated that CEPA should address toxics at all stages in their life cycle, including toxics in products. All potential hazards, including correct disposal methods should appear on the labels of consumer products, including all cleaning and household products. Moreover, there should be a clear focus on the design of products that eliminate toxic substances, rather than managing them at the end of the product life cycle.

Some commentaries stated that there is no compelling reason why CEPA 1999, should manage toxics associated with products on a general basis or at that any immediate changes are required. Careful consideration should be given to discussing why CEPA 1999 should assume this role and if so, the implication to the Hazardous Products Act and the Canada Health Protection Act to avoid overlap and duplication.

Q 3.12. How should CEPA 1999 interface with other federal authorities for the management of products?

One commentary stated that CEPA 1999, should not duplicate or overlap other federal authorities addressing the management of products. CEPA provisions for product management should be very specific and should only be made if required.

One commentary stated that CEPA should take precedence over other federal authorities for the management of products.

Q 3.13. In the context of a federal strategy to build on existing legislation, is the residual role that CEPA 1999 serves adequate for assessing and managing products of biotechnology which are not covered under other federal legislation?

Some commentaries noted that CEPA 1999 must become the focal point for federal legislation on biotechnology in Canada. The regulatory capacity of Health Canada and Environment Canada must be strengthened to ensure comprehensive and effective regulation of products of biotechnology. Accurate labeling should also be part of this process to enable consumers to make informed decisions. CEPA 1999 needs to include liability measures for biotechnology products that address the environmental escape of genetically modified organisms.

Q 3.14. Is the Act adequate for assessing and managing emerging developments of biotechnology?

Some commentaries noted that the biotechnology provisions in CEPA 1999 need to be significantly strengthened. Additionally, there is a need to provide a product approval structure as opposed to the toxicity assessment approach. Part Six in CEPA 1999 needs to require the ministers to apply the precautionary principle and provide an affirmation of proof of safety prior to the introduction into the environment and into our food supplies of products of biotechnology. CEPA 1999 must also accommodate the new Public Health Agency of Canada.

Some commentaries noted that the management of biotechnology is an issue with multiple dimensions, much of which is outside of the scope of CEPA 1999. In this context the current role that CEPA 1999 plays in assessing and managing animate products of biotechnology is appropriate. The regulation of biotechnology should be done by the various federal departments that are most familiar with the particular products requiring assessment and management. CEPA 1999 should continue to provide a backstop for products not covered under other federal legislation, but it's current authorities should not be expanded.

Q 3.15. Should CEPA 1999 authorize remedial measures with respect to animate products of biotechnology?

A couple of commentaries agreed that CEPA 1999 needs to clearly impose liability for the escape of products of biotechnology. It should also include the power to require remedial actions, including a requirement that measures to respond to unintended escapes are detailed prior to an approval for use.

Q 3.16. What are your views on the regulatory gaps with respect to federal activities and lands and with respect to Aboriginal lands?

There is currently a lack of environmental management regimes that apply on reserves lands. Federal government must recognize the inherent right of Aboriginal peoples to govern themselves in these matters, and must support the capacity of Aboriginal peoples to undertake the necessary work to develop the appropriate legal regimes. Aboriginal peoples fully expect that any proposals to amend CEPA 1999, particularly as they relate to Aboriginal lands, must be preceded by full national consultations with Aboriginal peoples. Specific environmental problems detailed in these commentaries include: inappropriate management of solid waste, contaminated sites, contaminated traditional food and medicines, poor water quality and waste water systems, mercury release and damage from uranium mines.

One commentary noted that CEPA 1999 must be amended to clarify that representatives of Aboriginal peoples may initiate the investigation procedures and detailed in section 17 through 22 of CEPA 1999. The definition of Aboriginal lands in CEPA 1999, should be amended as follows: "Aboriginal lands" means the asserted traditional territory of an Aboriginal people, which may be wholly or partially shared by other Aboriginal people.

