Canadian Environmental Protection Act (CEPA)

The Canadian Environmental Protection Act (CEPA) is "an Act respecting the protection of the environment and human life and health." When CEPA was created in 1988, the government brought together, in a comprehensive piece of legislation, environmental provisions of several other statutes administered by Environment Canada (EC). Those provisions include those dealing with toxic substances, nutrients, ocean dumping, environmental research, guidelines and codes of practice as well as agreements with provinces and territories. Other Acts which, with CEPA, protect the Canadian environment include those preserving our heritage, parks, wildlife, aquatic life, natural resources and threatened regions.

CEPA's comprehensive mandate covers toxic substances throughout the ecosystem and may control any stage of a product's life cycle from development and manufacture to transportation and disposal. Its primary focus is prevention - averting environmental problems before they occur. Preventive measures include strong regulations and enforcement mechanisms; non-regulatory approaches, such as environmental guidelines, codes of practice and incentives with industry; as well as the development and transfer of pollution measurement and control technologies.

Through CEPA, the federal government recognizes and encourages the shared stewardship of the environment with business, consumers and other levels of government, both nationally and internationally. Environment Canada and Health Canada develop CEPA regulations and guidelines, and Environment Canada administers the Act on behalf of the federal government.

Section 139 of CEPA calls for a parliamentary review of the act within five years of the enactment of the legislation. In June 1993, a motion to refer CEPA to committee for review was brought before the House of Commons. In light of the upcoming federal election, the Standing Committee on Environment deferred the review until after the election. The final motion referring CEPA to the Standing Committee on Environment and Sustainable Development was adopted by the House of Commons on June 10, 1994.

Environment Canada established the CEPA Office to co-ordinate the many activities necessary for a thorough review of the Act. The CEPA Office is to:

• Assist the Standing Committee on Environment and Sustainable Development to conduct its review of CEPA for the Parliament of Canada;
• Maintain close liaison and ongoing communications with other government departments; and
• Ensure that interested Canadians and clients are kept fully informed of developments under the Parliamentary Review.

In anticipation of the Committee's needs, Environment Canada and Health Canada prepared an Issues overview paper outlining those issues which the Committee might wish to investigate during its review of CEPA. The Issues overview does not make recommendations - it is what it purports to be - an outline of those issues which are now topical in the environmental protection field. The Issues overview in no way limits the authority or the independence of the Committee to determine the scope of the Review.

The Issues overview paper was tabled in the House of Commons on June 10, 1995.

Detailed issue elaboration papers exploring a number of issues which the Committee might wish to investigate in detail were also prepared. The topics are:

• Sustainable Development in Canada
• Biodiversity
• Ecosystem Approach
• Coastal Zone Management in Canada
• Federal House in Order
• Environmental Protection on Indian Lands
• Pollution Prevention
• Economic Instruments
• Community Right to Know
• Public Participation for Environmental Protection
• Environmental Emergencies
• Negotiated Settlements: An Enforcement Option
• Administrative Monetary Penalties - Their Potential Use in CEPA
• Inspectors' Powers and Provisions Governing Official Analysts in CEPA
• Guidance Document on the Options Evaluation Process
• Federal Intergovernmental Co-operation on Environmental Management: A Comparison of Developments in Australia and Canada
• Precautionary Principle
• The Globalization of Environmental Protection and National Accountability

These issues elaboration papers are neutral and are meant to serve as reference materials for the Committee's use.

In order to assist the Standing Committee it its review of CEPA, Environment Canada and Health Canada commissioned, in 1993, an independent evaluation of CEPA. The evaluation contains 58 recommendations on improving the administration and effectiveness of CEPA. The recommendations fall into two categories: those which are administrative and can be acted on at the bureaucratic level and those which would require amendments to CEPA. The Report concluded that CEPA's implementation had been hampered by:

• the fact that CEPA does not cover all toxic issues under federal jurisdiction, but exists within a patchwork of regulations and enforcement schemes;
• the failure of the Act to separate effectively risk assessment from risk management;
• the inherent limitations of the substance-by-substance approach;
• the overly strict criteria for equivalency agreements;
• the absence of an administrative penalty scheme; and
• inadequate powers under Part IV to regulate federal activities.

The evaluation report also concluded that CEPA needs to include seven key elements:

• a statement of ecosystem quality and human health objectives;
• moral leadership by, among other things, setting a high standard in federal government activities;
• the ability to meet international obligations with respect to toxic substances;
• excellent science;
• mechanisms and processes that permit the efficient and effective identification, assessment and control of high-priority toxic substances;
• a consistent, clear, and non-duplicative control regime; and
• fair and consistent enforcement.

