3. Act-wide findings

This section of the report builds on the Parts-based analysis presented in Section 2 and summarizes Act-wide findings according to the established evaluation criteria (see Appendix VI).

This subsection presents evaluation findings according to the following progress-related evaluation criteria:

• Are Ministerial obligations being satisfied?
• What governance and administration structures have been put in place to implement the Act?
• What has been done (2000-2004)?
• Have the identified priority actions for strengthening the effectiveness and efficiency of the department's implementation of CEPA 1999 been initiated?
• What improvements in implementation have been made since 1999, and with what results?
• What progress has been made in harmonizing activities/processes with provinces and territories?
• What progress has been made in coordinating activities/processes with those of other Organisation for Economic Co-operation and Development jurisdictions?
• What major issues / challenges / contextual factors have been identified or addressed?

The evaluation found that all Ministerial obligations that have been triggered to date have been satisfied.

CEPA 1999is described as being an "enabling" Act, in the sense that it establishes authorizations for a wide range of actions in support of pollution prevention. However, it does impose a significant number of new obligations on Environment Canada, while maintaining many obligations that previously existed under CEPA 1988. The findings of this evaluation indicate that the Department is well aware of all formal Ministerial obligations under the Act and has established new mechanisms and modified existing ones to ensure that all obligations will continue to be met.

Although the Act does not specify a time frame, the Minister has not yet published a Virtual Elimination List, as required under Section 65(2). A Virtual Elimination List has been formally proposed, via a Canada Gazette, Part I, Notice⁹⁹ on August 16, 2003. Final establishment of a Virtual Elimination List had been delayed by industry challenges, which have now been resolved. Environment Canada expects to establish the Virtual Elimination List in June 2005.

The Department has established both mandated and non-mandated governance processes to assist in implementing CEPA 1999. These processes and activities involve elements of coordination among federal departments, with other governments and with other jurisdictions.

To ensure the most effective management and delivery of CEPA 1999, Environment Canada undertook an Operational Review of related programs in 2001-02. The objectives of the review were to:

• improve understanding of the Act's obligations and how program elements were being delivered;
• identify major risks that might have an impact on the delivery of results and strategies for managing the risks;
• make recommendations for priority actions in the months and years following the exercise; and
• identify management assumptions and expected workload over a 10-year period and the required resources for delivering results.

The completion of the Operational Review resulted in the the Government of Canada granting the Department with phased-in, increased funding which leads to approximately $76.3 million in 2007/08 of additional permanent funding on an annual basis for CEPA 1999 implementation

Out of the $90 million allocated to implement the Border Air Quality Strategy under the Canada - United States Air Quality Agreement, the department received $59.9 over a four year period. This initiative was designed to engage the administration of the United States in transboundary air quality cooperation while at the same time supporting Canada's domestic Clean Air Agenda.

The Department's major accomplishments over the period 2000-2004 are discussed in detail in Section 2. An overview of the major accomplishments achieved is given below.

A significant volume of CEPA 1999-related outputs was produced during the evaluation period. Of particular note, the evaluation found that:

• The Department is on track and well positioned to satisfy the requirement to categorize all of the more than 23 000 substances on the Domestic Substances List prior to the September 2006 deadline imposed by the Act; preliminary categorization decisions have already been published for about 17 000 substances, and a further 1000 substances have been identified for removal from the Domestic Substances List, following investigations that concluded that they should not have been placed on the list in the first place.
• The Department has met all legislated timeline requirements associated with the proposal and finalizing of risk management measures and tools in response to all substances proposed for addition to the CEPA 1999 Schedule 1 List of Toxic Substances over the evaluation period.

Other notable CEPA-related outputs produced over the evaluation period include the following:

• added 22 substances to the CEPA 1999 Schedule 1 List of Toxic Substances;
• published 13 new and amended regulations;
• implemented environmental emergency planning regulations covering 174 substances, including 16 CEPA 1999 Schedule 1 substances;
• published five final and one proposed pollution prevention planning notices, covering 8 of 22 substances added to CEPA 1999 Schedule1 since 2000 and 9 additional substances;
• published four codes of practice;
• published five CEPA 1999 guidelines, plus several guidelines through the Canadian Council of Ministers of the Environment;
• developed and implemented a 10-year Clean Air Agenda and an accompanying 10- year Federal Agenda on Cleaner Vehicles, Engines and Fuels;
• processed more than 3000 new substance notifications;
• completed all but two of the outstanding assessments of substances on the Priority Substances Lists;
• reduced overlap and duplication by listing other acts under Schedule 2 and Schedule 4 and developing memoranda of understanding with respect to CEPA 1999's provisions for new substance notifications, including some aspects of animate products of biotechnology;
• made significant improvements to implementation of the New Substances Program in response to consensus-based recommendations of multistakeholder consultations;
• addressed each of the 24 recommendations made by the Parliamentary Standing Committee's 1998 review of enforcement;
• expanded and made significant upgrades to the National Air Pollution Surveillance Network and the Canadian Air and Precipitation Monitoring Network; and
• increased the scope of the National Pollution Release Inventory, which now includes reporting on criteria air contaminant releases from Canadian industrial facilities.

