A Guide to the Canadian Environmental Protection Act, 1999 - ARCHIVED
Part 5: Controlling Toxic Substances (Sections 64 - 103)
These sections provide authority to assess
substances to determine if they are toxic, and
to manage them to prevent pollution that could
harm the environment or human health.
Definition of "Toxic" (Section 64)
To be determined toxic under CEPA 1999,
substances must enter the environment in amounts
that have or may have an immediate or long-term
harmful effect on the environment or human
health. The Act takes a risk-based approach to
decision-making that takes into account the entry
of substances into the environment, exposure
conditions and inherent toxicity.
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Substance Assessment - Existing Substances (Sections 66 - 79)
The Minister is required to maintain the
Domestic Substances List, a list of the
approximately 23,000 substances currently in use
in Canada. This List allows for a distinction to be
made between existing substances and those that
are new to Canada. Substances on the Domestic
Substances List will be assessed under one of the
three following tracks (see Figure A):
Figure A:
Click the image to view full size version.
1. Priority Substances (Section 76)
- under CEPA 1988, 44 substances were assessed under the first Priority Substances List (PSL) and 25 are being assessed under the second PSL.
- Ministers have five years to complete PSL assessments.
2. Categorization of the Domestic Substances List (Section 73)
- Within seven years of Royal Assent3, all
23,000 substances must be categorized for
their potential for exposure to Canadians, or
for their inherent toxicity and persistence or
bioaccumulation. "Pesistence" means that a
substance takes a long time to break down.
"Bioaccumulation" means that a substance
collects in the tissue of living organisms.
- Substances of concern will undergo a further
"screening" assessment to determine toxicity
and, if required, a more comprehensive PSL
assessment.
3. Review Decisions of other OECD countries, Canadian Provinces and Territories (Section 75)
- The Ministers are obliged to review these
decisions to ban or substantially restrict
substances for environmental or health
reasons to determine if they are toxic within
the Canadian context.
- If the substance is of concern , but there
is insufficient evidence to declare it toxic,
it can be placed on the PSL for further
assessment.
Sections 68, 70 and 71 provide
authority to gather information to assess whether a
substance is toxic. This includes the authority to
require sampling, testing and the generation of
new data.
Following an assessment, Ministers must
propose one of the three following measures:
- take no further action;
- add the substance to the Priority Substances List
unless it is already on the List; or
- recommend that the substance be added to
the List of Toxic Substances and, where
applicable, propose it for virtual elimination.
All proposals will undergo a 60-day public
comment period where interested parties may bring
forward additional scientific evidence to support or
refute the Ministers' decision. After taking into
account any information provided during this 60-day
period, Ministers are required to publish their final
decision. If option 3 (above) is chosen the Ministers
may, at the same time, make a recommendation to
the Governor in Council that the substance be added
to the List of Toxic Substances. If a substance has
been declared toxic and the Ministers have declared
their intention to recommend adding the substance to
the List of Toxic Substances, the Ministers must, at
the same time, recommend that the Governor in
Council add it to the List.
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Substance Assessment - New Substances (Sections 80 - 89)
Substances that are not on the Domestic Substances
List are considered to be new substances. These
cannot be manufactured or imported until:
- the Minister has been notified;
- relevant information needed for an assessment
has been provided by the applicant;
- the prescribed fee has been paid; and
- the period for assessing the information (ashset
out in regulations) has expired.
In certain circumstances, manufacturers
and importers must also report "significant new
activities" involving already approved substances
so that they can be re-evaluated.
The Minister has the ability to waive some
or all of the information requirements for new
substances or significant new activities involving a
substance if:
- such information is not needed to assess a substance;
- the substance can be contained in a way that protects the environment and human health; or
- it is not practical or feasible to obtain the test data.
This is intended to prevent the
unnecessary gathering of information.
These waivers do not remove the Ministers'
responsibility to determine that a new substance
is safe. All waivers must be published in the
Canada Gazette and the Environmental Registry.
The requirements for notification and
assessment in CEPA 1999 do not apply if the new
substance is manufactured or imported for a use
that is regulated under another Act of Parliament
that requires notice and assessment. The Governor
in Council is responsible for determining that
another Act meets these requirements and for
placing it on Schedule 2 of CEPA 1999. Proposals
to schedule an Act must undergo a 60-day public
comment period.
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Management of Toxic Substances
The 1995 federal Toxic Substances Management
Policy sets out two tracks for the management of
toxic substances: virtual elimination and life-cycle
management (see Figure B).
