Notice of Objection filed by the Canadian Trucking Alliance.
Canadian Trucking Alliance
555 Dixon Road
Toronto, ON
BY FAX 819-953-0279
July 12, 2000
Roy Brooke
Senior Policy Advisor
Office of the Minister of the Environment
Les Terrasses de la Chaudière
10 Wellington Street, 28th Floor
Hull, Quebec
K1A 0H3
Dear Mr. Brooke:
RE: Legal implications of Listing Particulate matter as a Toxic Substance
under the CEPA, 1999
I would like to again thank you and Ms. Bjorkquist for meeting with us on
July 10th to discuss various issues relating to trucking and the environment.
As promised, we will be sending you a briefing note regarding the land freight
marketplace.
The purpose of this letter is to share with you information
CTA has received regarding potential legal implications arising out of the
proposed listing of PM emissions as toxic under the Canadian Environmental
Protection Act, 1999 (CEPA). The information, contained in a letter (see
attached) to CTA from the legal firm, Gowlings, appears to confirm some
of our initial fears raised at our meeting. Gowlings states, "that the
listing of a substance as toxic may have significant and far-reaching implications
for those who emit the substance into the environment."
At the July 10th meeting, we raised concerns over increased liability on the part of
motor carriers resulting from the listing of PM10 as a toxic substance.
According to Gowlings, "those who emit PM10 will face heightened exposure
to civil actions if it is listed as a Toxic Substance..." Moreover,
Gowlings warns that "there is a line of jurisprudence which has found
that compliance with a regulatory standard does not necessarily afford a
defence" to a civil action.
In addition, Gowlings identifies three other categories of concern:
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Limitations on Emission by Regulation - Once a
substance is added to the list regulations can be promulgated respecting
such things as the quantity and concentration of the substance that can
be released from any source; places or areas it may be released; the activity
in which it mat be released; the manner and conditions of release; maintenance
of records; conduct of sampling, analysis, tests, etc.; a pollution prevention
plan; and, potentially, measures to eliminate the substance.
-
Quasi-Criminality of Breach of the Regulations - A contravention of CEPA 1999 and its regulations
is an offence and convictions are subject to significant fines and/or possible
imprisonment for officers, directors or agents of a corporation.
-
CEPA 1999 Special Remedies - CEPA 1999 provides for a new class of citizen action
to compel compliance with legislation or regulation. It also provides that
any person harmed by a contravention of the act or regulations may bring
action against the offending party for compensation, without proof of negligence
or the elements required to establish any other common law tort.
It did not appear to us from our meeting that these matters had been fully considered.
Now that we are in receipt of the Gowlings' letter, our concerns are only
elevated. It is essential that the proposal to list PM10 be fully and completed
evaluated from many perspectives. Moreover, given the above information,
it is absolutely imperative that the PM Assessment Report be subject to
a peer review by an independent body like the Scientific Advisory Board
to the U.S. EPA. As discussed at our meeting, we have trouble reconciling
Environment Canada's view that based on all scientific evidence the listing
of all PM emissions is completely justified, while others, including the
Scientific Advisory Board of the US EPA and the Health Effects Institute,
have not yet come to the same conclusion. In fact, Environment Canada's
own March 2000 report, The State of Heavy Duty Vehicle Emission inspection
and Maintenance in Canada and the United States, captures the scientific
ambivalence between PM emissions and human health. The report states, "some
components of diesel PM are known to be carcinogenic, though the relationship
between diesel PM and human health is still poorly understood."
CTA will be expressing these above concerns formally in its written response to the
proposed regulation contained in the June 10 Canada Gazette 1. However,
we think it important that the minister and his staff also consider these
issues. We would greatly appreciate it if we could maintain a dialogue on
this matter. Thanks in advance.
Sincerely,
David H. Bradley
Chief Executive Officer
Canadian Trucking Alliance
555 Dixon Road
Toronto, ON
August 8, 2000
Danie Dube
Acting Chief
Chemicals Evaluation Branch
Department of the Environment
Hull, Quebec
K1A OH3
|
Arthur Sheffield
Team Leader
Regulatory and Economic Analysis Branch
Department of the Environment
Hull, Quebec
K1A OH3
|
Re: Canada Gazette Part 1, June 10 2000. Order Adding Toxic Substances to
Schedule 1 to the Canadian Environmental Protection Act, 1999
Dear Ms. Dube/Mr. Sheffield:
The Canadian Trucking Alliance (CTA) is very concerned
over Environment Canada's regulatory proposal to add particulate matter
of less than 10 microns (PM 10) to the list of toxic substances under the
Canadian Environmental Protection Act (CEPA).
The Canada Gazette states
"Scientists have concluded that the current state of scientific knowledge,
there is ample evidence that Particulate Matter (PM) causes serious human
health impacts, and its declaration as toxic is completely justified."
This statement is both misleading and incorrect. While there is evidence
that suggests a connection between certain levels of PM 10 and negative
health impacts, there is also conflicting scientific evidence that raises
questions regarding the direct relationship between PM 10 and negative health
impacts. To state that the listing of PM 10 as toxic is "completely justified"
is, in CTA's opinion, incorrect and unsubstantiated.
