Notice of objection filed by the Canadian Trucking Alliance

By fax 819-953-0279

July 12, 2000

Roy Brooke
Senior Policy Advisor
Office of the Minister of the Environment
Les Terrasses de la Chaudière
10 Wellington Street, 28th Floor
Hull, Quebec
K1A 0H3

Dear Mr. Brooke:

I would like to again thank you and Ms. Bjorkquist for meeting with us on July 10th to discuss various issues relating to trucking and the environment. As promised, we will be sending you a briefing note regarding the land freight marketplace.

In addition, Gowlings identifies three other categories of concern:

CTA will be expressing these above concerns formally in its written response to the proposed regulation contained in the June 10 Canada Gazette 1. However, we think it important that the minister and his staff also consider these issues. We would greatly appreciate it if we could maintain a dialogue on this matter. Thanks in advance.

David H. Bradley
Chief Executive Officer

cc. Sara Bjorkquist, Special Assistant, Office of the Minister of the Environment

August 8, 2000

By fax: 819-953-4936

Danie Dube
Acting Chief
Chemicals Evaluation Branch
Department of the Environment
Hull, Quebec

By fax:819-997-2769

Arthur Sheffield
Team Leader
Regulatory and Economic Analysis Branch
Department of the Environment
Hull, Quebec

Dear Ms. Dube/Mr. Sheffield:

The Canadian Trucking Alliance (CTA) is very concerned over Environment Canada's regulatory proposal to add particulate matter of less than 10 microns (PM 10) to the list of toxic substances under the Canadian Environmental Protection Act (CEPA).

According to scientific research conducted by the Health Effects Institute (HEI) and the Scientific Advisory Board (SAB) of the US Environmental Protection Agency (EPA) there is evidence that the labeling of all PM emissions as toxic is premature. Furthermore, we attach a peer review of Environment Canada's Assessment Report for PM10, conducted for CTA by the environmental toxicology and risk assessment experts, GlobalTox. This peer review supports CTA's belief that the labeling of all PM emissions as toxic is premature.

Moreover, CTA also obtained the attached legal advisory from Gowlings regarding the possible legal ramifications of listing PM10 as toxic. The possibility of class action lawsuits brought against producers of PM10 due to Environment Canada's listing of PM10 will be heightened. Moreover, by listing PM10 as toxic Environment Canada may lose control as a regulator regarding "floor and ceiling" emission policy control measures. The courts may assume this policy role. The trucking industry does not believe this to be a wise shift in regulatory control from elected officials to appointed justices.

Based on the above, CTA urges Environment Canada to not list PM emissions as toxic under CEPA. Based on the scientific evidence to date, the listing of PM10 as toxic is at best premature. Moreover, it does not appear that Environment Canada has fully contemplated the legal implications of such a move. To carry forward regardless would be reckless on the part of Environment Canada.

Part I: Synopsis of HEI & SAB Findings Regarding PM 10

Part II: GlobalTox Review of Environment/Health Canada's Assessment of Respirable Particulate Matter Less Than or Equal to Ten Microns (PM10) under CEPA (Assessment). July, 00.

Part III: Gowling's Advice Concerning Possible Legal Implications of the Listing of PM 10 as Toxic Under CEPA

Part IV. PM inventory in Canada. Does Listing PM10 As Toxic Help To Address The Main Source Of The Pollutant?

Total PM inventory in Canada
PM10 Source Source Percentage PM2.5 Source Source Percentage
Dust from Unpaved Roads 38% Forest Fires 39%
Agriculture tilling and wind erosion 16% Dust from Unpaved Roads 20%
Forest Fires 13% Residential fuel wood combustion 9%
Construction Operations 10% Dust from Paved Roads 9%
Dust from Paved Roads 10% Wood Industry 4%
Agriculture/Animals 3% Pulp and Paper Industry 3%
Residential fuel wood combustion 3% Heavy duty diesel vehicles 2%
Wood Industry 2% Prescribed burning 2%
Pulp and paper industry 1% Other Industries 2%
Agriculture/Animals 2%
Railway Locomotives 1%
Other off-highway diesel engines 1%

Based on the above table it is clear that the transportation industry, truck and rail have a role to play in reducing the national PM10 inventory. (It is interesting to note that although there are over 700,000 trucks in Canada and only 4,000 locomotives, trucks only equate to 2 per cent of total PM10 and locomotives 1per cent). However, based on the above the transportation industry has but a small role to play in the overall reduction plan vis-à-vis other sectors. The main source of PM10 is dust from unpaved roads.