The Department also strengthened industry and interjurisdictional cooperation on environmental protection matters by means of initiatives outside of CEPA 1999. These initiatives included:

• developing four environmental performance agreements;
• working with the provinces and territories to develop Canada-wide Standards, under the Canadian Council of Ministers of the Environment process, for particulate matter and ozone, mercury, dioxins and furans, benzene and petroleum in soil;
• initiating work with the provinces and territories to standardize the management of municipal wastewater effluents across Canada;
• working with the forest products industry on a "smart regulations" initiative for that sector, including the announcement of an agreement to develop a 10-year agenda on air quality issues; and
• working with industry and the provinces/territories under the auspices of the Canadian Council of Ministers of the Environment to develop a framework for managing refinery air emissions across Canada.

The Department's initiation of identified priority actions to improve the efficiency and effectiveness of delivery of CEPA 1999 is discussed in detail throughout Section 2. The majority of the identified priority actions have been initiated. However, most programs under CEPA 1999 have not adopted the identified outcomes and performance indicators as the formal basis for their strategic planning and reporting processes. Noteworthy priority actions that have not been initiated include the following:

• Actions with respect to Part 9 (the federal house provisions) have not been initiated.
• A monitoring and reporting focal point has only recently been established and has yet to execute its intended functions.

The Department continues to promote harmonization of environmental protection standards across Canadian jurisdictions through both the Canadian Council of Ministers of the Environment process and program-level initiatives.

The Minister of the Environment invoked the authorities under Part 9 of the Act to enter into several agreements respecting Canada-wide Standards through the Canadian Council of Ministers of the Environment process, including standards relating to:

• particulate matter and ozone;
• dioxins and furans;
• mercury;
• benzene; and
• petroleum hydrocarbons in soil.

Further, in June 2004, the Minister of the Environment, along with the other members of the Canadian Council of Ministers of the Environment, formally adopted a work plan to promote environmentally sound management of hazardous waste.

Environment Canada also enhanced harmonization through program-level initiatives, such as:

• harmonization of fuel, vehicle and equipment standards across Canadian jurisdictions;
• harmonization of spill reporting requirements through the environmental emergency planning regulations; and
• development of a "single window" approach and harmonization of most reporting requirements between the National Pollutant Release Inventory and the Ontario "OnAir" (Ontario Regulation 127/01) initiative.

Despite the progress described above, representatives of provincial governments interviewed as part of this evaluation expressed the view that Environment Canada is increasingly duplicating provincial control measures.

International cooperation continues to be an important strategic direction within Environment Canada. The Department's international activities can be grouped under the broad areas of science, international agreements and standards and international capacity building. Many of the Department's international activities also focus on ensuring better alignment between trade and economic issues and environmental standards.

During the evaluation period, Environment Canada's major CEPA 1999-related international activities included:

• significant ongoing involvement in Organisation for Economic Co-operation and Development and United Nations Environment Programme scientific processes;
• significant and ongoing involvement in Organisation for Economic Co-operation and Development information-sharing initiatives to promote pollution prevention and sustainable production and consumption;
• bilateral arrangements with several countries;
• promotion of international vehicle, engine and equipment standards;
• promotion of mutual recognition for assessment decisions on existing and new substances;
• international work on the environmentally sound management of hazardous waste and hazardous recyclables; and
• international agreements and protocols concerning hazardous air pollutants, including the Stockholm Convention on Persistent Organic Pollutants.

Environment Canada also continued its traditional high level of cooperation with the United States Environmental Protection Agency. Major areas of collaboration during the evaluation period included:

• alignment of Canadian fuel, vehicle, engine and equipment standards with existing and anticipated American standards;
• increased alignment of regulations and administrative processes governing transboundary movement of hazardous waste;
• ongoing and strengthened cooperation on the Canada - United States Air Quality Agreement; and
• cooperation on scientific, technical and research activities in all areas.

