Pollution prevention plans under the Canadian Environmental Protection Act: Guidelines

Official title: Pollution prevention planning provisions of part 4 of the Canadian Environmental Protection Act, 1999: Guidelines, Third edition

Disclaimer

The guidance contained in this document should only be used for general information purposes, should not be interpreted as legal advice and may not necessarily reflect all legal requirements of the pollution prevention planning provisions under the Canadian Environmental Protection Act, 1999 (the Act). Thus, should there be any discrepancy between this document and the Act or its regulations, the Act and the regulations shall prevail.

Users of this document are required to exercise due diligence in ensuring the accuracy of the materials. For the purposes of interpreting the reliability and completeness of the information, they must consult the Department of Justice website for the most current version of the Act.

Likewise, the information is provided without warranty or condition of any nature, including its fitness for a particular purpose or the non-infringement of proprietary and other rights. Where specific legal advice is required, users should always consult their own legal counsel.

Preface

Part 4 of the Canadian Environmental Protection Act, 1999 (CEPA) gives the Minister of the Environment the authority to require the preparation and implementation of pollution prevention plans for substances specified on the List of Toxic Substances in schedule 1 of CEPA.

CEPA contains other pollution prevention planning provisions:

  • Part 7 authorizes the Minister to require pollution prevention plans in some circumstances for Canadian sources of international air and international water pollution
  • Part 9 (paragraph 209(1)(b)) authorizes the Governor in Council to make regulations respecting pollution prevention planning by federal government operations
  • Under Part 10 (paragraph 291(1)(c)), a court may direct an offender that has been convicted of an offence under the Act to prepare and implement a pollution prevention plan

While Parts 7, 9, and 10 of CEPA also contain pollution prevention planning provisions, these guidelines address pollution prevention planning under Part 4 only.

As required under section 62 of CEPA, this guidance document:

  • briefly introduces the provisions under Part 4 of CEPA
  • outlines the conditions under which pollution prevention planning is appropriate
  • specifies the requirements of pollution prevention planning notices

This is the third edition of this document. The first was originally published in 2001. These guidelines will continue to be revised as experience is gained through the use of these provisions.

1. Pollution prevention and Part 4 of the Canadian Environmental Protection Act, 1999

The Canadian Environmental Protection Act, 1999 (CEPA) defines pollution prevention (P2) 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 is a priority for the Government of Canada. As set out in section 90(1.1) of CEPA, the Minister of the Environment and the Minister of Health must give priority to pollution prevention actions when developing proposed regulations or instruments respecting preventive or control actions to manage toxic substances listed under CEPAFootnote 1.

Accordingly, Environment and Climate Change Canada (ECCC) will require P2 plans under Part 4 in order to:

  • generate action that will help effectively and efficiently manage CEPA-toxic substances and reduce overall risk to the environment and human health
  • provide an opportunity for early action (relative to regulatory measures)
  • provide opportunities to develop and implement situation-specific solutions
  • encourage pollution prevention

Summary of the P2 planning provisions

The Minister will require the preparation and implementation of P2 plans by issuing a notice under section 56 of CEPAFootnote 2. These Notices specify the persons or class of personsFootnote 3 covered by the notice; the substances or group of substances; the commercial, manufacturing, processing, or other activities covered by the Notice; the factors to consider in preparing the plan; the time limits for preparing and implementing plans; and any administrative matter.

Persons subject to a Notice are required to file two declarations under subsections 58(1) and 58(2) of CEPA:

  • Declaration that a pollution prevention plan has been prepared and is being implemented
  • Declaration that a pollution prevention plan has been implemented

The Minister may also require the filling of interim progress reports. These reports allow ECCC to monitor the progress while the person subject implements its P2 plan. The notice prescribes the content of these declarations and reports. Information provided in the declarations and in the reports should be consistent with the information contained in the P2 plan. Pursuant to subsection 58(3), if the information contained in a declaration under subsection 58(1) or (2) becomes false or misleading at any time after the filing, the person subject must file an amended declaration within 30 days. Additional information on reporting is available in section 4 of this document.