Concluding Remarks

Consequently, if Environment Canada proceeds in its commitment to list PM10 as toxic not only would it be in error, it would be needlessly exposing owners of PM10 source pollutants to potential lawsuits --- legal actions that will eventually weaken the regulatory authority of the agency. CTA would recommend that Environment Canada take the following actions regarding the issue of PM10:

If Environment Canada were to proceed in the manner prescribed by CTA the department would eliminate all the concerns outlined in this document while still increasing its power to reduce emissions.


David H. Bradley

Mr. Stephen Laskowski
Canadian Trucking Alliance
555 Dixon Road
Rexdale, Ontario
M9W 188

Dear Mr. Laskowski:

Under CEPA 1999, the Governor-in-Council, on the recommendation of the Ministers of Environment and Health, may make an Order adding a substance to the List of Toxic Substances. (CEPA 1999, s. 90) A substance may be listed as toxic if it meets the following definition:

We believe that the listing of a substance as a Toxic Substance under CEPA 1999 may have significant and far-reaching implications for those who emit the substance into the environment. We have identified four main categories of concern:

  1. Limitations on emission by regulation;
  2. Quasi-criminal consequences for violations of CEPA 1999 or its regulations;
  3. CEPA 1999 special remedy provisions; and
  4. Civil liability risks related to the emission of a Toxic Substance.

We will address each category of concern in turn.

Once a substance is added to the list of Toxic Substances the Governor-in-Council may make regulations regulating the substance. Accordingly, federal jurisdiction would then extend to emissions of PM10. This may include regulations respecting:

  1. The quantity or concentration of PM10 that may be released into the environment, either alone or in combination with any other substance, from any source or type of source;
  2. The place or areas where PM10 may be released;
  3. The activity in the course of which PM10 may be released;
  4. The manner in which and conditions under which PM10 may be released into the environment. either alone or in combination with any other substance;
  5. The submission of information relating to the release of PM10 to the government;
  6. The maintenance of books and records and the conduct of sampling, analysis, tests, measurements or monitoring of PM10 emissions. (CEPA 1999, s. 93(1))

As well, once a substance is added to the List of Toxic Substances, the federal Minister of the Environment may require "any person or class of persons ... to prepare and implement a pollution prevention plan". (CEPA 1999, s. 56)

CEPA 1999 also contains provision for the implementation of measures to lead to the virtual elimination of certain toxic substances. Such regulations would have to be grounded upon a finding that PM 10 may have a long term harmful effect on the environment, is persistent and bio- accumulative in accordance with the regulations, and is inherently toxic to human beings or non-human organisms as determined by laboratory or other studies, and is present in the environment primarily as a result of human activity. (CEPA 1999, s. 77(3) and (4))

Notice of the regulatory action intended to be taken is required to be given in the Canada Gazette.

A contravention of CEPA 1999 and its regulations is an offence. The Crown may proceed either by indictment or by summary conviction. If the Crown proceeds by indictment the maximum fine is $1 million, and a penalty of imprisonment of up to three years may also be imposed. If the Crown proceeds by summary conviction, the maximum fine is $300,000, and the Crown may seek a term of imprisonment of up to six months.

CEPA 1999 also provides that where a corporation commits an offence, "any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence". Officers and directors are required to take all reasonable care to ensure compliance with the Act and its regulations, failing which they would be guilty of an offence under CEPA 1999.

CEPA 1999 provides for a new class of citizen action to compel compliance with the legislation and the regulations. Such an action is called an "environmental protection action". A citizen may initiate an environmental protection action where the Crown has failed to enforce the Act. The action may seek an order directing measures to be taken to rectify non-compliance as well as to secure a plan to correct or mitigate harm to the environment.

CEPA 1999 also provides that where there is a release of a Toxic Substance in contravention of a regulation responsible persons are required to take all reasonable measures to prevent a further release and to mitigate the dangers to the environment or to human life or health that may result from the release.

