National Pollutant Release Inventory for Canada: final report, chapter 6


UNRESOLVED ISSUES

The Committee was not able to agree on all the issues it discussed. This chapter describes the issues that remain unresolved at this time.

5.1. ISSUES RELATED TO THE PURPOSE OF THE NPRI

The following are issues related to the NPRI purpose on which Committee members could not reach a consensus for recommendation to the Minister of the Environment. (The Committee's consensus statement on this issue is in chapter 3.)

5.1.1. Emergency response planning

Committee members from labour and environmental groups have proposed that the NPRI should serve emergency response planning purposes. At present, the public cannot easily tap into an available data base to find out about the risk of a catastrophic accident in their community. The NPRI could fill this need.

Industry and government representatives (except Ontario) do not believe that emergency response planning should be a purpose of the NPRI. These stakeholders maintain that emergency response issues are best resolved through existing multistakeholder groups like the Major Industrial Accidents Council of Canada (MIACC), for which a group of experts is already addressing all aspects of the subject.

The Ontario Ministry of the Environment representative does not object to including emergency response as an NPRI purpose.

This issue is addressed in more detail in section 5.4.2.

5.1.2. Tracking reductions in the use of "toxic" substances
  • Environmental group and labour representatives have proposed that the inventory should be used to track reductions in the total quantity of NPRI substances used. In their view, the NPRI should include information on the amounts of each NPRI substance that each reporting facility used, produced, generated as a by-product, consumed, recycled, or transferred in or out as product.5

    These Committee members believe such information is essential to measuring the progress in reducing hazardous substance use, and to determining priorities for future government and industry environmental programs. They also believe that these data would alert the public to hazardous substances handled by workers; incorporated into consumer products; transported, over neighbourhood roads, rails and waterways; or stored in communities.

  • On the other hand, government representatives (except Ontario) do not agree that the NPRI should be used to track the use of hazardous substances. They believe that expanding the NPRI into a use inventory goes far beyond the Green Plan commitment. It would also add greatly to the cost of maintaining the NPRI data base. In their view, the primary NPRI goal is to track substances released into the environment, not to monitor their use. Finally, these committee members point out that many NPRI substances are not considered to be "toxic" (under CEPA), nor is it proposed that they be banned or phased out of use.

  • Dissenting from this view, the Ontario Ministry of the Environment representative supports using the NPRI to track reductions in the use of priority toxic substances.

  • Industry members do not agree that the NPRI should be used to track toxic substances' use. They maintain that:
    1. The NPRI should focus on its objective of establishing a comprehensive data base of substance releases for Canada. Each additional data collection/reporting requirement diverts scarce and valuable resources from achieving this key objective.
    2. With very few exceptions, the quantity of a substance manufactured, processed or otherwise used has no correlation with releases or environmental impact.
    3. Including "use" information in the NPRI would support arguments that quantity of substance can be correlated to releases, resulting in an incorrect prioritization of environmental issues.
    4. Requiring such data to be reported would substantially increase the complexity and cost of the reporting process, out of proportion to its value. The cost is not insignificant for reporters.
    5. Detailed use information, unlike data on releases, is confidential business information and would unduly complicate handling of NPRI data.
    6. While some stakeholders believe that information on substance use will help to encourage pollution prevention, it is not clear how this would occur. There is, in fact, no national definition of pollution prevention in Canada. Hence it is extremely difficult to determine how reporting use, rather than releases, will encourage pollution prevention. Pollution prevention has to be broadly defined to allow the maximum flexibility in reducing society's overall impact on the environment.
    7. The NPRI cannot be used to establish a toxic use inventory without considerable policy debate, as well as significant changes to the existing NPRI format.

5.1.3. Measuring progress towards pollution prevention
  • Representatives of the Ontario government, environmental groups and labour have proposed that the NPRI should measure progress towards pollution prevention. These Committee members define pollution prevention as any action that reduces or eliminates the creation of pollutants at their source. Pollution prevention is therefore achieved through raw material substitution, product reformulation, process redesign or improved maintenance and operations. It is the option of choice in the pollution management hierarchy of a number of jurisdictions (including Ontario and the U.S. Environmental Protection Agency), because it reduces the amount of waste requiring future management.

    These same stakeholders believe that the NPRI should track pollution prevention. The NPRI should gather information on the quantity of NPRI substances recycled, treated or used for energy recovery on-site. With these data, the NPRI could serve as a basis for estimating the total chemical waste created by a facility, as well as any reductions in waste resulting from pollution prevention measures.