Persons who have prepared P2 plans for another purpose (e.g. because of a legal obligation or voluntarily) may be able to use those plans to satisfy some or all of the Notice requirements (section 57). However, declarations of preparation and implementation will be required.

The Minister also has the authority, under section 60 of CEPA 1999, to require that a P2 plan be submitted in whole or in part so that preventive or control actions can be assessed.

CEPA provides significant penalties for not complying with the provisions of the Act or for providing false or misleading information. Part 10 of CEPA (sections 272 and 273) describes the penalties, which include fines, imprisonment, or both.

More information on legal obligations is available on the Government of Canada web site.

2. Scope of application

P2 planning notices are one of several instruments that can be used to manage the risks to the environment and human health associated with CEPA-toxic substances. The Minister of the Environment has the authority to use a full range of instruments, from regulations through P2 planning notices, guidelines, standards, environmental performance agreements and other non-legislative initiatives.

Where it is appropriate, a P2 planning notice can be an efficient and effective risk-management instrument. Using the P2 planning provisions could minimize the need for additional regulatory or other governmental interventions.

Determining when a P2 planning notice is appropriate

A P2 planning notice is a flexible instrument. ECCC can use the notice:

  • to target and manage a single substance or many substances at once
  • to target and manage releases from an industry sector or many industry sectors at once
  • alone or in combination with other instruments (for example, a P2 planning notice could be published in conjunction with a code of practice or as a precursor to a regulation)
  • to address matters pertaining to CEPA-toxic substances in products as well as the uses and releases of these toxic substances
  • to attain early action on the part of affected persons
  • to gather information to evaluate the effectiveness of the notice and, when required, to inform future regulatory actions
  • when it is necessary to specify the person or class of persons to be subject to a notice, or the commercial, processing, or other activity in relation to which a plan is to be prepared

3. Developing a P2 planning notice

Once the Governor in Council has added a substance to schedule 1 of CEPA and a P2 planning notice is selected as the risk management instrument of choice, the Minister will publish the P2 planning notice. These notices are:

Typically, Environment and Climate Change Canada leads the development and publication of notices in cooperation with Health Canada.

Content of P2 planning Notices

Section 56(2) of CEPA states that P2 planning notices may specify:

  • the substance or group of substances in relation to which the plan is to be prepared
  • the commercial, manufacturing, processing, or other activity in relation to which the plan is to be prepared
  • the factors to consider when preparing the plan
  • the period within which the plan is to be prepared
  • the period within which the plan is to be implemented
  • any administrative matter necessary for the purposes of Part 4 of CEPA

Identifying who will prepare and implement a P2 plan

ECCC identifies the person or class of persons subject to a P2 planning notice based on the nature and circumstances of the risks associated with the CEPA-toxic substance. For example, where the environmental and human health risks associated with a substance relate primarily to industrial releases, the Minister may require P2 plans from industrial sources. Where risks relate primarily to the use of the substance as a commercial product or in products, the Minister may require plans from the producers or primary distributors of the product(s).

The P2 planning notice can identify those subject in a number of ways, including by referring to:

  • the uses and sources of a toxic substance (including commercial, manufacturing or processing) that meet the reporting thresholdFootnote 4 established for the substance
  • the uses and sources of a toxic substance (including commercial, manufacturing or processing) that sufficiently contribute to environmental or human health risks

There may be instances, however, where it will be appropriate to identify specific persons or facilities by name in the P2 planning notice.

When persons are participating in non-regulatory programs that should achieve environmental results that are equivalent to the risk management objective and timelines specified in a P2 planning notice, it may not be necessary for them to prepare and implement a P2 plan under Part 4. In such cases, the P2 planning notice would not cover these persons or classes of persons or the notice would exclude them from the obligations.

ECCC could consider the following criteria when making such a decision:

Factors to consider

All P2 planning notices will specify “factors to consider”. When developing and implementing their pollution prevention plans, persons subject to a notice must take into account the factors to be considered that are listed in the notice. The persons subject will also have to report on what they have done to take into account these factors in the declarations. Section 4 provides more information on declarations and reporting.