Furthermore, CEPA 1999 contains a provision that where there has been a contravention of the Act or the regulations, any person who has suffered loss or damage as a result may bring an action against the offending party for compensation for the damage proved to have been suffered as a result of the contravention, as well as an amount to compensate for legal costs associated with the action. Accordingly, a violation of the Act or the Regulations is a sufficient basis for an action, without requiring proof of negligence or the elements required to establish any other common law tort.

It may be argued that a person emitting a Toxic Substance has a heightened duty of care to take all reasonable measures to prevent harm to others. It may be expected that those who may claim that they have been harmed by the emission of PM10 would advance the proposition that the listing of PM10 as a Toxic Substance places those who emit PM10 on notice that the emissions present a significant risk of harm and they ought to have acted accordingly to avoid or eliminate such emissions.. Those who allege that they have been injured as a consequence of the emission of PM10 can be expected to assert a breach of a heightened level of responsibility, if not indeed strict liability to ensure such harm does not occur. There should be little doubt that a heightened exposure for liability for resulting harm will exist for those who emit PM10.

You should also be aware that there is a line of jurisprudence which has found that compliance with a regulatory standard does not necessarily afford a defence. Accordingly, if CEPA 1999 establishes PM10 emission regulations, compliance with those regulations would not necessarily be a defence to a civil action; the governing principle pursuant to this jurisprudence is whether adherence to the regulation required the result. In this situation, the emission of PM10 to a regulatory standard would not be mandatory, accordingly compliance with the regulatory standard would not be a basis for a defence.

This report is not intended to be construed as a legal opinion concerning the liability of those who emit PM10, bur rather is intended to identify issues which should be considered as matters of serious concern in any discussion concerning the Toxic Substance designation of PM10.

In our view, if PM10 is listed as a Toxic Substance, it will likely have significant implications for those who emit PM10.

The emission of PM10 may be subject to stringent regulation and may require the preparation of and adherence to pollution prevention plans. A violation of a Toxic Substance regulation governing PM 10 emissions under CEPA may result in quasi-criminal prosecution. The offending entity and its officers and directors may be subject to financial penalties and offending individuals may be subject to incarceration. Citizens may be empowered to commence environmental protection actions if the Crown fails to enforce compliance with its regulations.

Non-compliance with CEPA 1999 or its regulations may be a sufficient basis to found an action for damages resulting from PM10 emissions. The listing of PM10 as a Toxic Substance arguably leads to a higher duty of care for the emitters of PM10, and indeed may place those who emit PM10 in a strict liability position, one in which the issues of negligence or nuisance are irrelevant; if damage is caused, then there is liability. In our view, those who emit PM10 will face heightened exposure to civil actions if it is listed as a Toxic Substance. The proposed regulation of PM10 under CEPA 1999 as a Toxic Substance should be presumed to be a significant step. Its significance for PM10 emitters should not be underestimated, and warrants careful evaluation.

Yours very truly,
Gowling Lafleur Henderson LLP

Mark L. Madras
Certified by the Law Society as a Specialist in Environmental Law

July 25, 2000

Mr. Stephen Laslowski
Director, Policy Development
Canadian Trucking Alliance
555 Dixon Road
Toronto, Ontario M9W 1H8

By regular mail and e-mail

Dear Mr. Laslowski:

Re: Review of Environment/Health Canada's Assessment of Respirable Particulate- Matter Less Than or Equal to Ten Microns (PM10) under the Canadian Environmental Protection Act (CEPA)

GlobalTox was retained by the Canadian Truckers Alliance (CTA) to conduct a reiview of Environment and Health Canada's evaluation of Respirable Particulate Matter Less Than or Equal to Ten Microns (PM10) as a Priority Substance under the Canadian Environmental Protection Act (CEPA).

The following letter-report outlines GlobalTox's comments on the following document:

This letter-report was prepared by GlobalTox International Consultants Inc. for the CTA. The material in it reflects GlobalTox's best judgment in light of the information available to GlobalTox at the time of preparation. Any use which a third party makes of this report, or any reliance on or decisions to be made based on it, are the responsibility of such third parties. GlobalTox accepts no responsibility for damages, if any, suffered by any third parties as a result of decisions made or actions taken based on this report.