  • Industry and the federal government do not believe that the NPRI should monitor pollution prevention at this time. In the absence of a commonly accepted definition of pollution prevention, they believe that requests for such data are premature.

5.2. ISSUES RELATED TO THE REPORTING CONDITIONS

Committee members could not agree on a recommendation to the Minister of the Environment on the following issues related to the reporting conditions. (The consensus recommendations on this issue are in section 4.2.)

5.2.1. An "or" release reporting condition

Environmental groups and labour have proposed that an additional reporting condition be added to conditions A and B, namely:

C. or the release of one tonne or more of an NPRI substance per year.

This third condition would be an or condition. If conditions A and B are met and the proposed condition C is not met, the facility would have to report the substance. If one or both of conditions A and B are not met, but condition C is met, the facility would still have to report.

The labour and environmental group committee members believe this release condition would ensure that all significant releases to the environment are reported. They are particularly concerned that substantial releases of unintentional by-products could be missed without this third condition.

Under the current proposal, a facility would have to produce up to 10 tonnes of a substance as a by-product before being obliged to report it. Because they are usually unwanted, by-products could be released to the environment in significant quantities (up to 9,999 kg) without having to be reported.

For some releases, such as persistent toxic substances for example, the reporting condition should be lower than one tonne.

  • The representative of the Ontario Ministry of the Environment supports using the "or" condition for priority contaminants. These contaminants would have to be selected in the future.

  • Industry and government representatives do not agree with this condition. The data from the U.S. TRI show that releases below one tonne account for only a small percentage of total releases. They are concerned about how facilities can comply without assuming an unreasonable burden; this condition would require all facilities to estimate all NPRI substances they release in order to determine their need to report.

5.2.2. An "and" release reporting condition

Industry representatives have proposed that an additional reporting condition be added, namely:

C. and the release of one tonne or more of an NPRI substance per year.

Under this condition, a facility that meets conditions A and B would not have to report on NPRI substances it is releasing in quantities smaller than one tonne per year.

Industry representatives believe this condition would reduce industry's reporting burden without impairing the quality of information in the NPRI. They maintain that releases of one tonne or less are a small proportion of the total weight of all releases, so the NPRI would still approximate the quantity of substances being released.

Representatives of the environmental groups, labour, and federal and provincial governments who disagree with this condition maintain that for some facilities, particularly smaller ones, a release of one tonne is significant. Releases of this magnitude would also be of interest to the people living near such a facility.

5.2.3. Reviewing the 10-tonne reporting condition

Environmental groups and labour representatives proposed that the 10-tonne quantity in reporting condition B should be reviewed and lowered for the 1994 reporting year. They believe that releases of substances manufactured, processed or otherwise used in quantities of less than 10 tonnes per year can have a significant impact on the environment and on human health.

Industry and government agree with the rest of the Committee that the 10-tonne reporting condition should be reviewed after the results of the 1993 reporting year have been analyzed. However, they would want to examine these results before deciding whether the 10-tonne level should be decreased, increased or maintained.

5.3. ISSUES RELATED TO THE NPRI LIST OF SUBSTANCES

Committee members could not agree on a recommendation to the Minister of the Environment on the following issue related to the NPRI list of substances.
(The consensus recommendations on this issue can be found in section 4.5.)

5.3.1. Substances of special interest

The Committee believes that the NPRI's credibility will be compromised if it does not deal with substances that have high public visibility, namely: PCBs, dioxins, furans, pesticides, PAHs and ozone-depleting substances. Members could not agree, however, on which of the following two options should be followed, either:

Option (1)

  • to include these substances on the NPRI list with appropriate reporting conditions (that is, less than the current 10 tonnes); or,

Option (2)

  • to devote a section of the NPRI annual report to these substances. Using available information, a description of the substances' status would be prepared.

  • The environmental groups and labour representatives favour option 1, that is, including these substances on the NPRI list. They believe that their effects on human health and the environment justify the additional cost (for double reporting or monitoring) of adding them to the list.

  • Representatives of governments (except Ontario) and industry favour option 2, that is, devoting a section of the NPRI annual report to these substances. With data already collected for other regulations and programs, they believe it would be more efficient to re-use these same data for the NPRI. Furthermore, placing substances such as PCBs, dioxins and furans on the NPRI list would require the development of specific reporting conditions and specialized technical guidance for estimating releases.

  • The Ontario Ministry of the Environment representative supports implementing option 2 in the first year of reporting, with a view to implementing option 1 in future years after issues related to reporting conditions, duplication and technical guidance have been resolved.

5.4. ISSUES RELATED TO THE INFORMATION TO BE REPORTED

Committee members could not agree on a recommendation to the Minister of the Environment on the following issues related to the information that should be reported. (Consensus recommendations on this issue are in sections 4.7 and 4.8.)

5.4.1. Reporting quantity information

Under this requirement, facilities would report the quantity of the NPRI substance employed in each "use" category in the substance identification section of the NPRI form (please see section 4.8.1.). If appropriate, a facility could claim this information as confidential.

Collecting quantity data would serve four objectives:

  1. To determine how well the NPRI meets its goal of being a comprehensive, national inventory. This could be accomplished by comparing the total quantities of a substance manufactured and imported by reporting facilities, with the total quantity of the substance used in Canada (according to Statistics Canada data). From such an analysis, Environment Canada could estimate of the degree of compliance with the NPRI.

  2. To determine whether a change in the quantity of a substance released or transferred stems from a change in the quantity manufactured, processed or otherwise used, rather than from a change in releases and transfers. Reporting facilities are already asked to explain changes in the quantities released or transferred (please see section 4.8.5.); quantity data would shed more light on this point, particularly when increased releases or transfers are proportionally lower on a production-normalized basis.

  3. To help governments in setting priorities for their emission-reduction programs, by identifying the releases and transfers with greatest potential for reductions. All other things being equal, the larger the release's proportion of the substance manufactured, processed or otherwise used, the greater the potential for reductions.

  4. To calculate release factors (quantity released, as a proportion of the quantity used) for similar facilities. This could easily be done in the data base using SIC codes. Canadian release factors are lacking, particularly for land and water, and the availability of additional release factors could make reporting easier for industry.
  • The federal and provincial governments, labour and environmental groups believe these objectives justify collecting quantity data. They maintain that in most cases, quantity information should be readily available to reporting facilities; it will be required to estimate releases and transfers. However, these Committee members recognize industry's concern about the burden this requirement could impose on reporters. They propose further study to resolve this concern.

  • The representatives from industry are opposed to the reporting of quantity information because they believe:
    1. The NPRI should focus on establishing a comprehensive data base of releases for Canada. Each additional data, collection/reporting requirement diverts scarce and valuable resources from achieving this key objective.
    2. With very few exceptions, the quantity of a substance manufactured, processed, or otherwise used has no correlation with releases and environmental impact.
    3. The inclusion of quantities manufactured in the NPRI would support arguments that the quantity of a substance can be correlated to releases. This would lead to misplacing the priorities on environmental issues.
    4. Requiring such data to be reported would substantially increase the complexity and cost of the reporting process, out of proportion to its value. The cost is not insignificant for reporters.
    5. Detailed information on quantities, unlike data on releases, is confidential business information and would unduly complicate handling of NPRI data.
    6. One potential use for quantity information in the NPRI would be to develop "made in Canada" release factors. However, based on point 2 above, these factors would have limited validity across a broad industrial spectrum, and should be assigned a low priority.
    7. Environment Canada could correlate quantity data from NPRI reporters with existing data on the quantity of NPRI substances in Canada (from Statistics Canada). Thus they could determine the proportion of releases being captured by the NPRI. But since existing data bases for NPRI substances are incomplete, the validity of this approach is questionable. Finally, there is no reason to suspect that the existing NPRI rules (on thresholds and reporting quantities) are not appropriate.

5.4.2. The maximum quantity of the substance on-site at any time during the year

There is consensus among Committee members that the public should be aware of potentially catastrophic releases, as well as what is being done to deal with these risks. Disagreement persists, however, about the NPRI's role in achieving this objective.

  • Environmental groups and labour representatives on the Committee believe the NPRI has an important role to play in emergency planning. The purpose for requesting the maximum on-site quantity at any one time during the year is to allow citizens to evaluate for themselves the risk of a major accident occurring at a facility in their community.

    At present, there are no easily accessible data bases from which the public can find out about the risk of a catastrophic accident in their community.

    Representatives of environmental groups and labour disagree with the position of industry and government representatives that emergency planning issues should be left to other forums (please see below). Although these forums may be valuable, the information that they gather is neither complete (because industry participation is voluntary), nor is it accessible to the public.

  • The representatives of governments (except Ontario) and industry believe that collecting this information is inappropriate for the NPRI. Forums of experts and community representatives are already addressing the range of emergency planning issues on an ongoing basis. The Major Industrial Accidents Council of Canada is one example. Furthermore, the 10-tonne reporting condition will provide the concerned public with a list of facilities using NPRI substances in their community. Knowing the maximum quantity on site would add little.

  • Employee and community safety are of utmost importance to Canadian industry. To this end, industry supports emergency preparedness and participates in community response/planning activities (in Edmonton and Sarnia, for example) as well as supporting MIACC activities.

    In addition, industry representatives believe that quantifying maximum amounts of substances on site would be difficult for facilities that have many different mixtures, containing varying amounts of a particular NPRI substance. Therefore, asking for this data would additionally burden reporters for little or no added benefit.

  • The Ontario Ministry of the Environment representative has no objections to collection of this information.

5.4.3. On-site energy recovery and treatment

Facilities would be required to report the amount of a substance subjected to on-site energy recovery or treatment to determine if an emission reduction is due to these factors, or results from less waste generated on-site.

  • Representatives of the Ontario government, environmental groups and labour favour inclusion of this data element. They believe it enables the tracking of what is, in their view, pollution prevention.

  • Representatives of industry and the federal government are opposed to the inclusion of this data element. They maintain that, without a commonly accepted definition of pollution prevention, it is premature to request such data for the NPRI.

5.4.4. The production activity index

The production activity index is the ratio of the previous reporting year's production level to that of the current year. Each facility would determine its own measurement methodology in the first year, and continue to use that method in future years.

This ratio would indicate whether a change in the amount released or transferred is due to a change in the level of production.

  • Industry representatives are concerned about the difficulty of calculating a meaningful production activity index under certain circumstances, including: when a substance is used in various applications; when the way a substance is used does not have a direct relationship to production (for example, solvents for cleaning); and when a substance is used to make product A one year, and product B the next.

  • Representatives of governments (except Ontario) would prefer to have quantity information (please see section 4.5.1.), rather than a production activity index.

  • The Ontario government, environmental groups and labour favour requiring a production activity index. They believe it effectively indicates changes in production and use of NPRI substances, particularly since the quantity information will likely be confidential.

5.5. CONFIDENTIALITY

Committee members agree that facility-specific data on releases and transfers should be made publicly available. They also agree that truly confidential information should be protected, although they did not define what information could be considered "truly confidential." They did not agree, however, on whether the confidentiality regime governing the NPRI should be modified or not.

At present, any information supplied pursuant to a notice under Section 16 of CEPA (the legal basis for the NPRI), may be accompanied by the supplier's request that the information remain confidential.

Environment Canada applies the following administrative criteria to determine the validity of a confidentiality claim:

  1. The information is confidential to the company.
  2. The company has taken, and intends to continue to take, measures reasonable under the circumstances to maintain the information's confidentiality.
  3. The information is not, and has not been, reasonably obtainable by third persons by legitimate means, except with the consent of the company.
  4. The information is not available to the public.
  5. Disclosure of the information may reasonably be expected to substantially harm the competitive position of the company.
  6. Disclosing the information may reasonably be expected to result in a material financial loss to the company or a material financial gain to the company's competitors.

If one or more of the above criteria is not applicable to a particular claim, that claim would not be valid.

Requests for confidential information submitted in response to Section 16 notices are subject to the requirements of CEPA, the Access to Information Act, and the Privacy Act. Should a member of the public seek access to information claimed as confidential, he or she would have to use the mechanisms in CEPA and the Access to Information Act.

  • Environmental groups and labour believe that these confidentiality provisions are inconsistent with the NPRI objective to make release data publicly available. This could produce problems that frustrate the intent, and harm the credibility of the NPRI. For example, a facility might attempt to use confidentiality provisions to hide data on releases from the public.

    These same stakeholders would like to see the confidentiality regime that applies to the NPRI be revised to more closely resemble that of the U.S. TRI. Under the TRI, the onus for demonstrating confidentiality rests with the reporting facility. They would like the Committee to recommend that a task group be formed to design a confidentiality regime consistent with the NPRI.

  • Industry believes that experience with the NPRI will demonstrate whether the confidentiality regime will create problems. They point out that there are relatively few trade secret claims in the United States, and expect the same situation to prevail in Canada. Furthermore, they are concerned that if use or quantity information were ever collected by the NPRI, a revised confidentiality regime could deprive facilities of the protection they need for this sensitive information. In sum, the industry representatives will support modifications to the confidentiality regime governing NPRI if experience shows that the public access objectives are not being achieved.

5 The U.S. TRI does not include this information, but the states of Massachusetts and New Jersey collect it with the TRI data.

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