Risk management objective

Factors to consider will include, among other things, the risk management objective (i.e., the desired environmental aim, goal, or outcome relevant to the reduction of the risks to the environment and human health from a toxic substance).  In most cases, the objective will be based on the risk assessment undertaken for the substance, and it may take a variety of forms, depending on the circumstances. The risk management objective may range from specific performance standardsFootnote 6 to a more general objective related to life-cycle management of toxic substances.

Other examples of factors to consider that may be referenced in a P2 planning notice include:

  • the environmental and human health risks associated with specific toxic substances
  • technologies or pollution prevention practices that are currently available
  • other risk management measures planned for the toxic substance(s) in question

Waiving factors to consider

Subsection 56(5) of CEPA authorizes the Minister to waive the requirement to consider a factor specified under paragraph 56(2)(c). If you cannot consider a factor to consider because it is unreasonable or impractical, persons subject must submit a Request for waiver of the requirement to consider a factor (schedule 2 of the notice). The request must be made before the deadline to prepare the P2 plan as specified in the Notice and must identify the factor(s) that require the waiver and a rationale.

ECCC evaluates the request on a case-by-case basis. A waiver will be granted only if the Minister is of the opinion that it is not reasonable or practicable for the factor(s) to be considered in the preparation of a P2 plan. ECCC will provide a formal response granting or denying the request in writing.

Consulting and commenting on the Notice

ECCC collaborates with various stakeholders to develop a notice. They include:

  • owner(s) of facilities
  • industry associations
  • indigenous peoples
  • environmental non-governmental organizations
  • general public

In most cases, a consultation document is developed and contains the general parameters of the P2 planning notice. It is made available for 60-days to stakeholders for feedback. During this consultation process, stakeholders may participate in the determination of who should be required to prepare and implement P2 plans, appropriate factors to consider in the preparation of such plans, and the time allocated for the preparation and implementation of the plans.

After the feedback is received, the consultation document is updated and published in Part I of the Canada Gazette as a proposed notice to allow for another 60-day comment period. Stakeholders can use this period to provide written comments on the content of the Proposed Notice. The Minister will then take into consideration the comments received when drafting the final notice.

4. P2 planning requirements

Time period for preparing and implementing P2 plans

The P2 planning notice will specify the time for preparing the plan. Usually, the final notice in the Canada Gazette, Part I will specify at least 6 to 12 months following the publication for the preparation of P2 plans. Consult the notice in question to determine the preparation period.

The notice will also specify the time period for implementing the plan. Since the length of time provided varies, consult the notice in question to determine the implementation period.

Request for time extension

If persons subject to a P2 planning notice need more time to prepare or implement the P2 plan, including reaching the risk management objective, they can request a time extension. Subsection 56(3) of CEPA authorizes the Minister to extend the preparation or implementation period if the Minister is of the opinion that further time is necessary. Persons subject must submit a Request for time extension (schedule 3 of the notice) before the deadline specified in the notice. The request must indicate the length of the extension as well as a rationale.

ECCC evaluates the number and length of extension periods on a case-by-case basis. The Minister may grant an extension if the information presented in the request provides sufficient information to conclude that an extension of time is necessary.  ECCC will provide a formal response granting or denying the request in writing.

If a time extension is granted, the details of the decision will be made available to the public in Part I of the Canada Gazette. The published details include:

  • the name of the person to whom the extension has been granted
  • the new deadline
  • whether the extension is for the preparation of the plan or for the implementation of the plan

If a time extension is not granted, details of the Request for time extension will not be published.

Content of P2 plans

P2 planning notices will not prescribe the content of P2 plans. Persons subject can prepare a plan in the form that makes the most sense for the facility, as long as the plan:

  • addresses the factors to consider identified in the notice
  • complies with the timelines identified in the notice
  • contains or generates the information required to complete the Declaration that a pollution prevention plan has been prepared and is being implemented, the Declaration that a pollution prevention plan has been implemented, and any interim progress reports

Although each plan is unique, P2 plans should contain the following elements:

  • a senior-level sign-off
  • the designation of an accountable senior manager responsible for the plan
  • a clear statement of the risk management (and other) objectives for the plan
  • a schedule for meeting those objectives
  • a review of all significant aspects of the management of the substance (including purchasing, processing, producing, generating, distributing, treating, disposing, storing, or releasing the substance)
  • an identification, review, and selection of options
  • a plan and schedule for implementing the selected options
  • a plan for measuring, tracking, and evaluating the success of the selected options and for implementing corrective and preventive measures
  • a plan for reporting on progress toward the plan’s objectives
  • a continual improvement program

Consult the following webpage for more guidance on how to develop and implement pollution prevention plans: Create and implement your pollution prevention plan.