According to scientific research conducted by the Health Effects Institute (HEI) and the Scientific
Advisory Board (SAB) of the US Environmental Protection Agency (EPA) there
is evidence that the labeling of all PM emissions as toxic is premature.
Furthermore, we attach a peer review of Environment Canada's Assessment
Report for PM10, conducted for CTA by the environmental toxicology and risk
assessment experts, GlobalTox. This peer review supports CTA's belief that
the labeling of all PM emissions as toxic is premature.
Moreover, CTA also
obtained the attached legal advisory from Gowlings regarding the possible
legal ramifications of listing PM10 as toxic. The possibility of class action
lawsuits brought against producers of PM10 due to Environment Canada's listing
of PM10 will be heightened. Moreover, by listing PM10 as toxic Environment
Canada may lose control as a regulator regarding "floor and ceiling" emission
policy control measures. The courts may assume this policy role. The trucking
industry does not believe this to be a wise shift in regulatory control
from elected officials to appointed justices.
Based on the above, CTA urges
Environment Canada to not list PM emissions as toxic under CEPA. Based on
the scientific evidence to date, the listing of PM10 as toxic is at best
premature. Moreover, it does not appear that Environment Canada has fully
contemplated the legal implications of such a move. To carry forward regardless
would be reckless on the part of Environment Canada.
The remainder of this
document will be broken into four parts. The first part will provide a-synopsis
of the scientific findings of HEI and the SAB regarding PM 10. The second
part will provide a summary of GlobalTox's peer review of Environment/Health
Canada's Assessment of Respirable Particulate Matter Less Than or equal
to Ten Microns (PM10) under CEPA. The third part of the document will review
Gowlings' legal advice concerning the possible implications of listing PM
10 as toxic. The final portion of this submission will examine what the
trucking industry and rail industry is and will be doing to reduce PM10
emissions.
Part I: Synopsis of HEI & SAB Findings Regarding PM 10
Who is HEI? - HEI was established in 1980 as an independent and unbiased
source of information on the health effects of motor vehicle emissions.
HEI supports research on all major air pollutants. Consistent with its mission
to serve as an independent source of information on the health effects of
motor vehicle and other pollutants, the Institute also engages in special
review and evaluation activities. Typically, HEI receives half its funds
from the U.S. EPA and half from 28 manufactures and marketers of motor vehicles
and engines in the United States. However, HEI exercises complete autonomy
in setting its research priorities, conducting evaluation and in disbursing
its funds.
-
HEI Study: Diesel Exhaust: A Critical Analysis of Emissions, Exposure and Health Effects A
Special Report by the Health Effects Institute, October 1997
In this work HEI conducted a full literature review of over 30 epidemiologic studies of workers exposed to
diesel emissions in occupational settings for the period 1950 through the early 1980s. HEI concluded: "The
epidemiologic data are consistent in showing weak associations between exposure to diesel exhaust and
lung cancer." Furthermore, HEI concluded that using this data to estimate the magnitude of the cancer risk
is limited because: (1) No epidemiologic study has included quantitative measurements of past exposures of
the study subjects. HEI did concur with previous findings regarding the carcinogenic activity in rats exposed
to diesel emissions. However, HEI suggests that the lung tumours observed in rats exposed to high
concentrations of diesel emissions may be due to a species-specific response to inhaled particulate matter
rather than a carcinogenic mechanism that also occurs in humans. This hypothesis is based on tests that
showed that prolonged exposure to diesel emissions does not produce long tumours in hamsters, and the
results in mice are equivocal, which suggests that species-specific factors play a critical role in the induction
of lung tumours by diesel emissions. Furthermore, regarding impacts on rats, HEI found that lung tumours
are only produced after nearly lifetime exposures for 35 hours or more per week to high concentrations of
diesel exhaust particulate matter. These concentrations are approximately three orders of magnitude higher
than current estimates of average atmospheric concentrations of diesel exhaust particulate matter. Under
more realistic intermittent exposure conditions (eight hours per day, five days per week), the model predicts
that the concentration of particulate matter needed to impair lung clearance is only currently limited to
miners.
-
HEI Study: National Morbidity, Mortality and Air Pollution Study (NMMAPS). June 2000.
HEI funded the study to characterize the effects of airborne particles less than 10 mm (PM10) alone
and in combination with gaseous air pollutants in a consistent way, in a large number of
cities. The study found that in a large number of cities an average of approximately 0.5 per cent
increase in overall mortality for every 10-µg/m³ increase in PM10 measured the day before death.
However, some differences in PM10 effect on mortality were seen by region of the US - the
largest impact was evident in the Northeast. The investigators did not identify any factor or factors
that might explain these differences. HEI comments on these findings: "This analysis is an
important first step, and further evaluation of the reasons for these regional differences will
advance our understanding of the association between PM10 and mortality. The heterogeneity of
effect across cities offers the potential to identify factors that could influence effects of PM10 on
health and thus provide valuable insights into the mechanisms by which PM10 causes adverse
health effects." However, even with this finding HEI did not directly link all levels of PM emissions
to the denigration of human health, HEI states: "The theoretical and actual analysis generally
appear to refute the criticisms that exposure measurement error could explain the associations
between PM and adverse health effects. The general absence of measured exposure data,
however, precludes making firm conclusions as to the specific effects of the errors. HEI, EPA and
other organizations are currently funding research to obtain more exposure data that should lead
to more confident specific conclusions regarding the effect of any exposure measurement error."