A couple of commentaries noted that CEPA 1999 has been almost a total failure in providing a framework for environmental protection in the operation of federal agencies and activities on federal lands. In the absence of specific federal regulations, CEPA 1999 should require the federal departments and agencies to comply with the relevant provincial/territorial environmental legislation affecting their operations. Alternatively, CEPA should include a general offence provision in Part 9 requiring that federal agencies carry out their activities on federal lands in a manner that does not result in the release of contaminants into the environment and should establish a permitting/approval regime for activities that may have such effects.

Some commentaries noted that CEPA 1999 should encompass all of Canada. Any devolution to provinces, territories, municipalities or Aboriginal governments, should only be approved if those entities have environmental regulations that are equal to or better than those in CEPA 1999.

Some commentaries noted that closing regulatory gaps is an essential but challenging process. Care must be taken to ensure that new jurisdictional overlaps and duplications are not created. Improperly drafted regulations and other risk management measures aimed at closing the gap for federal government activities may be inappropriate for private sector activities, which would inadvertently be subject to them. In short, a wide range of approaches, some of which are outside the scope of CEPA 1999 are needed to address this problem. Where appropriate standards are established, their delivery must include capacity-building, public education and awareness and compliance promotion and enforcement initiatives.

Return to Table of Contents

Timely Access to Information

Q 4.1. Should CEPA 1999 be clarified to require the Minister of Health to conduct monitoring studies?

Most commentaries agreed that CEPA 1999 should ensure that the Minister of Health can conduct monitoring studies. Some of these commentaries noted that this requirement should be mandatory, while other commentaries noted that the requirement should be enabling.

Almost all commentaries strongly recommended that CEPA 1999 should enable the Minister of the Environment and the Minister of Health to provide State of the Environment and State of Health reporting. One commentary noted that the State of the Environment and the State of Health reports should be provided at least every five years. One commentary noted the importance of biomonitoring studies to help researchers in understanding the contribution of toxicants to disease/disorders in populations, and to reducing their incidence and the resulting major social and medical costs.

A couple of commentaries felt that CEPA 1999 currently provides adequate authority enabling the Minister of Health to conduct monitoring studies, including biomonitoring studies and therefore does not need to be amended.

Q 4.2. Is there a need to improve the reliability of information reported under NPRI and the administrative efficiency of the program? If so, what type of changes to CEPA 1999 would you recommend?

Most commentaries agreed on the need to improve reliability of information reported under NPRI and the administrative efficiency of the program. Concern was expressed concerning the quality of information received, the quantity required of the various reporting sectors, and the inappropriate use of information and the timeliness of reporting. Specific suggestions for improvements to the NPRI included the following: more resources allocated to the program to allow the government to audit reports submitted to the NPRI; use of estimation techniques, and specific reporting software, should be mandated; substances that are recommended for addition to the toxic substances list should be automatically added to the NPRI, at the threshold appropriate to capture 90% of facility generated releases and transfers; records should be maintained for a minimum of 10 years; testing and estimation techniques should be publicly accessible; radionuclides should be reported to better track the nuclear waste and storage industries; quality assurance and quality control requirements should be standard procedure; the criteria for calculating releases of substances should be based on sound scientific principles; NPRI reporting requirements should be harmonized with other jurisdictions (domestic and other countries) to minimize duplication and to enable effective comparisons.

Some commentaries noted that the reliability of the information reported could be significantly improved if the complex reporting requirements currently required were simplified.

Q 4.3. Should the Act extend the information gathering powers in s. 71 to the Minister of Health?

Most commentaries noted that CEPA 1999 should extend the information gathering powers in s. 71 to the Minister of Health. Some commentaries cautioned that efforts at gathering information by the departments must be carefully coordinated to avoid duplication.

One commentary noted that the information gathering powers under s. 71 should be expanded to allow the government to require the collection of new data. It was also noted that CEPA should require the departments to make publicly available up-to-date inventories of the information gathered under CEPA 1999.

A couple of commentaries stated and that CEPA 1999 does not need to be amended to extend information gathering powers to the Minister of Health. Instead, Health Canada should work with Environment Canada to develop a coordinated approach for dealing with any information needed under section 71.

