Bill C-28, Strengthening Environmental Protection for a Healthier Canada Act - Summary of Amendments

The following is intended to provide a plain language summary of key amendments put forward in Bill C-28, Strengthening Environmental Protection for a Healthier Canada Act. For the comprehensive and detailed list of the amendments, please refer to the Bill.

April 13, 2021

Environmental Rights

Right to a Healthy Environment under CEPA

Strengthening Chemicals Management: Existing Substances

Risk Assessment

Plan of Chemicals Management Priorities and Public Request Mechanism

Vulnerable Populations and Cumulative Effects

Public Accountability Framework (Sections 77 and 91-92)

Transparency, Participation and Accountability in Assessment and Management of Risks

Timelines for Additional Planned Risk Management

Risk Management

Watch List

Prohibiting Toxic Substances that pose the Highest Risk

Generally

The unworkable provisions for virtual elimination (VE) of toxic substances that are persistent and bioaccumulative (PBTs) will be repealed and replaced with a new regime that remains risk-based but provides that toxic substances of highest risk should be managed by giving priority to prohibition [various clauses].

The list of toxic substances in Schedule 1 will be split into two parts to implement a two-track approach for managing toxic substances under CEPA [clause 57].

Prohibiting PBTs and Toxic Substances that Pose the Highest Risk

Under the amendments, the Ministers must recommend that toxic substances of highest risk, as defined by regulations made under section 67, be added to the new Part 1 of Schedule 1 [clause 15, clause 21(1)].

When developing risk management instruments in respect of these toxic substances, the Ministers must give priority to the total, partial or conditional prohibition of activities in relation to these substances [clause 29].

In summary, the amendments provide that prohibition would be the starting point for risk management of toxic substances added to Part 1 of Schedule 1, while recognizing that, as the list of toxic substances on Part 1 grows to include toxic substances with properties or characteristics beyond persistence and bioaccumulation, more tailored approaches to managing the risks may be needed. As noted above, partial or conditional prohibitions may be more appropriate in some cases, and indeed necessary in other cases.

Supporting Powers

In support of this new priority to be given to prohibition, amendments will add a new provision to section 93 (i.e. the main regulation-making authority for toxic substances) that explicitly enables ministerial permitting regimes [clause 33(7)].

Other Toxic Substances

As noted above, for toxic substances that do not meet the regulatory persistent and bioaccumulative or inherently toxic and of “highest risk” criteria, the Ministers will continue to recommend that these other toxic substances be added to Part 2 of Schedule 1, and they will continue to be required to give priority to pollution prevention actions (which may include prohibition) when managing the risks posed by those substances [clause 21(1), clause 29].

Application

The amendments to CEPA will not affect products, such as pesticides, which are specifically regulated under other federal Acts, such as the Pest Control Products Act (PCPA). This is consistent with certain frameworks and provisions under CEPA and the best-placed act approach to chemicals management.

The amendments do not require that the Government of Canada’s Toxic Substances Management Policy (TSMP) be updated; the new proposed regime and the TSMP can stand together. Any future decision to update the TSMP would be done in consultation with the relevant departments, agencies and stakeholders in order to ensure that it is updated in a manner that accommodates the particularities posed by pesticides, for example.

Products that May Release a Toxic Substance

Best-Placed Act / Best-Placed Minister

Renaming Schedule 1

Domestic Substances List (DSL)

Power to Add In-Commerce List (ICL) Substances to the DSL

Power to Remove Substances No Longer in Commerce from the DSL

New Substances and Significant New Activities

Varying Significant New Activity (SNAc) Information

Downstream Communication of Significant New Activities (SNAc)

Amendments to the Food and Drugs Act (FDA)

Information-Gathering

Powers to Compel Information

Confidential Business Information (CBI)

Note on clause references: the references in this document are to the Bill clauses (i.e. the bolded paragraphs in the Bill). There are 69 clauses in the Bill. Each clause may modify several different provisions (e.g. sections, subsections, paragraphs) of the Act.

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