Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 9


9. Improving information gathering provisions

Information gathering under the Canadian Environmental Protection Act (CEPA) relies on provisions in Parts 3, 5 and 6 of the Act, and information-related provisions found in the various regulations and instruments throughout the Act.

9.1 Enhance the transparency of collected information

Issue

Section 313 of CEPA allows persons who are required to report information under CEPA to request, in writing, that the information be treated as confidential. CEPA does not require the person to provide reasons why this information should be treated as confidential, unless it is required under a Governor in Council regulation issued under paragraph 319(a).

The Minister is unable to disclose any information for which a request for confidentiality has been submitted, except in certain situations specified in sections 315 to 317 of CEPA. For example, the Minister may disclose information for which a request for confidentiality has been made if the public interest in health, safety, or protection of the environment outweighs any material financial loss or prejudice to the competitive position of the person who provided the information, and any damage to the privacy, reputation or human dignity of any individual that may result from the disclosure. However, it is difficult for the Minister to assess these competing interests when no information has been provided to support the confidentiality request.

Possible Approach to Address the Issue

CEPA could be amended to require persons who submit a request for confidentiality under section 313 to provide the Minister with reasons to support the request. This could be tailored to allow the Minister to require information on request or to require that reasons be provided in certain situations. 

9.2 Expand information gathering authorities

Issue

There are some limitations associated with CEPA’s information gathering authorities.

Subsection 71(1) of CEPA authorizes the Minister to require persons, via a notice, to submit certain information related to a substance for the purpose of assessing whether a substance is toxic or capable of becoming toxic.

  • When issuing a notice under paragraph 71(1)(b), CEPA does not expressly provide the authority for the Minister to request the submission of information such as the methodology, data or models used in developing information or collecting or processing samples. This limits the departments’ ability to compare and properly interpret the information collected.
  • When issuing a notice under paragraph 71(1)(c), CEPA does not expressly provide the authority for the Minister to request that samples of toxicological tests or other tests be submitted along with the results of the tests. This is needed in order to verify the information provided.

Possible Approach to Address the Issue

CEPA could be amended to: 

  • Provide the Minister with the express authority to request the following information under section 71 for the purpose of assessing whether a substance is toxic or capable of becoming toxic:
    • other information, such as methodology, data, models used, etc.
    • samples of the toxicological tests and/or the other tests.

9.3 Facilitate administration of information gathering authorities

Issue

Certain information gathering and information reporting authorities under CEPA are missing the express administrative tools needed to facilitate and modernize the information gathering process.

  • The sections 46 and 71 information gathering provisions do not expressly require persons to update the information they provide. As a result, the Minister may be in possession of information that is not up to date.
  • Most CEPA authorities related to making regulations or instruments or to gathering information can require the regulatee to maintain and retain records. The period of time during which these records will be maintained is not always clear.

Possible Approach to Address the Issue

CEPA could be amended to:

  • Allow sections 46 and  71 notices to require some information to be updated if it changes
  • Ensure that there are clear, consistent time frames (e.g. 7 years) for the maintenance and retention of records related to regulations, instruments and information gathering, but also allow these timeframes to be tailored if needed, in specific circumstances.  
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