Return to Table of Contents

Sound Science and Research

Q 5.1. How may current resources and capacity be used to further develop and coordinate scientific and research partnerships and activities, in order to advance scientific objectives which support decision-making under CEPA 1999?

Most commentaries stressed the importance of credible scientific research and the need to further develop and coordinate scientific and research partnerships and activities to ensure effective decision-making under CEPA 1999. In essence, these commentaries identified the need to ensure adequate human and financial resources, as well as the need for vigorous efforts to strategically identify and coordinate research needs with credible domestic and foreign (international and other national jurisdictions) initiatives. This would allow Canada to contribute to and benefit from research that is occurring throughout the world. Most commentaries recognized that amendments to CEPA 1999 would not be necessary to promote this objective.

Some commentaries noted that Aboriginal peoples have little awareness of research activities of CEPA 1999 relating to environmental and human health, the issues that are addressed, where the information is stored, or how to access it. Concern was expressed that there is little dedicated research addressing the specific concerns and needs of Aboriginal peoples. Dedicated research of relevance to Aboriginal peoples, conducted by Aboriginal peoples is required to help close this gap. This information must inform the public policy debate.

A couple of commentaries flagged concern about the lack of independent science that is used by Environment Canada and Health Canada to support decision-making under CEPA 1999; most information used for a these decisions is provided by industry proponents. These commentaries felt it would be vital for governments to have the capacity to conduct independent studies and, in this regard, resources to do this work must be made available.

Q 5.2. How can Environment Canada and Health Canada most effectively include Traditional Aboriginal Knowledge in their decision-making processes?

Several commentaries expressed the need to better Integrate Traditional Aboriginal Knowledge into all aspects of CEPA 1999 decision-making. At the same time, these commentaries stressed that accessing and using this knowledge must be done in a respectful manner, which includes permission to use the knowledge and recognition of proprietary considerations. Some suggestions for better integrating this knowledge included: amending the administrative duties of CEPA 1999 to incorporate the consideration of Traditional Aboriginal Knowledge in all CEPA 1999 decision-making functions; working with Aboriginal groups (communities and Elders) at the earliest stages in the scientific information gathering processes; and, training departmental personnel in Aboriginal awareness, including the value of Traditional Aboriginal Knowledge.

One commentary noted that the Act should recognize Traditional Ecological Knowledge, as well as Traditional Aboriginal Knowledge.

Q 5.3. With respect to sound science and risk assessment of existing substances, what are your views on Environment Canada and Health Canada's plan to: use the tools provided by CEPA 1999 in the most efficient manner possible; identify opportunities and methodologies for grouping substances together by class or sector for risk assessment; and seek collaborative opportunities to improve databases and reduce resource requirements and timelines for assessments of existing substances?

Several commentaries strongly supported the stated intention of Environment Canada and Health Canada to focus more on classes of substances instead of proceeding on the current substance-by-substance approach. Some commentaries noted that CEPA processes should use and incorporate data generated by other jurisdictions (e.g. REACH, the High Production Volume Challenge program in the United States), but that the final decisions on toxicity and risk management strategies must remain with the Canadian government. Some commentaries noted that the responsibilities for providing enough information to establish that the substance and its current or proposed uses is acceptable remains with those who manufacture or use the substance. One commentary noted that CEPA 1999 should list health endpoints of concern for toxicity (e.g. carcinogenesis, immunotoxicity). One commentary noted that all of the information used in the risk assessment process of the specific substance should be made publicly available.

Some commentaries noted that Canada is a world leader in its approach to the current DSL categorization and screening initiative and that no changes should be made to CEPA 1999 pertaining to these provisions.

Some commentaries noted that the categorization criteria imposed by CEPA 1999 are unsuitable for addressing inorganic substances. While amendments to CEPA 1999 to address this problem were considered unnecessary, these commentaries stressed the need to ensure that the risk assessment process is sufficiently rigorous to clearly identify which form of an element and under what circumstances that part of the element may pose a risk that will require risk management.

One commentary noted that where other competent jurisdictions have concluded that a substance does not pose a threat to the environment or to human health, these findings should be taken into consideration in part to ensure that Canada remains on a competitive footing with its international competitors.