Issues and challenges have been identified with respect to the Department's delivery of nearly all aspects of CEPA 1999 implementation. These are discussed in detail throughout Section 2. Noteworthy mentions include the following:

• Progress has been very limited in efforts to ensure that environmental protection standards for federal activities and lands, and Aboriginal lands (Part 9) are equivalent to the environmental protection standards that apply in the communities in which the federal government operates.
• Environment Canada's ability to act as an effective safety net for new substances could be compromised by gaps in the regulatory regimes of other federal departments and agencies for some aspects of new substances, including new animate products of biotechnology, such as:
  • aquatic organisms;
  • pharmaceuticals;
  • certain food products; and
  • transgenic animals.
  Environment Canada lacks the technical and scientific resources in these areas, but is accountable for those areas until other departments develop appropriate regulations.
• Government of Canada policies have contributed to limited development and use of economic instruments, fees and charges in support of environmental protection. These policies have limited the Department's ability to recover costs of environmental damages and the costs of implementing the Act and its provisions. Currently, less than 1% of the Department's implementation costs are being recovered.
• Systems for the provision of nationally integrated environmental information have not yet been established.

Other important cross-cutting issues and challenges include the following:

• Mechanisms are needed to assess the effectiveness of the full suite of risk management measures and tools and to allow for informed decision-making among options.
• Intelligence gathering, compliance promotion and enforcement resources are insufficient to ensure that the intended benefits of all CEPA 1999 measures will be achieved.
• The provinces and territories view interjurisdictional cooperation as being in need of attention. Both the provinces/territories and Aboriginal peoples' organizations express the view that the operations of the National Advisory Committee established under CEPA 1999 have not met their expectations.

Finally, the need to set priorities for and implement screening assessments and mandated risk management measures and tools in response to the outcomes of the categorization exercise for substances on the Domestic Substances List will create significant planning and implementation challenges for the Department. The volume and pace of work anticipated as a result of that exercise are expected to be significantly higher than that experienced under the first five years of CEPA 1999 implementation.

This subsection presents findings concerning the following evaluation criteria, which are intended to determine whether the Department has developed and implemented the processes and systems that will be required to realize the Act's expected outcomes:

• Have expected outcomes/goals/objectives been established? Are these agreed to?
• Has an implementation strategy with timelines, priorities and resources been established?
• Have roles and accountabilities been established? Are these being acted upon?
• Have resource needs been assessed and met? Are the identified "Strategic Assumptions" being used in the planning process?
• Has a measurement and reporting system been put in place to track progress towards strategic goals / expected outcomes?
• What organizational learning activities have taken place?

Environment Canada has not developed a CEPA 1999-specific set of expected outcomes for its implementation of CEPA 1999. The high-level expected outcomes guiding the Department's efforts over the evaluation period were articulated in the Clean Environment Business Line Plan. This plan contains two results areas that are relevant to CEPA 1999:

• the Air Result, which includes measurable environmental outcomes that are to be achieved within specified time frames; and
• the Toxics Result, which focuses primarily on processes and outputs, rather than environmental outcomes.

With the collaboration of departmental officials, the evaluation team developed a set of expected outcomes to assist in the conduct of the evaluation (see Appendix IV). These expected outcomes have been reviewed and agreed to by the Department's Accountable Leads (see Appendix II), for the purposes of assisting this evaluation. These expected outcomes, however, are not fully agreed to or aligned with relevant program-level strategies and goals and may not represent departmental policy.

The evaluation found that the Department uses the Clean Environment Business Line Plan^{Footnote xxxii}  as the overarching plan for CEPA 1999 (no separate CEPA 1999-specific strategic plan exists). Work on a Results-based Management and Accountability Framework for CEPA 1999 was initiated and later adjusted to cover the two key results areas for the Business Line (Air and Toxics). A Results-based Management and Accountability Framework for the Air Result has been completed and is being implemented; however, a Results-based Management and Accountability Framework for the Toxics Result is still under development.

The Results-based Management and Accountability Framework for the Air Result, the related Clean Air Agenda and the accompanying Federal Agenda on Cleaner Vehicles, Engines and Fuels represent "best practice" examples of departmental implementation strategies. These documents include:

• measurable, time-bound and environment-focused objectives;
• accountabilities and systems covering the complete management cycle of policy development, planning, implementation, measurement and reporting and senior management review; and
• sufficient resources to implement the most essential elements of the Clean Air Agenda, although the agenda was not fully funded.

