ARCHIVED - Summary Report on the Public Workshops Assisting Environment Canada and Health Canada in Preparing for the Parliamentary Review of the Canadian Environmental Protection Act, 1999

4. Summary of What Was Heard

4.1 Overarching Messages

CEPA 1999 is fundamentally sound but needs better implementation: Many participants across sectors and across the country generally felt that CEPA 1999 is fundamentally sound and does not require significant amendment to ensure effective and ongoing protection of human health and the environment. However, many participants were also generally of the view that much more needs to be done to effectively implement the Act to ensure that it delivers on its full potential, including taking faster action to reduce risks.

Many participants acknowledged the numerous, complex and fundamental structural changes from the original 1988 CEPA that were put in place when CEPA 1999 came into force in 2000. These participants generally recognized that five years is a relatively short time to implement, and to see the results from all of the major requirements of the new legislation. Therefore, these participants urged the departments to improve implementation opportunities, but not to propose to Parliament significant legislative amendments to the current structure of the Act. Many felt that the basic framework of the Act should not undergo review every five years (suggested Review period timeframes ranged from seven to 10 years). Most importantly, participants generally insisted that the preparations for the Parliamentary Review, and the Review itself, should not divert human and financial resources from implementation initiatives. Indeed, several participants expressly stated they were concerned that the current resources needed to deliver CEPA 1999 are already inadequate.

By the end of the public workshop process, it was apparent that many participants had identified four discreet but interrelated expectations or objectives for CEPA 1999 and for the federal government's implementation of CEPA 1999 that cut across all of the themes identified below. Any initiatives for improving the implementation of, or the amendment of CEPA1999, must take these crosscutting objectives into account, as follows:

National Leadership and Coherence: the federal government should recognize and use CEPA 1999 as the central Act for preventing pollution, setting national standards and establishing a coherent set of environmental laws and policies in Canada. In particular, CEPA 1999 should champion cooperation and collaboration both within the federal government and among the various jurisdictions involved in protecting the environment and human health, (e.g., federal, provincial, territorial, municipal and aboriginal governments and regulatory bodies). With respect to promoting coherence among federal laws and policies, participants routinely flagged seeming discrepancies, potential gaps, potential duplication, or inconsistencies among a variety of federal laws including the Fisheries Act, the Pest Control Products Act, the Canadian Environmental Assessment Act, the Transportation of Dangerous Goods Act, the Motor Vehicle Safety Act, the proposed Canada Health Protection Act, various Territorial laws and CEPA 1999.

Smart Regulation: CEPA 1999 itself should provide for an optimum mix of incentives and disincentives and ensure that risk managers have easy access to a comprehensive toolbox to ensure the most effective management strategy for substances to be managed under the Act. CEPA should also enable the use of the most effective tool by the jurisdiction that is in the best position to take action (including other federal departments). CEPA should ensure that the range of available risk management tools is sophisticated enough to effectively and efficiently address specific ecological and regional circumstances. In this regard, virtually all participants at the Yellowknife session emphasized the importance of ensuring that risk management strategies specifically recognize and use appropriate tools to address northern realities, needs and expectations.

Some participants were hesitant to have substances, which were assessed under CEPA, managed by another department or jurisdiction. However, participants did stress that where federal risk managers decide that an issue is best managed outside of CEPA, the Act must still ensure that such decisions are completely transparent. As importantly, the Ministers of the Environment and Health must remain fully accountable for ensuring that the toxic substances in question are managed effectively, must track progress, and must be able to act quickly and decisively when other jurisdictions are not managing the risk effectively. In this context there were concerns raised regarding progress made under the Canadian Council of Ministers of the Environment (CCME) Harmonization Accord and development and implementation of Canada-wide Standards.

International Collaboration: Many participants recognized the international dimensions of environmental and human health protection, especially as it relates to the assessment and management of existing and new substances. In this regard, participants were generally of the view that international collaboration is useful and necessary. Some of these participants generally felt that CEPA 1999 should take a leadership role in promoting an international agenda (as opposed to having other jurisdictions or international agencies set the agenda for Canada). They also felt that CEPA 1999 is an important tool for facilitating this cooperation and for implementing international environmental protection agreements. Participants generally recognized the need for cooperation with other national and international jurisdictions as well as domestic jurisdictions to promote effective international action. Participants also flagged the need to ensure that all the implications of international cooperation are fully understood before committing to a particular course of action.

Sound Science and Informed Decision-Making: CEPA 1999 should provide high quality science and information (including information derived from traditional aboriginal knowledge, traditional ecological knowledge and community- based knowledge) to support timely, preventative, precautionary and transparent decisions by government. CEPA should also provide user-friendly and free access to high-quality, plain language information to support informed choices by all Canadians.