A couple of commentaries encouraged the government to treat "In Commerce List" substances as "existing" substances.

One commentary supported a single window approach to substance management in which all substances are managed by one set of rules, under one government department, with each registration requiring one submission.

One commentary noted that: the criteria for persistence presently used to evaluate chemicals is now widely accepted as being inadequate; the criteria defining bioaccumulation is inadequate for protecting mammals, birds and humans; the currently proposed definition of inherent toxicity is fundamentally unsound and does not reflect recent advances in the science of toxicology; and, the focus on hazard assessments of the DSL fails to address the real and compelling demands of the public.

One commentary noted that an immediate ban should be placed on substances that are persistent, bioaccumulative and inherently toxic, citing the European Union and several American States as blueprints for action in Canada.

Q 5.4. Does the Act provide adequate authority to support inter-jurisdictional cooperation in the implementation of the New Substances Program?

Most commentaries stated that inter-jurisdictional cooperation for new substances is a useful exercise, and should be promoted. Some commentaries noted that CEPA 1999 should be amended to expressly authorize inter-jurisdictional cooperation. Some other commentaries noted that there were no current legislative impediments to the use of data, including assessments from other jurisdictions if that information was submitted by the proponent. Some commentaries stated that CEPA should explicitly allow the Ministers to accept assessments from other jurisdictions, particularly from the United States. Some other commentaries did not support the concept of automatic approvals or "fast-tracked" assessments of substances approved in other jurisdictions.

A couple of commentaries favoured a single window approach for all new substance registrations in order to ensure that new substances are managed by one set of rules.

Q 5.5. Should CEPA 1999: provide the authority to remove any of the originating substances from the DSL if information determines that it is no longer used in Canada; and, clarify the authority for the submission of information regarding current use patterns and quantities in use of substances on the DSL?

Some commentaries agreed that CEPA 1999 should provide the authority to remove any of the original substances from the DSL if the information determines that the substance is no longer used in Canada. These commentaries also agreed on the need to clarify the authority for the submission of information regarding current use patterns and quantities in use of substances on the DSL.

Some commentaries argued that there are is no compelling reason for CEPA 1999 to authorize the removal of substances listed on the DSL. These commentaries are of the view that the DSL categorization and screening process will not result in an unreasonably increased workload issue in this area. These commentaries generally agreed that the current powers under s. 71 are adequate for requesting information regarding use patterns and quantities for substances on the DSL. One commentary suggested that DSL substances that are no longer in commercial use in Canada be given a low review priority.

Return to Table of Contents

Performance Promotion

Q 6.1. What are your views on the authorities to enforce the Act and its regulations?

Most commentaries expressed the view that the current enforcement provisions in CEPA 1999 are sufficiently broad that no further amendment is required. However, several commentaries expressed the view that the enforcement of CEPA is inadequate. There is a lack of commitment to enforce the Act and human and financial resources for enforcement are inadequate to do an effective job. Some of these commentaries stressed that full and consistent enforcement across sectors, and regions is needed to ensure environmental protection and a sustainable economy. One commentary noted that more authority should be given to private citizens to prosecute and that the Environmental Protection Action provisions in CEPA 1999 are ineffective because they are too complex.

Q 6.2. Should the Act provide an alternative approach to the designation of substances?

Some commentaries noted that there should be more use made of the designation by classes of substances rather than individual substances to expedite the process. The European REACH program was suggested as a model for improving some aspects of CEPA 1999.

A couple of commentaries stated that the designation of "CEPA toxic" should be retained for substances that meet the definition provided in s. 64 of CEPA 1999.

Several commentaries noted that clarification is required for the process whereby substances undergo risk assessment and a consequent determination for scheduling the substance.. In particular, many of these commentaries stressed that the current approach to assessing risk and designating substances is appropriate and should not be modified. However many of these commentaries also stressed that the reason for proposing or including substances on Schedule 1 must be clearly communicated to the public in plain language. Moreover, many of these commentaries stressed that the use of the word "toxic" was often misleading, and in certain cases imposes an inappropriate stigma on certain substances. To address this problem, some commentaries suggested that instead of the use of the term "toxic" a different designation, such as "substance to be managed" would be appropriate. Other than changing terminology, most of these commentaries argued that changing the approach to listing substances that have been determined toxic would involve a major and inappropriate restructuring of the current legislation. One commentary noted that adding a column to Schedule 1, describing the type of risk posed by the substances on the list, would be appropriate, and would be very helpful in guiding subsequent risk management steps.