While several examples of departmental "strategies" were identified for key program areas (e.g., the Toxic Substances Management Policy, Toxic Substances Management Process and the National Pollution Prevention Strategy), no other examples of similarly detailed implementation strategies were identified during the course of the evaluation. Less comprehensive program-level plans and strategies, however, were provided in support of the evaluation. In most cases, though, these remained in draft form, and it was unclear to the evaluation team whether these strategies reflected formal departmental policy and intentions or merely outlined possible options for future consideration

Roles and responsibilities for implementation of most aspects of CEPA 1999 are addressed through the accountability mechanisms of the Clean Environment Business Line and the Department's Accountability Charter. Aspects of CEPA 1999 where accountabilities could not be identified in this evaluation included the following:

• Accountabilities could not be identified for management and oversight of the federal house provisions of Part 9.
• An Accountable Lead could not be clearly identified for Nutrients (Part 7 Division 1), although the accountabilities are discussed in the CEPA 1999 Annual Reports.
• Given policy constraints, accountabilities for economic instruments, fees and charges and the recovery of costs and damages have not been established.

The CEPA 1999 Operational Review in 2001–02 assessed resource needs for the full implementation of CEPA 1999. The Government of Canada subsequently provided the Department with an additional $76.3 million a year for the implementation of CEPA 1999. These funds were to address mandatory obligations and replace resources from previous allocations that were scheduled to expire.

The main assumptions identified during the review of CEPA 1999 implementation remained valid at the time of the evaluation and continued to be used in departmental and program- level planning exercises. These assumptions are that:

• A total of 3450 substances from the Domestic Substances List will be "categorized in" as a result of the categorization exercise, scheduled for a September 2006 completion. These substances will be subjected to further screening risk assessments.
• Of those substances subjected to screening assessments, 500 will require some form of risk management action.

The Department has estimated that it requires an additional $40 million a year, on an ongoing basis, to:

• reduce by one-half the time to conduct screening-level risk assessments and any mandated risk management actions; and
• carry out a number of additional discretionary activities identified in CEPA 1999, such as:
  • environmental research;
  • environmental data collection, analysis and reporting;
  • risk management activities;
  • preparation for environmental emergencies; and
  • certain hazardous waste management activities.

Additional resource requirements have also been identified to support further progress in a small number of additional program areas, including:

• the federal house;
• biotechnology (ecosystem effects);
• marine environment; and
• compliance and enforcement.

At the departmental level, reporting is occurring through the annual Departmental Performance Report and the mandated CEPA 1999 Annual Report. These reports typically do not employ the performance indicators committed to by the Department within the Treasury Board Submission 2003 for implementation of CEPA 1999.

Few examples of reporting on program-level results were identified in the evaluation. Most program-level reporting focused on cataloguing activities and outputs. These activities and outputs are then reported through the Departmental Performance Report and the CEPA 1999 Annual Report. Reporting under the Clean Air Agenda and the Federal Agenda on Cleaner Vehicles, Engines and Fuels are examples of best practices. Measurement and reporting systems under these agendas include activities and outputs as well as progress against stated environmental performance and environmental outcome aspects.

Measurement and reporting practices at the level of individual risk management measures and tools vary. Most regulatory measures include some monitoring and reporting requirements. Some risk management measures and tools, such as guidelines and some codes of practice, however, do not include reporting. While many risk managers assess the effectiveness of the measures for which they are responsible, there is no formal requirement to do so systematically. Relatively few formal assessment reports were identified during the course of the evaluation.

The gaps in assessing the effectiveness of risk management measures and tools have been recognized by the Department. A Compliance and Enforcement Performance Assessment Tracking Initiative has been launched to help address these gaps. Nevertheless, some examples of risk managers changing risk management measures and tools to reflect assessment findings have been identified (e.g., changes to the regulation of polychlorinated biphenyls, or PCBs). Best practice examples of measurement and reporting at the level of the individual risk management initiatives include:

• annual reporting on the impacts of new fuel regulations for benzene and sulphur, which are publicly available through departmental web sites;
• assessment and reporting on implementation of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations;
• assessment and reporting on implementation of guidelines for the wood preservation sector; and
• mechanisms put in place to ensure that Section 58 declarations provide consistent information relevant to assessing the environmental impacts of pollution prevention plans.