4.2 What was Heard on Knowledge for Protecting Human Health and the Environment

Many participants across sectors felt that the departments could do more to generate knowledge for protecting health and the environment in ways that could take advantage of other national and international efforts and that support current and emerging risk management priorities. Participants who were aware of the categorization and screening level assessment processes in Part 5 of CEPA 1999 recognized that Canada is a world leader in dealing with the legacy of existing substances that were brought into commerce, largely from the 1940s to the mid 1990s, without thorough assessment and management of the risks. These participants suggested that the departments should maximize collaboration with Canadian partners and the international community in order to acquire and access the data necessary to assess and manage existing substances systematically and efficiently. Collaboration can include sharing workloads and exchanging findings in order to avoid duplication of effort, and to reduce human and financial resource burdens.

There was considerable discussion on the relative roles and interrelationships within CEPA 1999 to promote the "three pillars" of healthy environment, healthy Canadians and a competitive economy. Some participants felt that the CEPA mandate should remain focused on health and the environment and not on a competitive economy. Some other participants felt that CEPA 1999 should promote all three pillars, and in particular that health and environmental protection in Canada should line up with the laws of Canada's major trading partners to ensure there is a level playing/trading field. It was noted that strong environmental laws can provide competitive advantages to companies with environmentally responsible products. It was also noted that health, the environment and the economy are not in competition with each other and that CEPA 1999 should be reviewed from this integrated synergistic perspective.

Some participants argued that CEPA 1999 must shift focus from "sustainable development" to "sustainable consumption", that its overriding principle should be "do no harm", and that it not only protect but also promote human and environmental health.

Concerns were raised that the Act does not have clear steps and timelines for the screening assessment process which follows categorization. Various participants suggested that the departments should work more closely together to establish priorities for screening assessments and for grouping substances to enable:

• consideration of the risks of alternatives/substitutes;
• development of multi-pollutant, sectoral risk management approaches; and
• consideration of the risks of cumulative effects.

Many participants felt that proposed changes to chemicals management in the European Union should be discussed during this Review. In particular, consideration should be given to the registration and authorization of substances as is contemplated in the European Union-REACH (Registration, Evaluation, and Authorization of Chemicals) proposal.

Some participants suggested that CEPA 1999 be amended to explicitly mandate the Minister of Health to conduct biomonitoring, in order to provide information about which environmental contaminants are present in the human body, and at what levels. Some felt that Health Canada should strengthen relationships with institutions and public health groups that do research on human illness. It was suggested that the total burden of chemicals in humans must be better understood and considered when managing substances.

Some participants, particularly from the public health and environmental sectors stressed that CEPA must explicitly require that assessments take into account susceptible populations, including infants and children, pregnant women, people with environmental sensitivities, and individuals with allergies and respiratory ailments.

It was suggested that the CEPA National Advisory Committee (NAC) process be strengthened, used to its full potential and become more transparent. With the increased role of municipalities in dealing with air and water quality, it was felt by some that they should be provided with a seat at the CEPA NAC. Also, the current process for identifying participation from aboriginal governments on the NAC should be made more representative of aboriginal interests.

Some participants suggested that the administrative and equivalency agreements in CEPA 1999 need to be clarified and used far more frequently in appropriate circumstances.

Some participants suggested that the roles of traditional aboriginal knowledge, traditional ecological knowledge in and community-based research and knowledge be clarified in CEPA 1999. In particular, implementation procedures need to be developed to clarify how and where these types of knowledge will be used.

There were varying perspectives as to whether government or industry should have the onus for either proving a substance is toxic or proving it is safe, respectively. Some felt that there should be some type of system among various industries for cost sharing the generation of data for existing substances.

Concern was raised by some participants that substances which were determined to be toxic in other countries have not been found toxic in Canada under CEPA 1999.

4.3 What was Heard on Tools for Taking Action

Various participants, particularly within the environmental and public health sectors, stressed the fundamental importance of the precautionary principle and pollution prevention as the foundation for sustained environmental and human health protection within CEPA 1999. These participants generally felt that much more needed to be done to operationalize both pollution prevention and the precautionary principle in CEPA 1999. It was suggested that there be more public disclosure on the contents of pollution prevention plans.

Some participants, primarily from the industry sector, felt that the term "toxic" is misleading, particularly where an assessment determines that a substance has low hazard potential but high environmental exposure. Some participants, primarily from within the environmental and public health sectors, felt that a substance with a low hazard characterization but with high exposure can still cause significant damage to the environment and requires appropriate action. A few participants noted that some substances that are assessed as having high hazard potential but low exposure may not meet the criteria for a toxic substance under CEPA 1999. Many participants did agree that listed substances need more context to explain why they have been listed and require much better risk communication.