The Committee has eleven members from the three major parties in the House of Commons. The Standing Committee began its Review of CEPA in June 1994. The Members of the Committee during the year were:

Chair
Charles Caccia, Chairperson, M.P., for Davenport

Vice-chairs
Karen Kraft Sloan, M.P., for York-Simcoe
Monique Guay, M.P., for Laurentides

Members
Peter Adams, M.P., for Peterborough
Paul DeVillers, M.P., for Simcoe North
John Finlay, M.P., for Oxford
Paul E. Forseth, M.P., for New Westminster-Burnaby
Bill Gilmour, M.P., for Comox-Alberni
Clifford Lincoln, M.P., for Lachine-Lac-Saint-Louis
Pat O'Brien, M.P., for London-Middlesex
Benoît Sauvageau, M.P., for Terrebonne

Associate members
Jim Abbott, M.P., for Kootenay East
Rex Crawford, M.P., for Kent
Stan Dromisky, M.P., for Thunder Bay-Atikokan
Bob Mills, M.P., for Red Deer
Len Taylor, M.P., for the Battlefords-Meadow Lake
Andrew Telegdi, M.P., for Waterloo

Clerk of the Committee
Normand Radford

Research staff of the Committee
Pascale Collas (Research Branch, Library of Parliament)
Thomas Curran (Research Branch, Library of Parliament)
Monique Hébert (Research Branch, Library of Parliament)
Margaret Smith (Research Branch, Library of Parliament)
Ruth Wherry (Seconded to the Committee by Environment Canada)
Franÿois Bregha (Resource Futures International)
John Moffet (Resource Futures International)

Other staff
Susan Waters

The Standing Committee has conducted an extensive Review of CEPA. In the process, the Committee heard from approximately 200 witnesses and analysed over 120 substantive submissions. The Committee also travelled across Canada and met with the Canadian Council of Ministers of the Environment (CCME) in Bathurst, New Brunswick on November 8, 1994.

The Standing Committee is expected to table its report on CEPA in June, 1995. Government then has 150 days to respond.

Environment Canada supports the principle that protection and conservation are shared responsibilities among all Canadians and by all jurisdictions. Environment Canada continues to reaffirm the importance of public consultation in the design of its policies and in the development of its programs and the delivery of its services. Forging partnerships is a basic way of doing business at Environment Canada.

Included in CEPA's structure are opportunities for governments and experts in relevant disciplines to consult and to coordinate their efforts. Mechanisms for this consultation and coordination include advisory panels, the Federal-Provincial Advisory Committee and its working groups and agreements with the provinces and territories.

The Ministers of the Environment and Health appoint experts from interest groups, industry and the academic community to advisory panels. One of these, the Expert Advisory Panel for Priority Substances, will advise the Ministers of Environment and Health on CEPA's second Priority Substances List (PSL II) in 1995. Panel members represent labour, health and environmental groups, academia, industry and the provincial, territorial and federal governments. The Government appointed the Advisory Panel in December 1994.

The Federal-Provincial Advisory Committee (FPAC) is comprised of representatives from Environment Canada, Health Canada and each of the provinces/territories. The Committee ensures that they work cooperatively to achieve early and effective consultation on environmental protection and toxic substances management initiatives.

During the past year, FPAC has concentrated its efforts on the Strategic Options Process (SOP) which aims to effectively respond to environmental issues within a pollution prevention context in a manner which is open, transparent and where accountability is clearly defined. In 1994/95 the SOP was used to develop responses to the substances declared toxic under CEPA through the Priority Substances Assessment Process. It may be applied to other priority areas in the years to follow.

One other important issue that FPAC has been kept abreast of throughout the year is the development of the federal Toxic Substances Management Policy which aims to ensure the protection of human health and the environment. Members participated in workshops, bilateral meetings, teleconferences and special meetings dealing/focussing on the evolution of this Policy.

FPAC dealt with a number of other issues throughout the year such as the development of the Federal Strategy for Pollution Prevention, Environmental Protection Regimes on Indian Lands, Long Range Transport of Persistent Organic Chemicals, Municipal Wastewater Effluents and CEPA Review. The Committee has also been involved with the work of the Ministers' Expert Advisory Panel on the PSL II by providing comments on the screening criteria and by nominating substances. In addition, the Committee was consulted on a regular basis on Environment Canada's regulatory initiatives relating to CEPA.

In the past the working group on air quality objectives and guidelines has prepared recommendations ready for tabling air quality objectives for hydrogen fluoride and carbon monoxide based on a review of the current science. Objectives currently under review are fine particulate matter, total reduced sulphur, and nitrogen dioxide. The working group has compiled the scientific review document for particulate matter, as the first step towards recommending objectives.

In association with the NO_x / VOC Management Plan Science Program, the working group is also developing recommendations for revising ground-level ozone objectives for the protection of health and vegetation.

It has become evident to the working group members that the current three-tiered framework for air quality objectives should be re-visited. It is the intent of the Working Group to recommend a framework which is more scientifically justifiable. In parallel with this effort, an air quality objectives derivation protocol is being developed. This will provide consistency with guideline development in other media. It will also formalize the process by which the scientific information is reviewed and recommendations for air quality objectives are developed. A first draft of the protocol has been prepared.

Subsection 34 (6) and section 98 of CEPA provide for the federal government to enter into equivalency and administrative agreements, respectively, with the provinces and territories as part of CEPA's legislative framework. In the mid-eighties, when CEPA was being developed, the inclusion of such provisions in CEPA was as seen as an effective means to achieving greater efficiency in the administration of CEPA while minimizing duplicative activities.