There are three definitions of "toxic" under CEPA, which are set out in Part 5 (Section 64) of the Act, namely1 :

The rationale for the inclusion of PM10 on the second Priority Substances List (PSL2) was as follows2:

The above paragraph makes the following assenions concerning adverse effects of PM10 on human health:

These effects-related statements will be evaluated in the remainder of this letter-report.

A number of key issues were identified during GlobalTox's review of the PSL2 assessment report on PM10 . These are summarised below:

Scientific investigations can yield apparently conflicting or inconsistent information. Different investigators focus on different questions, use different methods, and interpret their data in different ways. Therefore, it is important to evaluate all relevant scientific information in arriving at a conclusion on any particular question. The conclusion of a scientific assessment should be dictated by the weight of scientific evidence, and not by the most extreme (positive or negative) findings.

It was interesting to note that a number of the conclusions presented in the report refer specifically to the "weight-of-evidence" with respect to the potential health effects associated with PM10 exposure. However, based on the data presented in the report, it does not appear as though it considered all the available evidence on the health effects associated with PM10 . The document does not acknowledge a number of reports which bring into question the reliability of the data upon which PM10 health effects assessmemts are based. The report also does not sufficiently address the availability of data suggesting negative or non-significant associations of PM10 with specific health effects. Though the "weight-of-evidence" appears to support a weak association between PM10, and some health effects, the magnitude and possible causal nature of these associations remain uncertain.

The uncertainty around whether the entire "weight-of-evidence" is considered in this report may be due to the fact that the approach to the identification and review of studies is not clearly presented. 1t is not evident if the report considered a number of findings presented in several studies which would appear to suggest that the association of specific health effects with PM10 exposure remains uncertain. Therefore, it is not clear whether the literature reviewed in support of this report was representative of the full spectrum of findings with respect to the particular issues under discussion.

Given the complexity of assessing the health effects associated with PM10 , and the important fact that one is assessing a complex mixture, we were surprised at the cursory manner in which confounding factors are considered in this assessment. When presenting data, the report simply states that "confounding risk factors were taken into account in the analysis", or words to that effect. A description of the specific confounding variables considered is never clearly provided. Given the very important role that these variables might have on the analysis of the potential health effects associated with PM10 , this very brief qualification is not sufficient to provide the reader with an appropriate degree of confidence concerning the data and conclusions presented by the report. As presented, it is not possible to ascertain if all potential confounding variables were appropriately considered, and consequently, whether the findings are entirely due to PM10 toxicity. This is extremely important, given the manner in which the report discounts the findings of some studies suggestive of negative associations between PM10 exposures and specific health effects. In the majority of these cases, the report observes that either the statistical power of the data presented in the reports was not strong due to limitations in sample size, or that the study did not fully consider appropriate confounding variables. Given these observations, it is surprising that the conclusions in the report do not sufficiently take account of the uncertainties associated with the assessment of this complex mixture. This is reinforced in the following description of the uncertainties of the risk analysis (cf. Section 3.1.4):

This statement acknowledges that a number of important issues remain to be addressed in assessing the health risks associated with PM10 . Consequently, though the report may present sufficient evidence to suggest a weak association between PM10 exposure and a multitude of health effects, it is important to stress that the support for such associations are weak at best, and that further investigations into these associations are warranted. As such, it is our opinion that the data presented in support of the report's conclusion are limited and many not be representative of the true risk of PM10 . Although we concur with the report that its findings may support "a reasonable basis for preventative action", the confidence in the data presented in this assessment is weak and additional work is recommended.

Evaluation of whether a substance is "toxic" under the CEPA definitions, as with any analysis of health effects or risks, is dependent on a reliable estimate of potential exposure. The report acknowledges the uncertainties associated with the current state of knowledge concerning PM10 exposure. These uncertainties are based on the fact that even though there is a vast inventory of monitoring data, the majority of the data represent 24-hour ambient concentrations measured at fixed sites. The report acknowledges that there is significant site-specific variability in the distribution of PM10 concentrations, and that there is some uncertainty associated with the use of fixed-area monitoring data as surrogates for human exposure. However, the report fails to address the significant regional variability in PM10 levels.