Organizational learning was widely undertaken by Environment Canada during the formative period of CEPA 1999 implementation. The CEPA 1999 Operational Review in 2001-02 was the major organizational learning and planning initiative undertaken. Formal organizational learning activities also have been undertaken in most program areas, including:

• preparation activities in support of the five-year Parliamentary Review of CEPA 1999 (in 2003-04);
• review and learning activities conducted in support of the emerging sectoral tables process;
• CEPA 1999 National Advisory Committee Survey (2001);
• surveys of users of the Green Lane and the CEPA Environmental Registry (ongoing);
• preparation of the Science and Technology Management Review Panel Report;
• multistakeholder consultations regarding numerous regulatory and implementation reforms, including pollution prevention planning, new substance notification, management of hazardous waste and disposal at sea;
• review of the regulatory development process subsequent to publishing the Benzene in Gasoline Regulations;
• ongoing national and regional environmental emergency planning and review exercises;
• international exercises (e.g., implementation of the Stockholm Convention);
• pilot screening assessment initiative, involving 123 substances; and
• a "revisit" of the Ozone Annex in 2004, to document progress and identify and address any challenges.

This subsection presents evaluation findings concerning the following evaluation criteria, which are intended to assess the Department's potential to achieve the expected outcomes associated with CEPA 1999:

• Have demonstrable results been documented against any expected outcomes?
• Given current processes and progress, what can be said about whether expected outcomes will or will not be realized in time?

In most areas, it is too early to determine or report on demonstrable progress, as:

• the Department has only had five years in which to understand, resource and organize itself to deliver on the Act; and
• the results the Department expects to achieve with the Act have not been fully developed or articulated.

Nevertheless, Environment Canada has achieved demonstrable results in the following well-documented areas (more details are available in Section 2):

• Through the Green Lane and the CEPA Environmental Registry, Canadians have access to more and better information with respect to CEPA 1999.
• Monitoring, tracking and reporting systems associated with air quality and acid deposition have been strengthened and now provide nationwide coverage; these systems are being used in decision-making.
• Pollution prevention planning notices have provided industry the opportunity to identify and address toxic releases in a manner most appropriate to their operations.
• Preliminary categorization decisions have been made for about 17 000 substances on the Domestic Substances List; another 1000 substances have been identified for removal from the Domestic Substances List.
• Benzene concentrations in urban and rural areas have fallen significantly.
• The use of methyl tertiary-butyl ether (MTBE) in gasoline is approximately 95% lower than in 1998.
• Sulphur emissions remain well below the total allowable national emissions limit as documented in the Canada - United States Air Quality Agreement.
• On- and off-road vehicle, engine and equipment standards and standards associated with small spark and compression ignition engines are aligned with those of the United States; the standards will deliver significant reductions in the release of smog- forming emissions during the operational life of the equipment.
• Through environmental emergency planning regulations, more than 1500 facilities should be better prepared to prevent and respond to environmental emergencies.

Despite the progress identified above, the evaluation found that most program areas have not articulated long-term environmental objectives and rather focus on measuring and reporting on the completion of anticipated activities or the development of projected outputs. Until gaps in objective setting and measurement and reporting are addressed, the Department will face significant challenges in documenting demonstrable progress towards the Act's expected outcomes.

Expected outcomes are likely to be achieved in areas that have been assessed as highest priority by the Environmental Protection Service Executive Committee assigned with management of the Clean Environment Business Line. These areas include:

• categorization of existing substances;
• pollution prevention planning;
• the Clean Air Agenda and the accompanying Federal Agenda on Cleaner Vehicles, Engines and Fuels;
• environmental emergency planning;
• new substance notification;
• eliminating releases of persistent, bioaccumulative and toxic substances; and
• regulated activities in selected sectors.

Expected outcomes are unlikely to be achieved without changes to current plans or resources in areas involving:

• the federal house provisions of Part 9; and
• the enabling provisions provided by the Act in relation to economic instruments, fees and charges and the recovery of costs and damages.

The evaluation was unable to make a determination of whether the Department was on track to achieve expected outcomes concerning broader risk management and compliance promotion and enforcement activities:

• During the evaluation period, the Department's compliance promotion and enforcement activities focused on restoring capacity and setting priorities among previously existing (prior to March 2000) and new (since March 2000) CEPA measures. Measurement and reporting systems capable of documenting progress towards expected outcomes (including awareness levels and compliance rates) are just now being introduced.
• With respect to risk management, available documentation indicates that reductions in the use and release of some substances are occurring due to the Department's development and implementation of CEPA 1999 and non-CEPA 1999 measures. However, overall changes (in terms of the environmental performance of targeted facilities and in terms of actual changes to the quality of the environment) have not been fully tracked and reported. Environment Canada recognizes these gaps and has launched the CEPA Compliance and Enforcement Performance Assessment Tracking Initiative to address these.