Q 6.3. Should the Act provide an alternative approach to the listing of substances that have been determined to be toxic?

A number of commentaries agreed that where the government review concludes that the substance or a group of substances is "toxic" those substances should automatically be designated without the need to go to the Governor-in-Council for a decision.

One commentary noted that the approach used for the designation of substances needs to be amended to be more comprehensive and transparent. There is also a need to include regional or site-specific options under the designation. More comprehensive information regarding the dose of the substance and the effects (e.g., sub-lethal, acute) should be reported in the substance designation.

A number of commentaries were not in favour of removing the role of the Governor-in-Council in deciding whether substances are to be placed on Schedule 1. Some of these commentaries noted that the use of alternative approaches might overlook a science-base approach and may be subject to political influence. Checks and balances are needed in the legislation to ensure it remains fair and effective. Providing alternative approaches to listing substances that have been determined to be toxic would require a major overhaul of the Act, which is inappropriate at this time. A few commentaries noted that Schedule 1 should be renamed, for example, "List of Substances to be Managed".

Q 6.4. Should the Act include additional authority regarding economic instruments?

Several commentaries agreed that economic instruments can be effectively used as a supplement to encourage compliance and performance. However, they should not be seen as removing the need for regulatory action. The current CEPA provisions detailing "fees" should be expanded so that the government is not restricted to charging only for cost-recovery for administrative costs associated with program delivery. Emission trading systems that inform the release of toxic substances should not be permitted. Consumer goods which have hazardous qualities should have either a deposit/return schemes or "enviro charges" to cover remediation efforts.

One commentary in supporting the use of economic instruments in CEPA 1999 noted that deposit -- refund schemes focus on the collection stage of supply-side management of a product and that the focus should be redirected to the product design stage and the markets for recovered materials (demand-side management).

Some commentaries felt strongly that there was no justification for amending CEPA 1999 to provide additional authorities for economic instruments. CEPA should not provide the departments with discretionary authorities to set fees as economic signals. Any additional provisions should be revenue neutral in order to avoid adverse impacts on industry competitiveness and avoid what would clearly be considered a new tax.

Q 6.5. Should CEPA 1999 require an LoQ for every substance being added to the Virtual Elimination List?

Some commentaries agreed that an LoQ may not be required for every substance on the Virtual Elimination List. One commentary noted that the LoQ is a contrived measure that sets values that are unnecessarily high, difficult to support, and do not reflect the need to eliminate substances. The use, sale, import and export of Virtual Elimination substances should be banned or phased out. Wherever Virtual Elimination substances are by-products of other processes, production processes should be required to be modified to eliminate the generation of these substances. One commentary noted that if an LoQ is not available for a substance, the reasons why it is not available should be listed.

Some commentaries noted that issues surrounding the concept of virtual elimination were a major topic of debate during the review of the 1988 CEPA. The establishment of an LoQ was a recognition of the need to determine a stopping point for virtual elimination as virtual elimination is a different concept than "zero discharge". For these reasons, no changes should be made to CEPA 1999 with respect to any aspect of the virtual elimination or LoQ provisions.

Q 6.6. Should the Act enable export/import permits to adapt to changing circumstances?

Some commentaries agreed that CEPA should enable export/import permits to adapt to changing circumstances. The Minister should have the power to change permits that have already been issued and put time limits on how long a permit is valid. One commentary noted that the Minister should be mandated to change a permit where the circumstances surrounding the issuance of the initial permit have changed. Notices for waste movements should be required to be posted on the CEPA 1999 Registry for public comment.

One commentary noted that the Act should define recyclable materials separately from waste and should require separate regulations for recyclable materials and wastes.

