Follow-up report to the Standing Committee on the Canadian Environmental Protection Act: chapter 7

7 Delivering important environment and health protection programs

7.1 Hazardous waste

Part 7 division 8 of The Canadian Environmental Protection Act, 1999 (CEPA) provides Environment and Climate Change Canada (ECCC) with the authority to regulate the transboundary movement (imports, exports, transit through Canada and interprovincial/territorial shipments) of hazardous waste and hazardous recyclable material. Through regulations, and permit conditions for international movements made under those regulations, the transboundary movement of hazardous waste and hazardous recyclable material is managed in an environmentally sound manner, protecting the environment and human health. Authorities under part 7 division 8 of CEPA allow Canada to implement international agreements that set parameters around the international movement of hazardous waste and hazardous recyclable material.

The committee recommended that CEPA be amended to “[…] expressly provide the authorities to suspend or revoke permits issued under subsection 185(1), in specified circumstances” (recommendation 74). The government agrees with the committee and this recommendation will inform its work to reform CEPA. In the interim, the government also commits to consider whether this issue could be addressed through regulatory amendments.

The committee also recommended “[…] that notices and manifests required under the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations should require the provision of information on the presence of CEPA-toxic substances in waste streams, or the quantities or concentrations in which such substances might be present” (recommendation 75).

The government agrees that information gathering is an important function of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations. ECCC is reviewing the definition of “hazardous” under the regulations, including its linkage to substances on schedule 1 of CEPA. Should regulatory changes be warranted, they would be included in a future round of amendments.

Currently, the purpose of information gathering under this regulation is to inform ECCC of whether the waste stream is hazardous (as defined by the regulations). Information concerning the presence of some substances on schedule 1 is already collected as part of this process, if it is one of the main contaminants in the hazardous waste or hazardous recyclable material.

7.2 Enforcement

CEPA provides ECCC with a suite of tools to enforce and, facilitate compliance with, the act and regulations. The majority of the enforcement provisions are found in part 10 of the act. The committee made five recommendations specifically related to CEPA’s enforcement and some other recommendations that would impact the way the act is enforced.

7.2.1 Environmental Violations Administrative Monetary Penalties Act

The committee recommended “[…] that the Environmental Violations and Administrative Monetary Penalties Act be amended to authorize the refusal or revocation of a permit for unpaid administrative monetary penalties” [sic] (recommendation 77). The government agrees with the committee (see Discussion Paper 10.3) and this recommendation will inform its work to reform CEPA.

The government supports the committee’s recommendation “[…] that the Environmental Violations and Administrative Monetary Penalties Regulations be brought into force immediately” [sic] (recommendation 78). The government is pleased to note that the Environmental Violations Administrative Monetary Penalties Regulations (EVAMPR) came into force in June 2017. EVAMPR makes administrative monetary penalties available for violations of certain provisions designated in parts 7 and 9 of CEPA.

7.2.2 Access to enforcement information and public participation

The compliance and enforcement policy for CEPA establishes the principles for enforcement of CEPA, and lets other governments and the public know what to expect from ECCC and its enforcement officers. The committee recommended that ECCC “[…] hold an open and transparent review of the compliance and enforcement policy for CEPA” (recommendation 79). The government acknowledges the committee’s concern, but does not intend to seek public comment on the compliance and enforcement policy.

ECCC is updating this document, and anticipates publishing it within a year. The compliance and enforcement policy is an internal guidance document used by enforcement officers. Although it is intended for internal use, it is publicly available for transparency reasons and to increase awareness about how officers conduct their work. The compliance and enforcement policy does not impose obligations on members of the public, and as such is different than regulations which are developed through consultation and with a public comment period.

The committee also recommended that ECCC “[…] design a new, online, searchable public environmental enforcement database while respecting privacy concerns as required under the law” (recommendation 80). ECCC has a public environmental enforcement database called the environmental offenders registry. This registry contains information on convictions of corporations and sentencing obtained under CEPA, as per section 294.2 of the act and has been in place since 2009. It allows members of the public to search for corporate convictions using the name of the corporation, its home province, the province where the offence occurred, or the legislation under which the conviction was obtained. In addition, any environmental protection alternative measures agreed upon following the laying of charges are published on the CEPA environmental registry.

Work is underway to improve the environmental offenders registry to make it more user-friendly. For example, ECCC intends to make all of the records on the environmental offenders registry accessible and viewable. In order to increase the accessibility of information, content on the environmental offenders registry will eventually be able to be filtered by several criteria such as the amount of the fine, the date, the location, or industrial sector.

ECCC also submits an annual report to parliament on the administration and enforcement of CEPA, as required under section 342 of the act. This report contains specific information on the total number of contraventions under CEPA (divided by regulation), the number and type of enforcement actions taken, and the number of investigations and prosecutions started and concluded in the fiscal year.

7.2.3 Enforcing the Canadian Environmental Protection Act, 1999

The committee recommended that ECCC “[…] work with provincial enforcement officials to harmonize environmental testing and sampling requirements” (recommendation 81). The government acknowledges the challenges faced by regulated entities as a result of duplicative testing and enforcement required under provincial and federal legislation. ECCC will work with provinces towards a more streamlined approach to joint cases.