The lack of confidence in the overall exposure assessment presented within this report highlights a need for further research in this area, and brings into question the defensibility of the conclusions presented in the report.

The strength with which the conclusions are presented in the report is surprising, given the uncertainties discussion, presented under Section 3.1.4 of the report. The level of uncertainly in our understanding of the potential health effects associated with PM10 remains high, and this report presents little information to address these uncertainties. However, in spite of these very significant uncertainties, the conclusions presented in the report are stated definitively, and the level of confidence in the conclusions is reported to be "moderate to high" based on the "sufficient weight-of-evidence...". Some of the key uncertainties noted in the report include:

Although PM10 may be associated with specific health effects, this must be considered uncertain based on the information in the report. The report's rather definite conclusions do not appropriately reflect this level of uncertainty.

The report presents some supporting data to suggest that PM10 may be associated with respiratory and pulmonary health dysfunction. However, the report does not characterise specific impacts on the respiratory/pulmonary systems. Specific impacts on respiratory and/or pulmonary function and the mechanism of toxicity are not addressed. Although the report presents some data concerning potential long-term effects, the data set for long-term toxicity is limited and is not included in the basis of any of the conclusions presented in the report. Therefore, although it would appear that this assertion is confirmed, at least to a degree, it is also clear that additional work is required to further characterise these potential effects.

This assertion is addressed under Sections (hospitalisation) and (school/work absenteeism) of the report. With respect to school absenteeism, the number of studies in support of this assertion is limited, and the degree to which the data presented under this section is representative of Canadian ambient PM10 conditions is uncertain. This is due to the observation that in the study by Ransom and Pope (1992), the data presented was for ambient PM10 concentrations ranging between 41 to 51 µg/m3 (which is at the high range of mean ambient PM10 concentrations across Canada presented under Section (11 to 42 µg/m3).

With respect to the assertion of increased hospitalisation, there is a large data set of supporting data presented in the report. The data presented in this set and the methodology and study design employed in these studies appear to be highly variable. In addition, the confounding variables that are addressed in these studies are also highly variable, and some of the data are based on derived PM10 levels from non-direct measurements of PM. In fact, the data considered in the report to be the "most reliable" (Burnett et al., 1995) is based on measured sulphate levels, and did not consider PM10 directly. Therefore, the confidence in the available data concerning the relationship between PM10 and increased hospitalisations remains uncertain.

Based on this review, it appears as though this report can only support the need for additional work with respect to the evaluation of the health risks associated with PM10 . As such, the need for an assessment of the potential health risks associated with PM10 still remains.

GlobalTox concludes that there is significant uncertainty associated with the conclusions kinted in the Environment/Health Canada PSL2 report on PM10 . The strength of association between a number of the health effects and PM, is weak at best, and further work is required to elucidate the biological plausibility of these associations. Though PM10 may be associated with specific health effects, the confirmation of, and risks related to, such associations are poorly characterised. Although the conclusions presented by the study might support "a reasonable basis for preventative action", they give a misleading impression as to the degree of confidence afforded by the available database.

Further work should be undertaken to locate peer-reviewed scientific studies that respond to the limitations identified above. Where necessary, new research (or further synthesis of existing information) should be undertaken to expand the knowledge base to the point where a more definitive and defensible conclusion can be advanced with respect to whether PM10 are "toxic" as defined under CEPA.

GlobalTox appreciates the opportunity to assist the CTA in its review of Environment and Health Canada's evaluation of PM10 under CEPA. Please do not hesitate to contact me at 519-766-1000 ext. 223 should you have any questions concerning this letter-report.

Yours sincerely,
GlobalTox International Consultants Inc.

Ronald W. Brecher, PhD, DABT, C.Chem.

1 Canadian Environmental Protection Act (CEPA), 1999 - Statutes of Canada 1999,Chapter 33. Environment Canada, 1999, p. 39.

2 Report of the Ministers Expert Advisory Panel on the Second Priority Substances List Under the Canadian Environmental Protection Act (CEPA), PSL2 Secretariat October, 1995, p. 15.

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