Some commentaries noted that the Act currently provides extensive flexibility and opportunities for imposing conditions and criteria. Because export and import permits are issued for a specified time period, and are only valid if conditions in them are met, there is no need to provide CEPA 1999 with greater flexibility in addressing import/export permits. Changing an import/export permit before it expires will restrict the importers/exporter's ability to operate and meet contractual agreements.

Q 6.7. Are the export reduction planning provisions effective, or should they be clarified or removed from the Act?

Some commentaries noted that export reduction planning provisions are useful pollution prevention instruments and should not be removed from CEPA 1999. However current provisions are not effective and should be assessed and changes made to CEPA 1999 to improve their effectiveness. These provisions should also be extended to the import and export of non-hazardous wastes. The focus of the provisions should also be extended to generators of waste and hazardous recyclable materials that may be exported.

Some commentaries noted that the export reduction planning provisions should be removed from the Act for the reasons detailed in the CEPA 1999 Scoping Paper. One commentary noted that Environment Canada should work more closely with other governments to characterize the quantity and quality and waste and to encourage waste minimization, hazard elimination/reduction and diversion of waste for recycling and recovery. One commentary noted that the objective should be open borders in North America for waste and recyclables so that they can be managed/utilised in the most appropriate facility, regardless of the country where that facility is located.

Q 6.8. Should CEPA 1999 enable further alignment with emission control standards of other countries, including the U.S.?

One commentary noted that as an independent nation Canada should have its own standards that meet its own environmental needs. Therefore CEPA 1999 should not be amended to further align emission control standards with other countries.

Some commentaries did agree that CEPA 1999 should enable further alignment with other countries, provided and that the standards are equal to or are better than those used in CEPA 1999. Where standards are yet to be established, inter-jurisdictional cooperation should be encouraged to set firm standards.

Some commentaries stated that amendments to CEPA 1999 to further align emission control standards with other countries are not necessary. Alignment on emission controls issues, where environmental needs are often different, is a less important than alignment on product issues where trade is involved.

One commentary noted that CEPA 1999 fully recognises that vehicles and fuels are an intergraded system and that the total systems approach is the only way to ensure that maximum and immediate environmental benefits are realised from current and future emission control technology. Given this alignment, the industry already voluntarily provides warranties on emission control components. Consequently, it is redundant to consider further alignment with emission control standards for issues such as warranties as there will be no additional environmental benefits to be gained. Alignment with emission control standards in the United States is acceptable. However, alignment with other countries would not benefit the environment to the same extent and could jeopardize expected future progress.

Q 6.9. Should CEPA 1999 include authorities to address fuels as they move throughout the entire distribution system (from the refinery to the service station)?

Some commentaries agreed that CEPA 1999, should include authorities to address fuels as they move throughout the entire distribution system. One commentary noted that the process and the costs of following the fuel should be assumed by the companies realizing a profit from the sale of the fuels. One commentary noted that the vehicle emissions and fuel standards should meet or exceed California's proposed Clean Air Standards.

One commentary opposed the extension of CEPA 1999 beyond current authorities to address fuels as they move throughout the distribution system. The Fuels Information Regulations can provide the same information that is being proposed via the extended authority proposal in this CEPA 1999 Scoping Paper. Extending authorities in CEPA may lead to unintended consequences and unnecessary regulatory burden on the oil and gas industry.

Q 6.10. Should CEPA 1999 be clarified to ensure that the Minister can prohibit the sale or use of a new substance that has been manufactured in or imported into Canada prior to completion of its assessment?

Some commentaries agreed that CEPA should be clarified to ensure that the Minister can prohibit the sale or use of a new substance that has been manufactured in imported into Canada prior to completion of its assessment. The burden of proof regarding environmental and health safety should be on the manufacture or importer of any substance.

Some commentaries noted that the CEPA 1999 Scoping Paper did not provide enough information to justify the need for the proposed clarification in CEPA 1999. One commentary felt that the existing powers under sections 80 to 89 are adequate to address this situation.

Q 6.11. Are there benefits to the CEPA 1999 requirement that disposal at sea permits be published in the Canada Gazette for a 30 day period?