Environmental protection actions (EPAs) enable citizens to participate in the enforcement of CEPA by bringing a suit against a person who is alleged to have committed an offence under the act if it meets the preconditions outlined in the act. The committee made recommendations to change the EPA regime by lowering the barriers to bringing an EPA, introducing rules and procedures to protect individuals who bring an EPA from personally suffering damages, specifying the circumstances in which an EPA may be brought and codifying safeguards against actions that are duplicative of government enforcement actions, frivolous, vexatious or otherwise brought in bad faith (recommendations 30-34).

ECCC acknowledged that lowering the threshold to bringing an EPA might encourage public participation under CEPA (see discussion paper 12.1). However, after close analysis of the committee’s recommendations relating to these issues, the government is of the opinion that the legislative changes recommended by the committee could fundamentally alter the way CEPA is enforced, changing the balance between civil and governmental enforcement.

For this reason, these recommendations are best addressed as part of a broader review of environmental enforcement.

7.3 Pollution prevention

CEPA defines pollution prevention as "the use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health."

Pollution prevention planning is a process to examine current operations and develop a plan to eliminate or reduce pollution at the source. A pollution prevention plan is similar to any other business plan. Management and staff need to have a clear understanding of why the plan is being implemented, what will be done and who will do it. Such plans can target a specific pollutant, an entire production process or the whole facility.

A pollution prevention planning notice is a regulatory and enforceable instrument under part 4 of CEPA that gives the Minister of ECC the authority to require the preparation and implementation of pollution prevention plans. A notice is published as a risk management action for certain toxic substances listed on schedule 1 of CEPA. The notice stipulates a deadline to prepare and implement pollution prevention plans. It also includes “factors to consider” that specify issues or activities that must be considered during the preparation and implementation of the pollution prevention plan. These include the objective or targets for managing substances and may include sampling/modeling activities, best management practices, pollution prevention methods, and other considerations such as avoiding certain alternatives to the toxic substance listed in the notice. The authorities under part 4 also require persons subject to the notice to report on the activities within their pollution prevention plan and results achieved.

The committee recommended that ECCC and HC “[…] address the lack of understanding and persistent misinformation- that pollution prevention planning does not work because it is not a regulation, is not used against the most toxic substances and is not enforceable – which are affecting the use of the part 4 provisions of CEPA” (recommendation 38, sub-bullet 1). The government agrees with the committee and is considering ways to improve the presentation of information on the pollution prevention planning web section. This web section also provides ongoing performance measurement and results reporting for in progress and completed pollution prevention planning notices.

The committee recommended that ECCC and HC “[…] encourage promotion of the use of part 4 authorities including by designating a leader for pollution prevention planning in both departments” (recommendation 38, sub-bullet 2). The government supports the intent of this recommendation, and commits to providing support for the development and implementation of pollution prevention planning notices through ECCC's internal center of expertise for pollution prevention planning notices. This center of expertise has been in place since 2002.

With respect to the committee’s recommendation that CEPA be amended to “[…] provide authority for the Minister of Health to use the part 4 provisions for those substances that are exclusively toxic to human health […]” (recommendation 38, sub-bullet 3), the government supports the intent of this recommendation, and commits to use part 4 to address health risks in circumstances where a pollution prevention planning requirement would be the most effective way to manage the risk that is being addressed.

There are currently no obstacles in the act that would restrict Health Canada from developing pollution prevention planning notices to address risks to human health in collaboration with ECCC. In fact, notices requiring the preparation and implementation of pollution prevention plans have been issued for substances that are exclusively toxic to human health. For example, a notice targeting the polyurethane and other foam sectors (except polystyrene) was issued. It required the preparation and implementation of pollution prevention plans in respect of toluene diisocyanates (three health toxic substances on schedule 1 of CEPA).

The committee recommended that ECCC and HC “[…] make results of pollution prevention planning notices publicly available more quickly than has been the case with some” (recommendation 38, sub-bullet 4). The government agrees with the committee and commits to publish the performance results of pollution prevention planning notices in a timely manner. Measuring the overall progress and results achieved by an individual pollution prevention planning notice is important to evaluating the effectiveness of each notice in meeting its intended objectives.

The government supports the committee’s recommendation that ECCC and HC “[…] be required to periodically publish a report illustrating the effectiveness of all pollution prevention plans” (recommendation 38, sub-bullet 5). The government agrees and recently published a report on the effectiveness of completed pollution prevention planning notices in April 2018. The ten completed notices included in this analysis and report required 563 facilities to prepare and implement pollution prevention plans to reduce environmental releases of 21 toxic substances. Of the facilities that implemented pollution prevention plans, 92% were successful in achieving the risk management objective. Many of the facilities that did not meet the objectives were still able to achieve considerable reductions. These results have helped contribute to the overall reduction of pollution into the environment. Pollution prevention planning notices can be effective in changing behaviour and achieving results to help protect the environment and human health.