Guidelines for the use of information gathering authorities: chapter 3

Section 3: Prior to Issuing a Notice

Prior to issuing a notice requiring information under subsection 46(1), in the majority of cases, one of the two processes described in sections 3.1 and 3.2 will generally be followed. These processes will be used to: clearly identify the required information and the manner in which it will be used; coordinate information requests within the federal government and with other governments; and consider the costs and benefits to the Minister and the person to whom a notice would be directed.

Under the first process, Environment Canada will undertake an assessment of the need to issue a notice and the notice will be pre-published. The second process involves a multistakeholder consultative approach to engage potentially affected stakeholders prior to issuing a notice. Both processes can deal with either "one-time" requests for information or requests for the ongoing provision of information, for example, requests for information for the purpose of creating inventories that track trends in releases of pollutants.

3.1 Assessment and Pre-publication of Notice

Prior to the Minister issuing a notice requiring information under
subsection 46(1) , Environment Canada will undertake an assessment of the need to issue a notice. Based on that assessment, the Minister will determine whether or not to proceed with the pre-publication of a notice to allow stakeholders the opportunity to provide comments. If a notice is pre-published, comments received will be considered in determining whether to publish a notice in the Canada Gazette.

3.1.1 Assessment

The assessment, an internal decision making tool, will provide the Minister with the appropriate information to determine whether or not a notice should be issued. The assessment will generally outline the purpose of the request, describe the information required, identify the target population, state the benefits of the information for decision-making, demonstrate that, where possible, efforts were made to coordinate with other government departments and other governments, and specify the applicable timelines.

As part of the assessment, reasonable efforts will be made to communicate with the person, or a representative group of the persons, to whom a notice would be directed in advance of issuing a notice to obtain their views on the costs of providing the information and to determine whether the information being sought has already been recently submitted to the federal government or a provincial, territorial or Aboriginal government.

The following considerations will assist the Minister in determining the merit of gathering the information described in the assessment.

A) Purpose of the Information Required

An assessment will address the purpose of the information required based on those identified in subsection 46(1) of CEPA '99 and indicate for which duty or function under the Act it will contribute to.

B) Required Information and the manner in which it will be used

The assessment will include a clear description of the required information and will indicate the manner in which the information will be used (e.g. to produce a general report that does not link data to specific people, to compare data results, etc.).

C) Target population

The proposal will describe who would have to comply with a section 46 notice which could include, for example, a specific industry sector, municipal or provincial governments, or persons who use a certain amount of a specified chemical.

D) Evaluation Criteria

The costs and benefits to the persons who will be affected by a notice should be identified by them during the comment period following the pre-publication of the notice. These costs and benefits will be taken into consideration before the final notice is published. In order to assess the cost and benefits to the Minister of obtaining the required information, the following questions will be addressed in the assessment:

What is the value or benefit of the information in the decision-making process?

The criteria will identify the benefits of obtaining the information for the protection of the environment and human health, its role in decision-making and how it relates to Environment Canada's mandate.

Is a section 46 notice the most efficient way of obtaining the required information?

Based on this criterion, the assessment will include a summary outlining the available options for obtaining the information and a reason for choosing to issue a notice under section 46. The summary should demonstrate that a notice is the most efficient way of obtaining the information.

What is the estimated number of people, if known, who will be required to respond to the notice once issued?

Such an estimation will provide an indication of how many people will be required to respond and the quantity of information that will be received and require processing.

What is required to comply with the notice?

The assessment will identify the manner in which a person to whom a notice is directed must provide the information. It will clearly explain what a person will have to do to comply with the notice.

What are the estimated potential costs to the Minister, including costs associated with handling and storing the information, compliance monitoring and verification, and enforcement activities related to the proposed notice?

The potential costs to the Minister for the handling and storing of the information, compliance monitoring and verification, and enforcement activities which may arise as a result of the notice should be addressed. As such, the assessment will include an estimate of these potential costs based on the estimated number of people required to comply with the notice.

Will the information be made available to the parties providing it and/or other members of the public? If so, in what form?

The assessment will specify whether or not the information collected will be made available to the parties that provided it and/or to other members of the public and in what form (e.g. report).

E) Coordination of Information Requests

In addition, in order to proceed in an effective, efficient and coordinated manner, prior to issuing a notice under subsection 46(1), reasonable efforts will be made to determine if the information required is available through another source within Environment Canada, other government departments/agencies or other levels of government (provincial, territorial or Aboriginal).

This will serve to minimize the duplication of notices requiring similar or identical information and consequently should reduce the costs associated with information gathering. A summary of these efforts will be included in the assessment.

i. Published Sources of Information

Reasonable efforts will be made to ascertain whether the information being sought is already available through published sources of information such as scientific journals, technical reports or Internet Web sites.

ii. Information available within Environment Canada

Reasonable efforts will also be made to determine whether the information required is already in the possession of Environment Canada. This includes reviewing published sources of information such as departmental scientific and technical reports, annual reports, and documents on the CEPA Environmental Registry. Internal consultations with the appropriate directorates and services will also be necessary to determine whether or not Environment Canada possesses, has recently requested or intends to request the information being sought.

If the information is available within Environment Canada, it will be shared internally unless an agreement exists with the person who supplied the information which limits the use that can be made of the information.

iii. Other Government Departments

Prior to issuing a notice requesting information, reasonable efforts will be made to assess whether the information required is available from another federal government department/agency. This will be achieved by consulting with interdepartmental networks and the department(s) with the mandated responsibilities for dealing with the subject matter.

If another federal government department/agency has the information, the Minister may request access to the information subject to any applicable legislation and any confidentiality provisions. However, it should be noted that although a federal department/agency may possess the required information, the Minister of the Environment may not be able to have access to that information if, among other things, an agreement exists between the supplier of the information and the federal department/agency which prohibits the disclosure of the information. In such cases, a notice may be issued even though another department/agency possesses the information being sought.

If the Minister obtains access to information from another federal department, the supplier of the information will be notified and asked to verify if the information is accurate and current, and provided with an opportunity to request, in writing, that the information be treated as confidential under section 51.

Should another government department/agency be contemplating the collection of the same information as the Minister, it would be possible to coordinate or to jointly issue a notice requesting information, under their respective statutes. Such coordination will minimize cases where two ministers issue separate notices under their own authority for similar or identical information.

iv. Other Governments

To determine whether the information being sought is already in the possession of a provincial, territorial or Aboriginal government, the members of the CEPA National Advisory Council, which include one representative for the Minister of the Environment, the Minister of Health, each of the provinces and territories, and a maximum of six representatives of aboriginal governments, will be consulted to determine if their governments:

The appropriate provincial/territorial ministries may also be consulted.

It should be noted that although another government may possess the required information, the Minister of the Environment may not be granted access to that information. In some cases, a notice may have to be issued even though another government possesses the information being sought.

Should another government want to collect the same information as the Minister, to avoid duplicate information gathering efforts, the Minister may, under subsection 46(2), sign an agreement with that government and require that a person to whom a notice is directed submit the information to the Minister or to that government. The government accepting the information could become the "single-window" through which a person would meet the requirements.

Such agreements would establish the conditions respecting access to all or part of the information, by both the Minister and the other government(s), and any other conditions agreed to by the governments involved.

F) Timelines

The proposal will include a rationale for the choice of the date for submission of the required information and the period during which the notice would be in effect, to a maximum of three years. This will contribute to the setting of realistic timelines and avoid the burden of simultaneous requests.

3.1.2 Pre-Publication of Notice

For information requests that are not subject to multistakeholder consultations, prior to issuing a notice, the Minister will publish in the Canada Gazette a copy of the proposed subsection 46(1) notice for a 60-day public comment period. The proposed notice will also be accessible through the CEPA Environmental Registry. This will provide stakeholders and potentially affected persons with the opportunity to voice their views regarding the type of information that will be collected and the costs of gathering the information.

3.2 Multistakeholder Consultations

In some cases, prior to issuing a notice under subsection 46(1), instead of proceeding with an assessment and pre-publication of a notice as previously described, a multistakeholder consultation process can be undertaken to allow potentially affected stakeholders to comment on the need for the information, the uses to which it will be put, any associated costs of collecting the information, and the availability of the information elsewhere. Any costs or benefits to the person to be affected by the notice, should be identified by them through the multistakeholder process, so that they can be taken into consideration before the notice is published.

The multistakeholder consultative approach allows full discussion of the issues, including those identified in Section 3.1 of the Guidelines.

If a multistakeholder approach is used, the objectives of the initiative will be clearly defined at the outset of the consultations and include a decision-making process.

Such a process is followed for information gathering for the purposes of the National Pollutant Release Inventory (NPRI)1 that is required to be established under section 48 of the Act.

3.2.1 NPRI Multistakeholder Consultations

The NPRI uses a multistakeholder consultative process to make modifications to the program, including adding and deleting substances from the NPRI substances list.

Stakeholders are involved very early in the process and can thus address issues of concern such as the costs and benefits of obtaining the required data prior to the issuance of a notice.

The NPRI substances list is the basic building block for the program. The list, along with the reporting requirements, is included in the Notice that is published in the Canada Gazette for each reporting year. subsection 46(1) provides the authority to issue the notice which obliges owners or operators of facilities that manufacture, process or otherwise use one or more of the NPRI-listed substances under prescribed conditions to report the amount of these substances released into the environment.

The Process

Environment Canada (EC), from time to time, proposes changes to the substances on the NPRI substances list, the reporting requirements or the NPRI program itself. Proposed changes include those proposals received from stakeholders that EC determines should proceed to consultation.

EC notifies stakeholders of the proposed changes and recommends the type of consultation process (as per step 1 below) to be used in reviewing these changes.

The following outlines the various steps in the NPRI multistakeholder process2 for making changes to the substances list:

  1. Consultation Options

    a) For multiple, complex or controversial candidate substances or changes, a multi-stakeholder working group (MSWG) is struck to develop recommendations.

    MSWG members are expected to have technical and policy expertise. They may include representatives of industry, environmental organizations, Aboriginal organizations, other government departments, other EC programs, provincial/territorial/Aboriginal governments and municipal governments.

    b) Where only one or two additions or deletions, or minor changes, are proposed, using a paper-based consultation with stakeholders, versus the establishment of a MSWG, is the norm.

    c) Other consultation mechanisms, such as workshops, may be warranted in addition to a MSWG or paper-based consultation. Workshops may also be used to address broad directional issues and help set priorities for program development.

  2. Review of Preliminary Recommendations

    Preliminary recommendations arising from the consultations undertaken in Step 1 are published for review and comment, and are circulated to stakeholders.

    The list of stakeholders generally covers all relevant sectors including those that currently report to the NPRI, as well as any that would become reporting sectors should the recommendations be adopted. Any party can request to be added to the circulation list.

  3. Feedback on Preliminary Recommendations

    Stakeholder feedback on the preliminary recommendations is considered prior to finalizing the recommendations. Where a MSWG has been established, it will have the opportunity to review the broader stakeholder input and consider revisions to its preliminary recommendations in light of this input.

  4. EC Response

    The Minister reviews the recommendations arising from the consultation process, and publishes a formal response.

    The Minister publishes revised requirements, where applicable, in the Canada Gazette, Part I. A reasonable period of time is allotted for organizations to fulfill reporting requirements following a Gazette notice.

3.2.2 Stakeholder Proposed Changes

Any party is entitled to make proposals to EC with respect to additions or deletions to the NPRI substances list or changes to the NPRI program. The following is a list of conditions that apply to such proposals:

3.2.3. Evaluation of Proposed Changes

The following factors were developed to guide decisions within the NPRI program for making changes to the list of substances. These decision factors allow for the evaluation of proposed changes and equate to the development of an assessment under Section 3.1.

The following questions will be considered by the multistakeholder working group and the Minister in determining whether a proposed addition or deletion has merit. The explanatory text accompanying each italicized decision factor is critical to a full understanding of the decision factor. Thus, it is important that the decision factors not be reproduced in isolation from this text.

1. Does the substance meet the NPRI criteria, that is:

  1. Is the substance manufactured, processed or otherwise used (M,P,O)3 in Canada?
  2. Is the substance of health and/or environmental concern?
  3. Is the substance released to the Canadian environment?
  4. Is the substance present in the Canadian environment?

The first two criteria are intended to be absolute, in the sense that a substance must be M,P,O in Canada, and of health and/or environmental concern, to be added to the NPRI. Similarly, if these criteria are not satisfied for a substance currently on the NPRI, it should be deleted.

The third and fourth criteria indicate that there must be reasonable expectation that a substance is being or may be released into the Canadian environment in order that it be added to or retained on the NPRI. In general, however, unless there is evidence or analysis to the contrary, it can reasonably be assumed that a substance that is M,P,O in Canada is likely to be released, and therefore present, in the Canadian environment.

2. Do facilities contribute significant releases of the substance?

There are various ways in which 'significant' can be characterized. The concept relates not only to the proportionate quantity of a substance released by NPRI reporting facilities, but also to the potential for health or environmental impacts. In other words, even if facilities do not account for a major proportion of total releases, facility releases may nonetheless be significant depending on such factors as location, timing, concentration, and the hazard associated with the substance.

3. Does inclusion of the substance support one or more of the objectives of NPRI?

The following are the objectives of the NPRI:

4. Is the substance reported elsewhere? If it is reported elsewhere, is there nonetheless additional value in reporting the information again?

If a substance is reported or regulated elsewhere, the value of adding or deleting it from the NPRI would be considered, taking into account whether:

If a substance reported elsewhere is to be included or retained in the NPRI, to the greatest extent possible, efforts will be made to consolidate the reporting requirements under the two programs (assuming compatibility of data requirements).

5. Is the substance already on the NPRI in some form? If it is already on the NPRI in some form, is there nonetheless additional value in including it in another form?

When considering adding a substance in another form (e.g., tetraethyl lead as a separate listing from lead and its compounds), the potential for double-counting will be avoided. In other words, where possible, the listing of a compound as both an individual substance and included as part of an aggregate category will be avoided. To the extent possible, substances will be listed with their Chemical Abstracts Service (CAS) Registry Number.

3.2.4 Results of the Evaluation of Proposed Changes

i) Addition to the NPRI

If application of the preceding decision factors indicates that a candidate substance should be added to the NPRI, the value of the information versus the costs of obtaining it and making it available through the NPRI will be taken into account. Efforts will be made to implement reasonable measures to reduce burdens, hence costs, without compromising the NPRI. This same consideration will apply to any modifications proposed to the NPRI program, for example, changes to the reporting requirements or format.

ii) Deletion from the NPRI

If application of the preceding decision factors indicates that a substance currently on the NPRI should be deleted, the following additional factors will be taken into account prior to finalizing a recommendation:

Further information on the NPRI such as non-confidential information and data, background information and stakeholder consultation activities can be found on the NPRI Web site.

1 The National Pollutant Release Inventory (NPRI) contains information on pollutants released to the environment and transferred for disposal, as well as data on recycling and pollution prevention activities. It is the only legislated, nation-wide, publicly-accessible inventory of its type in Canada.

2 This process does not limit Environment Canada's authority and responsibility to make timely and appropriate decisions regarding the administration of the NPRI program.

3 The manufacturing, processing or other use of a substance have specific definitions within the context of the NPRI.M,P,O, of the substance includes the M,P,O of the substance as a by-product. A by-product is an NPRI substance that is incidentally manufactured, processed or otherwise used at a facility at a concentration of less than one percent by weight, and is released on site to the environment or transferred off site for disposal.

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