There was some support for enabling substances to be managed outside of CEPA 1999 where a non-CEPA measure would be more timely and effective, but only if: a transparent process is established for identifying the selected risk management plan; at the beginning of the process, the Ministers establish clear targets and spell out consequences for failure to deliver; the Ministers remain accountable; transparent and effective tracking systems are in place and the Ministers have clear and decisive means for responding quickly when the other measures do not meet predetermined targets; and, it is made clear when CEPA 1999 and non-CEPA tools can be used.

Many participants stressed that, when developing and implementing tools for taking action, the departments need to ensure and facilitate effective and timely dialogue with aboriginal governments and municipal governments.

Some participants noted that some of the regulatory authorities in the current Act are too blunt to provide targeted backstops and do not encourage effective incentives for "beyond compliance" performance by industry. It was noted that backstop regulations should not disadvantage industry leaders that comply with the Act, but rather should target the "bad actors" that are not in compliance.

Some participants noted that CEPA 1999 should expand and optimize the use of economic instruments by providing for more incentives and by enabling the government to make better use of the polluter pays principle.

Some participants, primarily from the environmental and public health sectors, felt that CEPA 1999 needs clearer and more comprehensive authority to manage risks of substances in products over the full lifecycle of the product. It was noted there was a particular need to strengthen the regulation of new substances found in consumer products. It was also suggested that more information on substances in products, including much better labeling of products to disclose risks, is needed so that consumers can make informed choices (the Product Registry in Denmark was raised as an example). It was recommended that the federal government take a leadership role in providing safe consumer products, particularly those used by children. Some other participants cautioned that regulating all substances might pose trade barrier issues and should be restricted to products where specific adverse effects are observed.

Many participants, particularly from the industry sector and from the natural resource user sector (e.g., farming interests) stressed the need to consider competitiveness issues when taking action, particularly as it relates to trade across the Canada-US border.

Some participants felt that there is no federal vision for a comprehensive chemical policy. It was suggested that: Canada should examine the proposed European Union REACH timelines for dealing with substances to assist in measuring progress. Various participants suggested that more work is needed for: finding safer alternatives for some chemicals; encouraging the application of the substitution principle; and, promoting green chemistry.

Some participants criticized CEPA 1999 as being far too cumbersome and slow in protecting the health and environment of Canadians (e.g., on polybrominated flame retardants some of which have already been banned in the European Union).

Some participants argued that the virtual elimination provisions are ineffective and should be amended to provide a simpler process and timelines for the virtual elimination of certain substances.

4.4 What was Heard on Fair and Efficient Compliance Promotion and Enforcement

Generally, participants were comfortable with the enforcement powers in CEPA 1999. Most participants who addressed this topic agreed that the enforcement provisions are comprehensive and flexible, allowing for an appropriate range of enforcement actions and penalties to suit specific situations. Some participants expressed the view that these powers must be used much more frequently and consistently, and that enforcement statistics must be made readily available to the general public. It was noted that enforcement was needed to level the playing field between those that do not comply with the law and those who do comply. It was felt by some that those who do not comply undermine the rest of the sector.

Some participants suggested that the approach to enforcement in CEPA 1999 is not effective as CEPA 1999 is an enabling law that provides the Ministers with too much discretion. There should be more prohibition provisions built into CEPA 1999 similar to those in the Fisheries Act, including a general prohibition on the release of toxic substances.

Many participants agreed that efforts to promote compliance with CEPA 1999 (e.g. the maintenance of the Environment Canada Enforcement website, the publication of compliance and enforcement policy guidelines, direct communications and engagement with the regulated communities and members of the public) must be improved. In particular, participants stressed the need for:

• more outreach to affected parties/regulated communities, especially small and medium enterprises who often do not have the resources needed to find and understand the law;
• more outreach to the public so that they better understand the law, and in particular, the legal rights and responsibilities of neighboring facilities;
• the use of plain language in all compliance promotion initiatives;
• much more clarity on how CEPA 1999 interacts/intersects with other federal laws and with provincial, territorial and municipal laws; and
• better, publicly accessible databases on compliance rates and performance measures.

