Appendix D

Before a board of review established under section 333(1) of the Canadian Environmental Protection Act, 1999

In the matter of the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33;

And in the matter of a final screening assessment of Decamethylcyclopentasiloxane (D5), Chemical Abstracts Service Registry Number 641-02-6, conducted pursuant to section 74 of the Canadian Environmental Protection Act, 1999;

And in the matter of a recommendation by the Minister of the Environment and the Minister of Health that Decamethylcyclopentasiloxane (D5) be added to Schedule I to the Canadian Environmental Protection Act, 1999 under section 77(2) of same;

And in the matter of a proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999, C. Gaz. 2009. I. Vol. 143, No. 20 in relation to Decamethylcyclopentasiolxane (D5);

And in the matter of a request for a board of review under section 332(1) of the Canadian Environmental Protection Act, 1999, in which the Silicones Environmental, Health and Safety Council of North America is the Applicant and the Minister of the Environment is the Respondent and the Canadian Cosmetic, Toiletry and Fragrance Association and the coalition consisting of the Canadian Environmental Law Association, the International Institute of Concern for Public Health, Chemical Sensitivities Manitoba and the Crooked Creek Conservancy Society of Athabasca are intervenors.

Silicones Environmental, Health and Safety Council of North America

Applicant

– and –

The Minister of the Environment

Respondent

– and –

Canadian Cosmetic, Toiletry and Fragrance Association and the coalition consisting of the Canadian Environmental Law Association, the International Institute of Concern for Public Health, Chemical Sensitivities Manitoba and the Crooked Creek Conservancy Society of Athabasca

Intervenors

1. On October 28, 2010, the Siloxane D5 Board of Review (the “Board”) held a conference with the parties to the Review. In attendance were counsel representing Canada and the Silicones Environmental, Health and Safety Council of North America (“Silicones Council”).

2. At the outset of the conference, the Board noted the broad mandate from the Minister of the Environment to inquire into the nature and extent of the danger posed by Siloxane D5 and invited all parties to provide submissions as to their respective views on the scope of the Board’s mandate. Counsel provided their views at that time. Subsequent to the conference, the Board requested the views of the two interested persons who were granted intervenor status, the Canadian Cosmetic, Toiletry and Fragrance Association (“CCTFA”) and the coalition consisting of the Canadian Environmental Law Association, the International Institute of Concern for Public Health, Chemical Sensitivities Manitoba and the Crooked Creek Conservancy Society of Athabasca (the “Coalition”).

3. The Board has considered the submissions of all parties in reaching its decision and has concluded that its inquiry will focus on the nature and extent of the danger posed by Siloxane D5 to the environment or its biological diversity.

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4. A brief outline of the steps leading up to its establishment will help to provide context to the work of this Board. In 2008, the Ministers of Health and the Environment issued screening assessments of siloxane D4 and Siloxane D5. The screening assessments considered whether, based on the information available at that time, siloxane D4 and/or Siloxane D5 posed a danger to the environment and/or human health.¹¹ The screening assessment with respect to Siloxane D5 concluded that:

5. Following that screening assessment, an Order was issued in the Canada Gazette, Part I¹³ on May 16, 2009 in which it was proposed that both siloxane D4 and Siloxane D5 be added to Schedule 1 of the Canadian Environmental Protection Act, 1999,¹⁴ (“CEPA”). On July 10, 2009, the Silicones Council filed a Notice of Objection requesting that a board of review be established pursuant to section 333 of CEPA for both siloxane D4 and Siloxane D5.

6. On July 20, 2010, the Minister of the Environment wrote to the Silicones Council stating that he would not establish a board of review to consider the conclusions reached with respect to siloxane D4. However, the Minister went on to say that a further inquiry into the nature and extent of the danger posed by Siloxane D5 was warranted considering the “…advent of information and data not previously examined.”

7. Consequently, on August 21, 2010, the Minister issued a Notice in the Canada Gazette, Part I¹⁵ (the “Notice”) establishing the Board. That Notice stated, in part:

8. While the Notice provides Terms of Reference for the Board’s review, there is nothing in the Terms of Reference that specifically defines the scope of the Board’s mandate. Accordingly, the Board decided to consider this matter and issue its determination on what it believes to be the scope of its mandate.

9. In its submissions, Justice Canada stated that the broad powers granted to the Board by the CEPA allows it to carry out its mandate as a de novo review of the nature and extent of the danger posed by Siloxane D5 and could encompass both issues of the environment and human health. That said, Justice Canada further noted that the Board could more effectively deliver on its mandate by narrowing its scope.

