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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, fourth edition

Pollution prevention planning provisions of Part 4 of the Canadian Environmental Protection Act, 1999. [PDF - 221 KB]

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). 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:

CEPA contains other pollution prevention planning provisions:

While Parts 7, 9, and 10 of CEPA contain pollution prevention planning provisions, these guidelines address pollution prevention planning under Part 4, and only for substances specified on the list of toxic substances in Schedule 1 of CEPA or products that contain or may release such a substance into the environment.

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

The CEPA was modernized on June 13, 2023 through the Strengthening Environmental Protection for a Healthier Canada Act. The guidelines reflect these latest changes to Part 4:

This is the fourth 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 Schedule 1 CEPAFootnote 1.

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

Summary of the P2 planning provisions

The Minister of the Environment can require the preparation and implementation of P2 plans by issuing a notice under section 56 of CEPAFootnote 2. These P2 notice specifies:

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

The Minister may also require the filling of progress reports under subsection 56(6). 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 P2 notice requirements (section 57 of CEPA). However, declarations of preparation and implementation will be required, and as applicable, progress report(s).

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 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 notices, codes of practice, guidelines, standards, Environmental Performance Agreements and other non-legislative initiatives.

Where it is appropriate, a P2 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.

Subsection 56(1) of CEPA gives the Minister of the Environment the authority to require the preparation and implementation of pollution prevention plans for:

  1. substance or group of substances specified on the list of toxic substances in Schedule 1 of CEPA
  2. substance or group of substances with respect to which subsection 166(1) or 176(1) of CEPA applies (i.e. Canadian sources of international air and international water pollution); or
  3. product that contains a substance specified on the list of toxic substances in Schedule 1 or that may release such a substance into the environment

Note that these guidelines address pollution prevention planning for substances specified on the list of toxic substances in Schedule 1 of CEPA or products that contain or may release such a substance into the environment (paragraphs 56(1)(a) and (c)).

Determining when a P2 notice is appropriate

A P2 notice is a flexible instrument that can be used:

3. Developing a P2 notice

Once a substance has been added to Schedule 1 of CEPA and that a P2 notice is selected as the risk management instrument of choice, the Minister of the Environment can publish a P2 notice. These notices are:

Environment and Climate Change Canada leads the development and publication of P2 notices, in cooperation with Health Canada where relevant.

Content of P2 notices

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

Under subsection 56(1.1), the notice may include a requirement that the plan prioritize the identification, development or use of safer or more sustainable alternatives to the substance, group of substances or product.

Identifying who will prepare and implement a P2 plan

ECCC identifies the person or class of persons subject to a P2 notice based on the nature and circumstances of the risks associated with the CEPA-toxic substance(s) or product(s). 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 notice can identify those subject to the notice in a number of ways, including by referring to:

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

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

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

Factors to consider

All P2 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. The persons subject will also have to report on what they have done to take these factors into account in the declarations and, when applicable, in the progress reports. Section 5 of this document 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 outcome relevant to the reduction of the risks to the environment and human health from a CEPA-toxic substance). In most cases, the objective will be based on the risk assessment undertaken for the substance(s), 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 notice include:

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 waiver requests 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.

To increase transparency in how CEPA is administered, the details of the decision to grant the waiver will be made available to the public on the Pollution prevention plans web page in the CEPA Environmental Registry. The published details include:

If a waiver request is not granted, details of the request will not be published.

Consulting and commenting on the notice

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

In most cases, a consultation document is developed and contains the general parameters of the P2 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 notice requirements

Time period for preparing and implementing P2 plans

The P2 notice will specify the deadline 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. The notice will also specify the time period for implementing the plan. Since the length of time provided varies, consult a specific notice to determine the preparation and implementation period.

Request for time extension

If persons subject to a P2 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 for a specific person 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 requested 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.

To increase transparency in how CEPA is administered, the details of the decision to grant a time extension will be made available to the public on the List of granted time extensions in the CEPA Environmental Registry. The published details include:

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

Content of P2 plans

A P2 notice does not prescribe the content of P2 plans. Persons subject can prepare a plan in the form that makes the most sense for the company or facility, as long as the plan:

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

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

Section 57 of CEPA allows persons subject to a P2 notice to use P2 plans prepared for another purpose (e.g., to meet provincial requirements or those prepared voluntarily) to satisfy the requirements of the notice. Where an existing P2 plan does not address all the requirements of the P2 notice, the person can amend the plan or prepare a new one, as appropriate. It is the responsibility of the person subject to the P2 notice to determine if their plan meets the requirements of the particular notice.

Note that persons subject who wish to use a plan prepared for another purpose must still file, within the timelines specified in the notice, two section 58 declarations and subsection 56(6) progress reports (when required).

5. Accountability

Filing declarations and progress reports

Declarations of preparation and implementation

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

The purpose of schedule 1 of the notice is to inform the Minister that persons subject have prepared and started the implementation of 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 finished implementing their plan in accordance with the requirements set out in the notice, and to report on results achieved.

Progress reports

In some cases, the notice may require the submission of progress reports (Schedule 4 of the notice) on a regular basis (e.g. each year) under subsection 56(6) of CEPA. The purpose of these reports is to inform the Minister about the progress made in the implementation of the P2 plan.

Progress reports may be required for notices when:

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

Content of schedules

Each P2 notice will outline the required information and format of the declarations and 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:

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 subsection 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 CEPA-toxic substances listed under the Act.

Online reporting

Declarations, requests for a waiver of the requirement to consider a factor, requests for time extension and 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 subsection 58(3) of CEPA, if any of the information contained in any of these submissions 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, 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 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 in respect of a substance, group of substances or product. For instance, the Minister may invoke this authority in cases where:

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 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 notice under CEPA.

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

Publication of information

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

ECCC makes all the information it receives in completed declarations (i.e. Schedules 1 and 5) and progress reports (i.e. Schedule 4) publicly available except for the contact information and any confidential information for which a request under subsection 313(1) of the Act has been made:

Requests for a waiver of the requirement to consider a factor (i.e. Schedule 2 submissions) and Requests for time extensions (i.e. Schedule 3 submissions) are not made publicly 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 CEPA registry, in accordance with subsection 56(4) of CEPA. Relevant information will also be published on the CEPA registry when a person is granted a waiver to consider a factor, including the name of the person, the factor for which a waiver was granted and the rationale.

Note that the Minister will not publish any plans submitted under section 60. However, any information submitted under section 60 is subject to requests made under the Access to Information Act.

Requesting confidentiality

Persons subject to a P2 notice may request, under section 313 of CEPA, that the information they submit be treated as confidential, which can be done when completing the online reporting form. They must request confidentiality for the applicable sections of each schedule and amendment they submit and provide a written justification. The justification must take into account the criteria set out in paragraphs 313(3)(a) to (d) of CEPA for each element for which they are requesting confidentiality. The criteria are the following:

  1. trade secrets of a third party
  2. 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
  3. 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
  4. information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party

Requests for confidentiality will be subject to review in accordance with subsection 313(3) and a formal response will be provided in writing. Note that sections 315 to 317.2 and section 320 of CEPA authorize the Minister of the Environment to release information deemed confidential in some circumstances.

7. Effectiveness of P2 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) or products. 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 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 risk 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

Regulatory Innovation and Management Systems
Environment and Climate Change Canada
351 St-Joseph Boulevard
Gatineau QC  K1A 0H3

Email: planp2-p2plan@ec.gc.ca

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