Some commentaries noted that publishing disposal at sea permits in the Canada Gazette for a 30 day period was useful and should be retained. These commentaries also noted that this public comment opportunity has not been used historically simply because the general public is not aware of it. Most members of the general public do not examine the Canada Gazette. The government should develop mechanisms to inform the concerned public when items of interest are posted in the Canada Gazette. Publication should also be included in the CEPA Registry.

One commentary noted that the disposal at sea provisions need to be improved with adequate permit fees to fund monitoring activities and measures that enhance public participation in disposal permitting. One commentary noted that disposal at sea is not a sustainable practice, is contrary to pollution prevention principles, and will inevitably lead to cumulative negative impacts affecting fish stocks and marine ecosystems.

One commentary noted that the 30 day publication requirement in the Canada Gazette imposes added delay and cost and is not an effective means to solicit public comment.

Q 6.12. Should more flexibility be accorded for a permit's term?

A couple of commentaries agreed that more flexibility not be accorded for extending the term of a disposal at sea permit. The permit should expire and any requests for a renewed permit should be reassessed.

The couple of commentaries felt that the process should allow for more flexibility. One commentary strongly supported the harmonization of the sampling program term (valid for a period of up to four years) with the disposal permit term.

Q 6.13. What are your views on the relationship between CEPA 1999 and the Fisheries Act pertaining to the disposal of substances in accordance with a disposal at sea permit?

A couple of commentaries noted that both CEPA 1999 and the Fisheries Act should apply. Where an apparent conflict occurs, the habitat protection provisions of the Fisheries Act should prevail in relation to the impacts of ocean disposal.

A couple of commentaries noted that where CEPA 1999 has been complied with the Fisheries Act should not prevail. This, in part, avoids overlap and duplication.

Q 6.14. Should CEPA 1999 authorize the designation of qualified persons as environmental emergencies officers?

A couple of commentaries agreed that CEPA 1999, should authorize the designation of qualified persons as environmental emergencies officers. Appropriate training and certification should be provided and environmental emergencies officers should be recruited.

Some commentaries noted that there is no case to be made for establishing a separate designation for environmental emergencies officers. At the very least, more detail and discussion is needed regarding the powers of emergencies officers. One commentary noted that by designating a separate group of officers to conduct inspections and creates the potential for duplication and miscommunication.

Return to Table of Contents

Education - Promoting Understanding

Q 7.1. What are your views on whether CEPA 1999 should be implemented differently or changed?

One commentator noted that an overall assessment of what is working and what needs improvement in the current CEPA 1999 needs to be completed before the Act is fundamentally changed. However, changes that incorporate the requirements for "Smart Regulations" should be implemented.

One commentary suggested that CEPA 1999 should promote a public education program along the lines of "PARTICIPACTION" to explain the economic and environmental benefits of recycling products and materials.

One commentary noted that the government should continuously strive to encourage incentives as opposed to disincentives as a means of promoting environmental and health policy.

One commentary noted that Environment Canada and Health Canada need to be proactive in facilitating the work of those sectors of society involved in improving public awareness and management. While the formal education system is an important part of that process, there is also a significant pool of motivated and qualified environmental educators associated with ENGOs that should be considered.

One commentary noted that while it is admirable and beneficial for the government to better promote understanding, it is still up to the regulated communities to comply with CEPA 1999.

Q 7.2. What are your views on using indicators and Environmental and Health Prediction tools to help generate information for decision makers?

The reinstatement of State of the Environment reporting and establishing a State of Health report was flagged as a means to assist in this process. One commentary also recommended the development of a State of Economic Sustainability report.

One commentary noted that developing indicators and prediction models could help avert government liability for industrial pollution.

Q 7.3. What are your views on risk communication?

One commentary noted that providing clear labeling of assessments of known risks on consumer packaging would be helpful in communicating risk. This information would enable consumers to choose the degree of risk they are prepared to take. One commentary noted that mechanisms must be established to ensure a third party review of the information used to make CEPA 1999 decisions.