4.5 What was Heard on Information for Canadians

Participants generally noted that CEPA 1999 provides adequate provisions for enabling the departments to generate and provide public access to information. However, there was also general agreement that the departments could do considerably more to improve access to easily understandable, reliable and relevant information. In particular, theCEPAEnvironmental Registry, the National Pollutant Release Inventory (NPRI) and the numerous scientific and policy papers prepared by Environment Canada and Health Canada must be made more accessible, made available free of charge, written in plain language, and more user-friendly (especially the CEPA 1999 Registry). It was suggested that the departments implement an e-mail subscribers list that notifies people when specific changes have been made on the CEPA 1999 Registry.

There was almost universal agreement by participants on the value of, and the need to reinstate comprehensive State of the Environment Reporting by Environment Canada, to add State of Health Reporting by Health Canada, and to ensure that these two important initiatives are closely linked. Participants noted that full, fair and timely access to information requires comprehensive, regular, understandable (plain language) and credible signals of the impacts from polluting activities on human health and environment. State of the Environment and Health Reports are essential to help track the results of risk management programs, to help identify changes that warn of potential new threats, and to help shape environmental and health protection policies and practices.

While many participants generally agreed that the provisions for the NPRI are adequate, there was almost universal agreement on the significant administrative complexities of the NPRI reporting requirements and on the need to simplify these requirements for reporters. Some participants noted that independent audits should be conducted to ensure users of the NPRI, including the general public, that the NPRI data is reliable/accurate. Users also require more context to help interpret the significance of the data. Participants also tended to agree that the departments should use NPRI data far more transparently and effectively to help assess the state of the environment over time and to help shape policies accordingly. Some suggested that the data submitted should be verified by a third party to ensure quality control. Some participants expressed concern that Environment Canada takes too long to publish NPRI reports. It was also suggested that: agricultural sources be required to report under the NPRI; all substances listed on Schedule 1 should be automatically reported on the NPRI by all sectors releasing those substances; and, all sectors releasing NPRI substances should be required to report those releases under the NPRI.

Some participants suggested that Act should require industry to publish annual reports on environmental performance to encourage information sharing and increase peer pressure for improvement.

Some participants suggested that the "whistleblower" and the "citizens' civil suits" provisions in CEPA 1999 are not being used to full potential because the public is not aware of them. These provisions need to be better communicated to ensure that members of the public are aware of these rights and that they can be used effectively in appropriate circumstances. A few participants suggested that the "citizens' civil suits" provisions might be too complicated to be used easily by the general public.

4.6 What was Heard on "Specific" Issues

The following is a list of non-prioritized specific issues/views raised by one or more participants that do not necessarily fall within the ambit of the themes discussed above.

• The scope of CEPA 1999 should be expanded to include the regulation of pesticides.
• The title "Canadian Environmental Protection Act" should be clarified to reflect its true scope and purpose. EitherCEPA 1999 must expand its scope to truly reflect the full protection of the Canadian environment (e.g., include natural resources, land use planning, endangered species, etc), or the title should be changed to reflect that the focus of the Act is primarily concerned with the assessment and management of substances. One individual suggested that the word "Environment" be replaced with "Ecological Integrity", as follows: the "Canadian Environmental Integrity Protection Act".
• Many participants were of the view that the five year review period for CEPA 1999 is too short. Participants generally recognized the intensive work required to conduct a review for all parties involved, appreciated that it can be difficult to evaluate implementation initiatives across a five year timeline, and recognized that in any event the government could petition for amendments to legislation prior to the completion of a review period. Proposals for extending the review period ranged from seven to 10 years. Some thought that CEPA 1999 should not be reviewed in isolation from other federal acts.
• Drinking water source protection, water quality in the Great Lakes and lack of regulations to reduce pollution from emissions and wastes was raised by numerous people.
• It was suggested that CEPA 1999 be used to:
  • reduce the environmental and human health impacts from intensive livestock operations;
  • shut down irresponsible operators that contaminate the land; and
  • deal with chemical wastes that have been buried in permafrost that is now melting.
• It was suggested that the Review of CEPA 1999 adopt the principles set forth in the Earth Charter.
• Reference was made to a United Kingdom Royal Commission recommendation that where synthetic chemicals are found in the tissues of humans and wildlife, regulatory steps should be taken to remove them from the market immediately.
• It was suggested that the "ecological footprint" analysis was a very good tool for measuring the progress of CEPA 1999.
• Environmental emergency plans need to be better implemented.
• The New Substances Notification Program should take the European Union chemical inventory into consideration and not just the US inventory.
• Care must be taken to ensure that the French and English versions of the Act have the same meaning. It was pointed out for example that the French statement of the Precautionary Principle calls for "effective" measures while the English version calls for "cost-effective measures".
• It was suggested that the departments need to more carefully monitor and evaluate voluntary initiatives.