Plans prepared or implemented for another purpose

P2 plans prepared for another purpose (e.g., to meet provincial requirements or voluntarily) may be used to satisfy the requirements of a P2 planning notice under CEPA (section 57). Where a plan prepared or implemented for another purpose does not address all of the requirements of the notice, the person can amend the plan or prepare a new one, as appropriate. It is the responsibility of the persons identified in the notice to determine if their plan meets the requirements of the particular notice.

Persons or classes of persons identified in a P2 planning notice who wish to use a plan prepared for another purpose must still file both section 58 declarations and all interim progress reports, if required within the timelines specified in the notice.

5. Accountability

Filing declarations and interim progress reports

Declarations of preparation and implementation

Pursuant to sections 58(1) and 58(2) of CEPA, persons subject to a P2 planning notice must complete two types of declarations:

  • Declaration that a pollution prevention plan has been prepared and is being implemented (schedule 1 of the notice)
  • Declaration that a pollution prevention plan has been implemented (schedule 5 of the notice)

The purpose of schedule 1 is to inform the Minister that persons subject have prepared and are implementing a P2 plan in accordance with the notice, and to report on the anticipated actions and results. The purpose of schedule 5 is to inform the Minister that persons subject have implemented their plan in accordance with the requirements set out in the notice, and to report on results achieved.

Interim progress reports

In some cases, the notice may require the submission of interim progress reports (schedule 4 of the notice) on a regular basis (e.g. each year) under paragraph 56(2)(f) of CEPA. The purpose of these reports is to inform the Minister about the progress made in the implementation of the P2 plan.

Interim progress reports may be required for notices when:

  • a long period of time is granted for the implementation of P2 plans
  • there is no information being collected through the National Pollutant Release Inventory (NPRI)

However, if a schedule 5 is submitted before the interim progress report is due, the report does not need to be submitted.

Content of schedules

Each P2 planning notice will outline the required information and format of the declarations and interim progress reports in schedules 1, 4 and 5. Although the required information may differ from notice to notice, in most cases, a completed declaration/report will describe:

  • basic information on the person or class of persons subject to the notice (facility name, facility technical contact, etc.)
  • environmental baseline information (a description of current use, distribution, and releases against which future results can be compared)
  • the type of the pollution prevention methods chosen
  • the anticipated or achieved results of implementing the plan (as compared to the P2 planning notice objectives)
  • when the results will be or were attained
  • the monitoring and reporting methods
  • how the plan meets or will meet the risk management objective
  • what was or will be done to take into account the factors to consider

An authorized officialFootnote 7 must sign each declaration.

ECCC reviews the declarations and reports to ensure that they contain the information specified by the Minister under section 58(4) of CEPA. As well, ECCC evaluates the extent to which P2 plans are contributing to the achievement of the relevant risk management objective to reduce risks to the environment and human health from toxic substances listed under the Act.

Online reporting

Declarations, Requests for waiver of the requirement to consider a factor, Requests for time extension and interim progress reports should be submitted via ECCC’s Single Window online reporting tool. Reporters can obtain guidance on how to use the reporting tool.

Correction of information

According to section 58(3) of CEPA, if any of the information contained in any of these declarations becomes false or misleading, persons subject must submit an amended declaration within 30 days. The act provides significant penalties for not complying with the provisions of the act or for providing false or misleading information. Part 10 of the act (sections 272 and 273) describes these penalties, which include fines, imprisonment or both.

The Pollution prevention planning notices and your legal obligations webpage provides more details on the declarations, interim progress reports, and the requirements to follow if subject to a notice.