Figure B: Incorporation of Key Elements of the Toxic Substances Management Policy
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Virtual Elimination
Experience has shown that even extremely small
releases of certain substances (such as PCBs and
DDT) to the environment can create problems
that are extremely costly or impossible to correct.
This is particularly true of substances that are:
- toxic as defined under CEPA;
- primarily the result of human activity;
- persistent - take a long time to break down;
and
- bioaccumulative - collect in living organisms
and end up in the food chain.
Under CEPA 1999 the Ministers must
propose virtual elimination for substances
that meet these criteria. Regulations under
Section 73 set out the criteria for persistence
and bioaccumulation.
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Virtual Elimination Definition (Section 65)
- Section 65(1) defines virtual elimination as
the release of a substance to the environment
below the level of quantification (LOQ);
- the LOQ is defined in Section 65.1 as the
lowest concentration of a substance that can
be accurately measured using sensitive but
routinely available measurement technology;
- Section 65(2) requires the Ministers of the
Environment and Health to specify the LOQ
for each substance on the Virtual Elimination
List (this is not a regulatory release limit);
- Section 65(3) requires consideration of
environmental or health risks and relevant
social, economic and technical matters before
the Ministers of the Environment and Health
set enforceable release limits.
In other words, the ultimate objective
of virtual elimination is to reduce releases to
the point where they can no longer be measured.
At the same time, there may be relevant social,
economic or technical factors that make it
impossible to reach virtual elimination
immediately. In these instances, the Ministers
can set a release limit above the level of
quantification, or set out a phased approach with
ever-decreasing limits until the LOQ is reached.
CEPA 1999 provides the regulatory
authority to achieve both the virtual elimination
of a substance and life-cycle management to
minimize releases to the environment. In the case
of virtual elimination, companies will be required
to prepare "virtual elimination plans" to achieve
the regulatory release limit set under subsection
65(3).
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Preventive or Control Measures (Sections 90 - 93)
Manufacture and import of new substances
found to be toxic can be prohibited or subjected
to conditions specified by the Ministers.
After two years, the Governor in Council must
publish a notice of proposed regulations for
these substances.
For existing substances (such as those on
the Domestic Substances List) found to be toxic,
the Minister of the Environment has two years to
develop preventive or control measures. These
measures can include voluntary arrangements,
economic instruments, and requirements for
pollution prevention planning or regulations. Once
proposed, the Minister has a further 18 months to
finalize the measures. Regulations are made by
the Governor in Council on the recommendation
of both Ministers.
The National Advisory Committee must
be provided with an opportunity to provide advice
on any proposed regulations made under section
93. Proposed regulations also undergo a 60-day
public comment period.
CEPA 1999 cannot be used to regulate
an aspect of a substance that is regulated under
another Act in a manner that provides, in the
opinion of the Governor-in-Council, sufficient
protection to the environment and human health.
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Interim Orders (Section 94)
CEPA 1999 authorizes the Minister to issue
"interim orders" on a substance when immediate
action is needed to deal with a significant danger
to the environment or human health. An interim
order has the same legal force as a regulation
made under section 93.
When making an interim order, the
Minister must consult all affected provincial,
territorial and aboriginal governments within
24 hours to determine if they are prepared to
take sufficient action to deal with the significant
danger. The Minister must also consult with other
federal ministers to determine if any action can
be taken under any other Act of Parliament. An
interim order ceases to be in force unless it is
approved by the Governor in Council within
14 days. Interim orders can remain in force for
two years, but within 90 days the Ministers must
publish in the Canada Gazette their intention
to recommend regulations to deal with the
substance.
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Release of Toxic Substances (Sections 95 - 99)
Individuals are obliged to report any releases
of toxic substances that contravene a regulation.
Whistleblower protection is available to any
employee who makes a voluntary report of a
release.
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Export of Substances (Sections 100 - 103)
These sections provide authority to control the
export of substances regulated under CEPA 1999
or another Act of Parliament. Substances fall into
three categories:
- Prohibited substances;
- Substances whose export is subject to an
international agreement that requires the
notification or consent of the receiving
country; and
- Restricted substances.
Prohibited substances can be exported
only if they are to be destroyed. The Governor
in Council may make regulations for all three
categories of substances, including:
- prohibitions on export;
- the type of information to be provided to
the Minister;
- the type of information to accompany an
export; and
- conditions under which an export may
be made.
Details concerning these exports must be
published in the Environmental Registry. These
provisions allow Canada to meet its commitments
under the Convention on the Prior Informed
Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade.
3 CEPA 1999 received Royal Assent on September 14, 1999
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