10. For its part, the Silicones Council stated that the Board’s mandate should be restricted to issues of the nature and extent of the danger posed by Siloxane D5 to the environment, as the screening assessment concluded that, based on the information available, Siloxane D5 did not pose a danger to human health. Neither the Notice of Objection nor any new scientific evidence of which the Silicones Council was aware called this conclusion into question.

11. Both intervenors provided their respective views on the scope of the Board’s mandate as well. CCTFA takes the position that the review should be limited to “elements of the environmental risk assessment for which new information is available”. The Coalition stated that the Board should apply the Precautionary Principle in all aspects of its review, and should consider, inter alia, whether Siloxane D5 biomagnifies up the food chain, the impact on the environment and human health of Siloxane D5 and any other chemicals associated with its disposal and the long-term, cumulative impact of siloxanes D4, D5 and D6 on human health, and in particular, on vulnerable populations.

12. Taking into account the background leading up to the establishment of the Board, and the views of parties, the Board has concluded that the scope of its review should focus on the nature and extent of the danger posed by Siloxane D5 to the environment or its biological diversity.

13. The Board was established following the Minister’s consideration of the Notice of Objection filed by the Silicones Council. The Notice of Objection indicated that new data and information related to the effects of Siloxane D5 on the environment or its biological diversity were available to cast into doubt the conclusion reached by the government in the screening assessments.

14. While the Board recognizes the potentially broad scope of its mandate, at this point, it does not believe that issues related to human health should be the subject of this review. In reaching this decision, the Board took note of the preamble referred to above in the Notice dated August 21, 2010 where it stated that, according to the screening assessment, Siloxane D5 is entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity. There is no mention in the Notice to issues related to human health.

15. The Board also notes that even though the CEPA provides that a board of review may be established by the Minister of the Environment alone or in conjunction with the Minister of Health, the Notice states that the Minister of the Environment alone has established this Board.

16. Further, the Board has been advised by parties that the new data and information available following the issuance of the government's screening assessment relates only to environmental or biological diversity issues.

17. In coming to this decision, the Board has carefully considered the points that the Coalition raised in its submission where it proposed a broader scope of review. No doubt, some of the points they raise will be discussed during this process, including the precautionary principle. But other points, including the cumulative impact of siloxanes D4, D5 and D6 on human health, and their impact on vulnerable populations, as well as the human health issues they urge the Board to consider are not supported by new information and, in the Board’s view, are beyond the mandate of this Board in this review.

18. While the Board will focus on issues related to the environment or its biodiversity, it reserves the discretion to revisit the scope of its inquiry following its review of the post-screening assessment data and information. Should these data and information indicate that matters related to human health should also be considered, the Board will inform the parties and provide them with an opportunity to address these issues.

DATED this 16th day of November, 2010

“John Giesy”

John P. Giesy Ph.D., FRSC Chair, Siloxane D5 Board of Review

“Keith Solomon”

Keith R. Solomon Ph.D., Fellow ATS Member, Siloxane D5 Board of Review

“Sam Kacew”

Sam Kacew Ph.D., Fellow ATS Member, Siloxane D5 Board of Review

¹¹ The Environment Canada screening assessment of siloxane D4 concluded that the substance was “entering or may be entering the environment in a quantity or a concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity, but are not entering the environment in a quantity or a concentration or under conditions that constitute or may constitute a danger in Canada to human life or health.” See Canada, Environment Canada & Health Canada, “Proposed Risk Management Approach for Cyclotetrasiloxane, octamethyl-(D4) Chemical Abstracts Service Registry Number (CAS RN): 556-67-2 Cyclopentasiloxane, decamethyl-(D5) Chemical Abstracts Service Registry Number (CAS RN): 541-02-6” (January 2009), online: Environment Canada, <http://www.ec.gc.ca/ese-ees/7026FB59-A1FD-4A3B-82EE-CA8180660867/batch2_556-67-2_rm_en.pdf> at 4.

¹² Canada, Environment Canada & Health Canada, “Screening Assessment for the Challenge Decamethylcyclopentasiloxane (D5) Chemical Abstracts Service Registry Number 541-02-6,” (November 2008) online: Environment Canada <http://www.ec.gc.ca/substances/ese/eng/challenge/batch2/batch2_541-02-6.cfm> [Screening Assessment].

¹³ Vol. 143, No. 20 (16 May 2009).

¹⁴ S.C. 1999, c.33.

¹⁵ Vol. 144, No. 34 (21 August 2010) [Notice].

¹⁶ Ibid. [emphasis added].