Submitting P2 plans under section 60 of CEPA

Although persons subject to a P2 Ppanning notice do not typically need to submit the P2 plan, subsection 60(1) of CEPA authorizes the Minister to require the submission in whole or in part of a P2 plan for the purposes of determining and assessing preventive or control actions. For instance, the Minister may invoke this authority in cases where:

  • an analysis of declarations or interim progress reports indicates that the risk management objective will not be achieved and further risk management measures may be necessary
  • the Minister is of the opinion that the content of the declarations, interim progress reports, or P2 plans may contain false or misleading information

Requests by enforcement officers or analysts for plans

Section 59 of CEPA requires that persons keep a copy of their P2 plan at the location where the plan has been prepared. These plans should be easily identifiable and accessible, and they should refer to the specific P2 planning notice for which they were prepared.

Enforcement officers, or analysts who accompany enforcement officers, may request access to these plans, under subsection 227(b) of CEPA, in order to confirm that the plans have been prepared and are being implemented in accordance with the declarations and reports that have been filed under the notice. Enforcement officers, under section 218 of CEPA, may conduct an inspection when there are reasonable grounds to believe that the facility is subject to a P2 planning notice under CEPA.

6. Public access to P2 planning notices, declarations and interim progress reports

Publication of information

All P2 planning notices are published in the Canada Gazette, on the CEPA environmental registry and the pollution prevention planning website.

ECCC makes all the information it receives in completed declarations (i.e. schedules 1 and 5) and interim progress reports (i.e. schedule 4) publically available except for the contact information and information deemed confidential in accordance with CEPA and the Access to Information Act and Privacy Protection Act:

Requests for waiver of the requirement to consider a factor (i.e. schedule 2) and Requests for time extensions (i.e. schedule 3) are not publically available. However, if a person is granted a time extension, the name of the person, as well as the new date to prepare or to implement the plan will be published in the Canada Gazette Part I, in accordance with Section 56(4) of CEPA.

Note that the Minister will not post online any plans submitted under Section 60. However, any information submitted under Section 60 is subject to requests for public disclosure under the Access to Information Act.

Requesting confidentiality

Persons subject to a P2 planning notice may request, under section 313 of CEPA, for the information they submit to be treated as confidential at the same time they complete the online reporting form. They must request confidentiality for the applicable sections of each schedule and amendment they submit and provide a justification for each part that requires confidentiality. ECCC evaluates each request on a case-by-case basis and notifies the person in question of the decision in writing.  

The government reviews all requests for confidentiality under the provisions of sections 315 to 321 of CEPA and section 20 of the Access to Information Act. The following excerpt from the Access to Information Act provides guidance as to the type of third-party information that might be considered confidential business information:

20(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this act that contains:

a) trade secrets of a third party;

b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or

d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party

Note that sections 315 to 321 of CEPA authorize the Minister of the Environment to release information covered by section 20(1) of the Access to Information Act in some circumstances.

7. Effectiveness of P2 planning notices

ECCC assesses the information gathered in the declarations and reports, and in some cases the actual plans. ECCC uses the information gathered prior to, during, and after implementation of the P2 plans to determine whether the notice has prevented or reduced the risks posed by the substance(s). If there are still outstanding risks, or if P2 planning has not achieved the risk management objective, ECCC might consider using other instruments, such as regulations, to protect the health of humans and the environment.

Performance results

Individual P2 planning notice performance summaries or reports are accessible online. Select the appropriate notice on this web page: List of pollution prevention planning notices and their performance.

For information on how notices have performed as a risk management instrument, consult the Effectiveness of pollution prevention planning notices report.

8. Conclusion

The pollution prevention planning provisions of the Canadian Environmental Protection Act, 1999 provide authority for the Minister of the Environment to use a flexible instrument for the management of CEPA-toxic substances. It is expected that this instrument will continue to contribute to the reduction of risks to the environment and human health associated with toxic substances and promote the improvement of overall environmental performance and awareness in Canada.

9. Other resources

Contact us

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Environment and Climate Change Canada
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Telephone: 1-844-580-3637
Email: ec.planp2-p2plan.ec@canada.ca

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