One commentary noted that it is imperative that the reasons why a substance has been placed on Schedule 1 are readily available. The challenge will be to ensure that appropriate risk management and communications pertaining to Schedule 1 substances to fairly and adequately inform Canadians of the level of risk they represent. Governments should provide risk communication training to their spokespeople.

Return to Table of Contents

General Comments on CEPA 1999

Note: While most commentaries addressed the specific questions identified in this CEPA 1999 Scoping Paper, several commentaries also addressed various aspects of the text that are not necessarily captured by one of the specific questions. This part of the summary report details these general comments.

The eligibility for Aboriginal representation in the administration of CEPA 1999 is too limited. The government must develop a more cooperative and solid relationship with Aboriginal peoples.

Any amendments to CEPA 1999 must recognize the primacy of Land Claim Agreements. The non-derogation clause should be redrafted to include "asserted" as well as "existing" Aboriginal rights.

There is a need for the creation of an enforceable federal safety net for environmental emergencies if other jurisdictions in Canada do not provide a sufficient response to an environmental emergency.

One commentary noted its support for the External Advisory Committee on Smart Regulations framework for the modernization of Canada's regulatory structures and recommends the report is examined and the use to help develop an efficient and effective CEPA 1999.

Environment Canada and Health Canada need to interpret the data they collect in the Act for Canadians each year on progress on problems in order to put this information into perspective. Reporting needs to be simplified so that meaningful data is collected.

The definition of "toxic" in s. 64 of CEPA should be amended in accordance with international understanding of the term. Section 64 should be changed to define a "substance for control" as a substance that is entering or may enter the environment and a quantity or concentration or under conditions that may constitute a hazard to human life or health. To date, many substances on the PSL that are recognized by international bodies as toxic have been assessed by the government as non-toxic using the definition in CEPA 1999.

Many of the problems associated with CEPA 1999 are the result of the failure to fully implement the Act.

There is concern with the phrase "competitive economy" in the CEPA 1999 Scoping Paper. CEPA needs to maintain its respect for sustainable development, but it's emphasis needs to shift from "primarily about promoting sustainable development" to "primarily focusing on protecting and promoting the health of the public and the environment." The first priority goal of CEPA should be the protection of human health and the environment and secondarily the promotion of a competitive economy.

CEPA is extremely difficult to understand; it requires clearer language.

There are numerous problems with jurisdictional conflicts and confusion between CEPA and other legislation.

The Act should have the authority to require all government procurements to consider environmental factors.

The goal statement for this CEPA review should be as follows: to strengthen the well-being of Canadians, the health of our planet, and our long-term competitiveness.

Sufficient human and financial resources must be allocated to effectively implement CEPA 1999. The government has diverted its attention to harmonization agreements with provinces and territories and the promotion of volunteerism, as opposed to regulatory environmental protection measures. More detailed performance based reporting requirements and improved timelines for CEPA processes should be initiated. The federal "safety net" should be defined and should require the best available processes, practices and technologies for the protection of the environment and human health.

The Act needs to place much greater emphasis on action as opposed to study and consultation, particularly on toxic substances. The process of toxicity assessment must be accelerated. CEPA needs to take a stronger and more integrative approach to information gathering and dissemination. Increased reliance should not be placed on other government departments and other levels of government for the implementation of risk management measures under CEPA 1999.

Concern was expressed with respect to the long-term environmental impacts of mining high-grade uranium.

The government should apply the Precautionary Principle, along with the Polluter Pays Principle to large hog farm operations.

Preparing risk assessment and management approaches under CEPA 1999 should include sector-based evaluations and should include options for site-specific evaluations.

Nanotechnology should be regulated under CEPA 1999.

There is a need to ensure that the information gathering powers in CEPA 1999 include expanded NPRI inventories that include greenhouse gas emissions. Whistleblower provisions need to be improved. Research and reporting requirements for groups of substances sharing similar attributes (i.e. chemical families.) need to be expanded. CEPA needs a mechanism to fast track the assessments and listing of substances of concern identified by international treaties to which Canada is signatory (e.g., POPs). There needs to be a fundamental shift in the burden of proof from government to industry in demonstrating that substances are safe.

Return to Table of Contents

Date modified: