Interim government response to review of Canadian Environmental Protection Act: part 3
Part 3. Interim response to the committee recommendations
This chapter provides an interim response to each of the House of Commons Standing Committee's recommendations. It also describes the current and emerging policies and practices for the implementation of the act that are relevant to the Committee's recommendations. The government is committed to considering and responding to the recommendations of both committees, and will do so through a final, consolidated response to both committee reports after reviewing the recommendations of the Senate Standing Committee on Energy, the Environment and Natural Resources.
3.1.1 State of the environment reporting
That the government publish biennially, in electronic and hard copy formats, a comprehensive state of the environment report to provide timely, accurate and accessible environmental information, integrated with socioeconomic factors, to improve decision-making and support progress towards sustainability.
The government recognizes that state of the environment reporting is useful for informing Canadians and supporting effective decision-making. The Canadian Environmental Protection Act, 1999 (CEPA) currently requires the government to report on the state of the environment. While the government acknowledges that Canadians must be well informed, some environmental conditions may require biennial reporting while others may not change sufficiently over a two-year time span to justify comprehensive reporting in such short intervals. The government will explore options to inform Canadians in a cost-effective manner using a range of timely and targeted reporting strategies and products. For example, under the Chemicals Management Plan, Health Canada has committed to prepare a State of Environmental Health Report every five years.
3.1.2 Risk assessment, safety and burden of proof
That the government amend Part 5 of CEPA to state that a guiding principle in controlling toxic substances is that industry has the responsibility of demonstrating, to the satisfaction of the Minister, that the risks of new and existing substances of concern are acceptable.
The government acknowledges the important role that manufacturers and importers play in contributing data to the assessment of substances of concern. Many of the current provisions in the act reflect this emphasis. Under the act, and the New Substances Notification Regulations (Chemicals and Polymers) and the New Substances Notification Regulations (Organisms), for example, proponents of new substances must provide the information needed to complete an assessment of a substance's potential environmental or human health impacts. The government can also require importers, producers and users to submit a range of information on any substance suspected of being toxic or capable of becoming toxic. The current act requires manufacturers and importers to submit, without delay, any information it obtains on a substance's toxicity or capability to become toxic.
The government is also undertaking new initiatives under the Chemicals Management Plan that relate to the intent of this recommendation. An important part of the Chemicals Management Plan is the Challenge Initiative, where the government is challenging industry and other stakeholders to provide information on the uses of 200 priority chemical substances and on the best ways to control any risks. The government is predisposed to conclude that each of these substances is toxic and has stated that it will implement a control measure to safeguard human health and the environment unless stakeholders provide new information as to why such action would not be needed for a particular substance.
Additionally, late in 2006, the government also published a proposal to use CEPA to place significant new activity (SNAc) notices on 150 priority chemical substances not currently used in Canada. These substances will not be allowed for use in Canada unless proponents provide the data needed to demonstrate that the substance will not pose an unacceptable health or environmental risk.
3.1.3 Information regarding the Domestic substances list
That Environment Canada, in assessing chemicals on the Domestic substances list (DSL) as well as any others yet to undergo an environmental assessment, recognize that chemicals may be persistently present because of their continuous release into the environment.
The government recognizes the need for risk assessments to consider ongoing or continuous exposure to humans and chronic exposure to the environment. These factors are already considered, where relevant, under CEPA risk assessments. The government will continue to incorporate best scientific practices to consider chronic effects of low-dose exposure rates in assessments.
3.1.4 Updating data
That the government amend CEPA to ensure that information regarding manufacture, import and use of substances is updated on a yearly basis.
The government recognizes the importance of an up-to-date inventory of the chemical substances in commercial use in Canada and has committed to create an inventory under the Chemicals Management Plan.
3.1.5 Information gathering notices
That the government amend s. 72 and s. 46 of CEPA in order that it may obtain information on any substances of concern so that decisions regarding substances are made on the most comprehensive data set possible.
The government will continue to explore opportunities to improve the already extensive information gathering authorities in CEPA. Sections 46 to 53 and 70 to 72 of CEPA provide the authorities for the National Pollutant Release Inventory and for various information gathering authorities that support other programs, such as risk assessment and regulatory development. Both the Chemicals Management Plan and the Regulatory Framework for Air Emissions are using the authorities in section 71 to collect information needed to conduct risk assessments and identify appropriate controls.
3.1.6 Sharing data
That, should Registration, Evaluation and Authorization of Chemicals (REACH) come into effect, the government immediately initiate negotiations toward an agreement to gain access to test data submitted under REACH that has been deemed confidential business information. In addition CEPA should be amended to require that information submitted to REACH on substances imported into Canada be submitted to Canadian authorities.
That the government enter into negotiations with other Organisation for Economic Cooperation and Development' (OECD) countries to exchange information respecting any substance of concern, and that CEPA be amended to this end if necessary.
Many international programs deal with the risk assessment or risk management of industrial chemicals and identify substances for which some action should be considered. These programs also promote the mutual acceptance and shared use of data, and encourage strengthened cooperation in the development of policies for assessing and managing risks to health and the environment. Canada actively participates in many of these programs. For example, it is an active participant in the Organisation for Economic Cooperation and Development's Chemicals Programme and intends to establish a strong relationship with the U.S. Environmental Protection Agency's Existing Chemicals Program to exchange information on substances of concern.
The Government supports the need to continue to work with international partners to eliminate duplication and help improve decision making on new and existing substances in Canada. Priorities for international information sharing on chemicals will be guided by the priorities under Canada's Chemical Management Plan.
The European Union's Registration, Evaluation and Authorization of Chemicals program (REACH) came into effect in June 2007 and is still at an early stage of implementation. The Government has initiated negotiations on agreements to obtain test data submitted under REACH. This will provide an opportunity for Canada to share its experience gained through CEPA, in particular through the categorization exercise. For new substances, CEPA provides adequate authority for the Government to require manufacturers and importers to include data submitted to REACH as part of the notification process, should the Government decide that such information would be needed.
CEPA provides several mechanisms for international collaboration, including the development of procedures for exchanging information with other jurisdictions regarding substances that are prohibited or substantially restricted in that jurisdiction. The Government will explore whether amendments to CEPA would be useful to improve international collaboration. For example, the acceptance of foreign assessments (in whole or in part) would be a continuation of the Government's ongoing work under the Mutual Acceptance of Notifications pilot project of the Organisation for Economic Cooperation and Development.
3.1.7 Quality of information
That the government amend CEPA to enable it to require third party verification of data provided by persons under s. 46 or s. 71 of the act.
The government recognizes that it may be useful to have the authority to require third party verification of information on a case-by-case basis, and will explore options to amend CEPA.
3.1.8 Assessments and confidential business information
That the government release complete draft assessments of new substances to notifiers and publish electronically complete draft assessments of existing substances, so that all stakeholders have a better opportunity to respond.
That the government facilitate public access to appropriate information by amending CEPA to make disclosure of confidential test data mandatory in a manner similar to the Pest Control Products Act.
The government appreciates the importance of facilitating public access to appropriate information so that the basis for government decision-making is as transparent as possible and that the public can also make informed decisions. At the same time the government respects the importance of protecting confidential business information.
Under CEPA, the government publishes draft risk assessments of existing substances for public comment. Summaries of the draft risk assessments are published in the Canada Gazette, while the full screening assessments are available in the CEPA Registry. In the future they will also be available via the Chemicals Management Plan web portal. The government also publishes the final versions of each assessment in the CEPA Registry. These publications include test data that are critical to the assessment's conclusion.
For new substances, the government currently releases draft assessment reports to notifiers upon request, publishes decision documents for new living modified organisms, and has initiated an external periodic review process. The government will consider whether the Pest Control Products Act provides a possible model for improving the approach to disclosing information under the CEPA new substances regime.
3.1.9 Improving the National Pollution Release Inventory
That the government of Canada provide sufficient funding to enable cooperation between Environment Canada and Statistics Canada to:
- Produce and publish an annual report critically analysing the results of the National Pollutant Release Inventory (NPRI) data including trends where possible; and,
- To ensure that the quality of NPRI data collected is continually improved to better inform Canadians and help strengthen policies to prevent pollution.
The government supports continued improvement of the quality of National Pollutant Release Inventory (NPRI) data and its analysis. Over the past few years, Environment Canada has developed and implemented a new methodology to derive trends from NPRI data. Environment Canada published the results of its NPRI trends analyses in fact sheets for the 2004 and 2005 reporting years. Discussions have also been initiated between Environment Canada and Statistics Canada to further improve estimates of the amount of pollutants being released in Canada, and to provide a greater understanding of the interaction between the economy and the environment, as well as pollution trends.
Environment Canada has also begun an intensive data quality improvement program. This involves collaborating with other governments, key industrial sectors and other stakeholders to simplify reporting requirements, incorporate additional guidance and quality control checks in the reporting software, and improve quality control activities after data is submitted.
That CEPA be amended to oblige the Ministers to put in place a permanent biomonitoring study that is representative of the Canadian population, including vulnerable populations.
The government recognizes that human biomonitoring is an essential tool in the assessment and management of toxic chemicals. It provides direct information on exposure by measuring levels of the substances in the human body and would improve the government's ability to decide how to protect the health of Canadians. Under the Chemicals Management Plan, the government is working with other agencies and levels of government to build a monitoring program to track Canadians' exposure to toxic substances.
3.1.11 Complex mixtures of chemicals
That the government:
- Amend CEPA to oblige the Ministers to perform research into the effects of complex mixtures of chemicals on human and environmental health;
- Use s.46 and s.71 to require industry to submit information on the effects of complex mixtures; and,
- Require information on the cumulative effects of substances with a common mechanism of toxicity in the New Substances Notification Regulations where there is reason to believe that such environmental or human exposures may occur.
The government acknowledges the importance of improving scientific understanding of complex mixtures and of cumulative effects. The definition of "substance" in CEPA is sufficiently broad to include complex mixtures. The Government has conducted and will continue to conduct assessments of complex mixtures, and request information from manufacturers and importers in these areas. Examples of complex mixtures already assessed under CEPA include effluents from municipal waste water, pulp mills, and textile mills.
Complex mixtures have also been identified as a research priority under the Chemicals Management Plan. The government is working to address complex mixtures under the petroleum sector and will further refine approaches as the Chemicals Management Plan progresses.
The science to support the understanding of cumulative effects is in its infancy, and Environment Canada has identified research on cumulative effects as an important strategic direction for its science activities. Research is also underway at Health Canada to investigate complex mixtures and to develop new chemical, toxicological and epidemiological methodologies to better understand the health effects of exposure to chemical mixtures on human populations.
3.1.12 Subclinical outcomes and chronic toxicity
That the government add developmental neurotoxicity tests to those required in the New Substances Notification Regulations and that such tests also be applied to existing substances of concern.
That the government make it a requirement for producers of new and existing substances deemed to be persistent or high production volume to perform chronic toxicity studies on these substances according to OECD Guideline 452, and submit the results to the Ministers as part of the risk assessment.
The government acknowledges the need to consider neurotoxicity and chronic toxicity tests when relevant. The government currently identifies when such tests are necessary on a case-by-case basis during the risk assessment process. Rather than requiring manufacturers and importers to submit such tests in all cases, CEPA provides a flexible framework to obtain and analyze whatever type of data is relevant to a given risk assessment. For new substances, CEPA provides the authority to request additional information or test data if the Minister suspects that a substance is toxic. Similarly, for existing substances, CEPA provides the authority to require submission of a wide range of information or of toxicological test data for the purpose of assessing whether a substance is toxic or capable of becoming toxic.
3.1.13 Improving timelines
That the government amend CEPA to ensure:
- In the case of a screening that determines a substance to be toxic, a timeline of two years from the beginning of the screening assessment to the commencement of an implementation plan; and,
- In the case of a screening that determines the need for a full Priority Substance List assessment, a timeline of five years from the beginning of the screening assessment to the commencement of an implementation plan.
The government is committed to completing risk assessments quickly and within as predictable a timeframe as possible. The Chemicals Management Plan is the government's response to dealing with the 4,300 substances of potential concern identified in the categorization process under CEPA. The Plan has set an ambitious goal of completing all assessments by 2020--a ten-fold increase in the previous rate of assessments. Specific timelines include assessing 1,200 low-concern chemicals by spring 2007 (complete), assessing 500 high-priority chemicals still in commerce by 2010, and assessing the final 2,600 medium-priority substances by 2020. These objectives will be accomplished by adopting a phased approach employing sectoral agreements where warranted, and working with international partners to share the workload.
3.1.14 Taking into account vulnerable populations
That CEPA be amended in the preamble to include recognition of the need to protect the most vulnerable in our society, particularly children, and that Part 5 be amended to include language similar to the Pest Control Products Act, directing that consideration of vulnerable groups take place in the risk assessment process, including an extra ten-times safety factor for children where appropriate.
The government recognizes the importance of considering vulnerable populations during risk assessments and currently does so. An objective of the Chemicals Management Plan is to promote consistency and coherence across federal legislation related to chemicals management. In keeping with this objective, the government will consider whether there is a need to strengthen the recognition of vulnerable populations in the act.
3.1.15 Taking into account vulnerable ecosystems
That the government amend CEPA to add an additional paragraph to the preamble recognizing the need to protect vulnerable ecosystems and that it explore fully its options under s. 330 (3.1) to create regulations with limited geographical application in order to protect the Great Lakes and any other vulnerable ecosystems in Canada.
The government recognizes the importance of considering vulnerable ecosystems during risk assessments. Ecological risk assessments under CEPA already look at vulnerable ecosystems.
The government also appreciates the importance of protecting the Great Lakes, and will continue to work with other jurisdictions to protect the Great Lakes region. The government will explore the full suite of risk management tools available under CEPA, including geographically-based regulations, when implementing its commitments under the Chemicals Management Plan, Turning the Corner: An Action Plan to Reduce Greenhouse Gases and Air Pollution, and the Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem. The government will also consider whether there is a need to strengthen the recognition of vulnerable ecosystems in the act.
3.2 Commercial and consumer products
3.2.1 The "In-commerce list"
That the government consider amending CEPA so that substances on the "In Commerce List" are prioritised in a similar way as categorization was done on the Domestic Substance List, while also considering that some of these substances may be persistently present because of their continuous release into the environment.
The "In Commerce List" does not have any explicit legal status under the current act. Essentially, it represents substances that were approved for use under the Food and Drugs Act and were in commerce between January 1, 1987 and September 13, 2001. The Government recognizes the importance of clarifying the legal status of these substances, and will examine options to amend CEPA to do so.
The government also recognizes the importance of better understanding the potential risks that may be associated with these substances, and has committed under the Chemicals Management Plan to work with stakeholders to review these substances. As with other CEPA risk assessments, ongoing or continuous human exposure and chronic exposure to the environment will be considered where relevant. The Government will explore options to ensure that it has the appropriate statutory authorities for the prioritization and assessment of these substances.
In addition, the government will work with stakeholders to promote best practices for the proper disposal of pharmaceuticals and personal care products to reduce their burden on the environment.
3.2.2 CEPA and the Hazardous Products Act
That the government immediately begin:
- Regulating products containing toxic substances using CEPA as the principal statute to this end; and,
- A review of the Hazardous Products Act in order to better coordinate it with CEPA.
Under both the Chemicals Management Plan and the Regulatory Framework for Air Emissions, the government is increasing its focus on the management of toxic substances that are associated with the creation, use and disposal of commercial and consumer products. For example, under the Regulatory Framework for Air Emissions, the government is taking action to reduce emissions of volatile organic compounds from cleaning products, personal care products, and paints.
The Chemicals Management Plan also emphasizes a more horizontal and integrated approach to assessing and managing toxic chemicals than has been the case in the past. Under the Plan, the government will coordinate actions among all relevant federal legislation to ensure consistent assessment approaches on the same or similar chemicals, and to ensure that actions are taken using whichever statute will most effectively address the risks. For example, in 2006 the government brought into force amended Cosmetic Regulations, under the Food and Drugs Act, which require mandatory ingredient labelling on all cosmetic products. Similarly, the Hazardous Products Act, which has been in force since 1969, will continue to be used to prevent or minimize hazards inherent in various products. The Hazardous Products Act has well established powers and authorities that enable the prohibition or regulation of consumer products where there "is or is likely to be a danger to the health or safety of the public."
3.3.1 Virtual elimination
That CEPA be amended by removing the requirement to establish a level of quantification before addition of a substance to the Virtual Elimination List
That the government amend CEPA to clarify that prohibition regulations are an option toward achieving the objective of virtual elimination.
The government recognizes that the current CEPA provisions have caused implementation challenges with respect to the requirement for a level of quantification. The government also recognizes that the instruments available to attain virtual elimination should not be limited to release limit regulations, and that other instruments could be useful. The government will review options for amending CEPA to enable it to appropriately address the virtual elimination of releases of persistent, bioaccumulative, anthropogenic, and non-naturally occurring (radionuclide or inorganic) toxic substances.
3.3.2 Action not process
That Environment Canada engage stakeholders in identifying and implementing best practice risk management actions as soon as a risk assessment has begun.
The government appreciates the importance of engaging stakeholders as early as practical in the risk assessment phase to identify best management practices in support of risk management, especially where substances are strongly suspected of being toxic.
3.3.3 Pollution prevention plans
That Environment Canada create a formal performance measurement mechanism for pollution prevention plans that will enable their achievements to be measured.
That the Commissioner of the Environment and Sustainable Development, in his next performance audit of the management of toxic substances, examine whether or not pollution prevention plans are reducing the creation of pollution.
The government acknowledges the importance of a performance measurement system for measuring the effectiveness of the pollution prevention planning requirements in CEPA and has already started to develop such a system. The government is also exploring options for the development of common performance indicators, and a protocol for reporting on these performance indicators to the public.
The Commissioner of the Environment and Sustainable Development sets his own agenda. If the Commissioner decides to audit the pollution prevention planning provisions of the act, Environment Canada and Health Canada will provide support as needed.
3.3.4 The substitution principle
That the government amend CEPA to include specific instructions to strengthen current efforts by which replacement of toxic substances by suitable alternative substances or technologies are considered in pollution prevention, risk assessment and management, and virtual elimination, including their risks and the technical and economic feasibility of substitution.
Under the Chemicals Management Plan, the government will establish a regulatory-based agenda to address all priority chemical substances in Canada. The government sees its role as establishing the regulatory incentives for industry to take the initiative, and to consider or develop economically-viable, safer alternatives to potentially harmful substances. Consumers can also influence industry to use safer alternatives. By improving public access to information, the Chemicals Management Plan will provide Canadians the information they need to make more informed decisions about which substances and products they will use.
3.3.5 Increasing resources
That the government allot sufficient funds to increase A-Base funding to the Departments of Health and Environment so that CEPA can be implemented more effectively.
The government has made substantial new investments in clean air and chemicals management in the last year (over half a billion dollars). The government will continue to review the ongoing resource requirements for the effective implementation of CEPA and other environmental and health protection priorities.
3.3.6 Public participation
That the government consider a provision for fine splitting, similar to that provided for in the Fisheries Act, and other intervener funding as means to address the identified financial barriers to public participation. In addition, that the government amend s. 22 (2) of CEPA so that an environmental protection action may be brought to court if the offence may result, in harm or serious risk of harm to the environment or human, animal, plant life or health.
The government will conduct further analysis to ensure that CEPA continues to support effective public participation.
3.3.7 Equivalency agreements
That the government amend s. 10 of CEPA to clarify that provincial permitting systems may qualify as equivalent, and add that equivalency agreements must contain provisions for monitoring to ensure that their effects are equivalent.
The government recognizes that equivalency agreements are an important mechanism to eliminate duplication with provincial, territorial, and aboriginal governments and enable the best-positioned jurisdiction to act. For example, under the Regulatory Framework for Air Emissions, the government will work to reach equivalency agreements with those governments that set provincial emissions standards that are at least as stringent as the federal standards.
The authority for equivalency agreements in CEPA enables the government to recognize provincial, territorial and aboriginal permitting schemes as equivalent to CEPA regulations. The government will explore options to clarify this authority.
CEPA already requires the government to report annually to Parliament on the administration of equivalency agreements.
3.4 Compliance and enforcement
That the Department of the Environment create a system to measure and evaluate the role and implementation of the enforcement provisions of CEPA.
The role of the enforcement provisions of CEPA is to provide the authority to enforce the act and its regulations through activities beginning with inspections to verify compliance, progressing to investigations of alleged violations and to measures by enforcement officers to prevent, stop or correct alleged violations.
CEPA requires the government to enforce the act in a fair, predictable and consistent manner, thereby providing a level playing field for regulated parties. The government recognizes the importance of measuring whether that enforcement is fair, predictable, consistent and effective.
The government will examine how other jurisdictions, both within and outside Canada, achieve such measurements.
3.5 The use of the word "toxic"
That the government change Schedule 1 to include the following information pertinent to each substance on it:
- The subsection of section 64 that was met that triggered listing;
- A brief synopsis of the reasons why it is toxic at the doses observed; and,
- When available, the risk management tool intended to apply to the substance.
The government recognizes the importance of effective risk communication under CEPA to support informed decision making by the public. Communicating the risks of toxic substances throughout the CEPA management cycle--from the risk assessment, the decision that a substance is toxic and its addition to the List of Toxic Substances, through to the development of preventive and control measures, compliance promotion, enforcement, and monitoring--will be important to enhance the capacity of the Canadian public to make informed decisions critical to their own lifestyle choices and health outcomes.
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