Agreements are recognized as invaluable cooperative tools for federal and provincial governments to attain common environmental protection goals on mutually acceptable terms in an administratively efficient manner. For instance, they reduce overlapping and duplicative activities of the federal and provincial governments by providing a single government contact point to industrial sectors for reporting purposes. This administrative efficiency is achieved while ensuring environmental standards remain consistent.

The 1994-95 fiscal year was a very busy year for Environment Canada with respect to the conclusion and signing of federal-provincial agreements. On behalf of the federal government, Environment Canada made significant progress in concluding numerous bilateral agreements both pursuant to CEPA and pursuant to the Department of Environment Act and the Fisheries Act (jointly with the Minister of Fisheries and Oceans).

Equivalency agreements

Equivalency agreements are an effective means to eliminating overlap and duplication in the administration of federal and provincial regulations. As such, they are partnerships that suspend all application of a federal CEPA regulation in a province or territory by recognizing an equivalent provincial or territorial regulation. The provincial or territorial regulations need not be worded exactly the same as the federal regulations to be considered equivalent, but they must achieve an equal or equivalent effect. Under an equivalency agreement, CEPA still applies to Her Majesty in Right of Canada (e.g. federal lands and facilities) and the federal government retains its responsibility for reporting annually to Parliament on the administration of equivalency agreements.

Agreement on the equivalency of federal and Alberta Regulations on the Control of Toxic Substances in Alberta

This is the first CEPA equivalency agreement to be concluded; it was signed on June 1, 1994. Under this agreement, the Secondary Lead Smelter Release Regulations, the Vinyl Chloride Regulations, the Pulp and Paper Mill Dioxins and Furans Regulations, and the use portion of the Pulp and Paper Mill Defoamer and Wood Chips Regulations pursuant to CEPA no longer apply in Alberta. As alluded to above, these regulations will continue to apply to Her Majesty in Right of Canada in the province of Alberta.

This agreement allows for a continued high level of environmental protection while achieving efficiencies in the government-industry relationship by providing a single government point of contact for industry. It will remain in effect until terminated by one of the Parties.

Administrative agreements

Administrative agreements are "work-sharing" partnerships that allow federal and provincial/territorial governments to share the work of administering regulations. They can cover such activities as inspection, enforcement, monitoring and reporting, but do not release any of the parties from their respective responsibilities. Under an administrative agreement, the federal government remains accountable to the Canadian people through Parliament and therefore must report annually to Parliament on the agreement.

Over the past year, Minister Copps signed the following administrative agreements with provinces on behalf of the Government of Canada:

Canada-Quebec agreement respecting pulp and paper

On May 6, 1994, the above-noted administrative agreement, designed to harmonize the administration of federal and provincial environmental regulations governing pulp and paper mills in Quebec, was signed. The agreement makes the Quebec government the sole governmental representative in dealings with Quebec pulp and paper mills. It covers regulations for the pulp and paper sector under CEPA, the Fisheries Act and Quebec's Loi sur la qualité de l'environnement. The agreement does not alter either federal or provincial regulations. It stipulates that the Quebec government, when enforcing its pulp and paper regulations, will provide the federal government with information so that the federal government can ensure compliance with federal regulations. Federal regulations will continue to apply to all pulp and paper mills throughout Quebec, and as with all administrative agreements, both governments retain power to act unilaterally in enforcing their respective regulations. This agreement will be in effect until January 1, 1996.

Canada-Saskatchewan administrative agreement for the Canadian Environmental Protection Act

This agreement was signed and came into force on September 15, 1994. It establishes a work-sharing arrangement for the cooperative administration of federal and provincial environmental legislation and focuses on such areas as releases, compliance promotion and compliance verification, investigations and enforcement. It will remain in effect until one of the Parties wishes to terminate it.

Agreement on the administration of federal and provincial legislation for the control of effluents from pulp and paper mills in the Province of British Columbia

Signed in Vancouver on September 19, 1994 and in force until March 31, 1996, this administrative agreement covers pulp and paper industry sector regulations under CEPA and the Fisheries Act, as well as complementary provincial legislation. Under this agreement, the province of British Columbia will be solely responsible for conveying monitoring and information requirements to the pulp and paper industry, conducting the jointly developed inspection program (with federal participation in selected joint inspections), and generally leading in investigations of suspected violations. The federal and provincial governments will work together to develop a data reporting system with full and prompt access for both parties.

Implementation of agreements

As the above-noted agreements were signed in 1994-95, Environment Canada worked with the respective provincial governments this past year in putting the structures and processes in place to implement them. Activities, therefore, generally concentrated on establishing management committees, designing and delivering training programs for provincial employees to obtain designation as CEPA inspectors, taking the necessary steps to put into place data management systems, establishing processes for "single window" reporting to government, and establishing priorities for compliance verification and promotion.

Further detail on individual agreements is contained in the section "CEPA Across Canada" which describes activities undertaken in Environment Canada's Regional Offices.

Future agreements

Discussions continue with several provinces and territories on the development of several additional administrative and equivalency agreements pursuant to CEPA.