Who is the Scientific Advisory Board (SAB)? - The US Environmental Research Development, and
Demonstration Authorization Act (ERDDAA) established the SAB in 1978. SAB is made up of distinguished
scientists, engineers and economists who are recognized, non-governmental experts in their respective fields.
In carrying out the mandate of ERDDAA, the SAB provides scientific advice as may be requested by several
government agencies including the EPA. EPA has placed a premium on basing its regulations on a solid
scientific foundation. Consequently, over the past 16 years the SAB has assumed growing importance and
stature. It is now formal practice that many major scientific points associated with environmental problems are
reviewed by the SAB.
What is The Mandate of SAB - The EPA is responsible for protecting the interests of the US federal
government in environmental matters. At times, the EPA has been accused of being over enthusiastic. The EPA
admits in its own words that in pursuit of its mandate at times it may act without full scientific support of the
need to act. The SAB acts as a tempering element in these matters. The EPA states on its Website: "The SAB
recognizes that EPA is sometimes forced to take action to avert an emerging environmental risk before all of the
rigors of scientific proof are met. To delay action until the evidence amounts to incontrovertible proof might court
irreversible ecological and health consequences. In such cases, the Agency makes certain assumptions and
extrapolations from what is known in order to reach a rational science policy position regarding the need (or lack
thereof) for regulatory action. Here, the SAB serves as a council of peers to evaluate the soundness of the
technical basis of the science policy position adopted by the EPA."
-
SAB Review of EPA's Health Assessment Document for Diesel Emissions - This review was released
on February 4, 2000. SAB did not concur with the EPA's statement that there is a direct correlation to diesel
PM and negative human health. The SAB states: "There was also substantial disagreement with the use of
the descriptor "highly" to modify the category "likely" used to describe the potential carcinogenicity of
environmental exposures to diesel emissions. The majority of the Panel (SAB) did not agree that the current
level of confidence regarding the exposure-response relationship from occupational exposures warranted
the discretionary use of the term "highly" to describe the confidence regarding the cancer hazard from
environmental exposures. The panel agreed with the Agency's (EPA) judgment that a quantitative estimate
of unit risk for human lung cancer from environmental exposures to diesel emissions could not be made with
an adequate level of confidence at this time, and viewed the source of that lack of confidence as also
conflicting with the characterization of hazard as "highly likely... The Panel acknowledges the difficulty of
dealing with the linkage between diesel particulate matter (DPM) emissions and ambient PM on the basis of
current knowledge... Overall, discussion of the linkages between health hazards from DPM and the
combination of DPM and other ambient PM still needs strengthening."
-
SAB Review of EPA's Health Assessment Document for Diesel Emissions - In this document SAB
instructs EPA to make a clear distinction between the negative health impacts of PM 10 in general and
levels of PM 10: "Although PM undoubtedly poses health and environmental hazards at some level of
exposure, the NAAQS must ultimately focus on, and be defended on the basis of, limiting the level of risk."
SAB expands on this issue, an issue CTA believes is a critical argument against Environment Canada listing
all PM 10 as toxic: "Throughout the toxicology chapter, it is important to maintain a focus on exposure-dose-
response relationships, and to put the findings in context regarding ambient inhalation exposures.No
findings should be discussed without mention of the exposure mode and dose. Premium should be placed
on conveying an understanding of effects, mechanisms, susceptibility, etc. in the context of the likelihood
that the phenomena would occur at current ambient exposures."
Part II: GlobalTox Review of Environment/Health Canada's Assessment of Respirable Particulate Matter Less
Than or Equal to Ten Microns (PM10) under CEPA (Assessment). July, 00.
Background - Based on the above information from HEI and SAB, CTA was not confident that Environment
Canada was using all available science to base its decision to list PM 10 as toxic. After reviewing Environment
and Health Canada's PM 10 Assessment document, CTA's concerns appeared to be validated. To completely
validate this concern, CTA contracted Dr. Ronald W. Brecher of GlobalTox to perform a peer review of the
Assessment document.
Who is GlobalTox? - GlobalTox is a privately owned international corporation providing services in industrial
hygiene, human and environmental toxicology and risk assessment. GlobalTox clients include U.S., Canadian,
and other national governments, corporations and non-governmental organizations. Appropriate certifying
bodies certify the principals of GlobalTox. The current president of GlobalTox was recently appointed by
Canadian Health Minister Alan Rock to serve as a member of the Expert Advisory Committee on Natural Health
Products.
Who is Dr. Ronald W. Brecher? - Dr. Brecher is a principal of GlobalTox. Dr. Brecher obtained his PhD in
Medicinal Biochemistry from Sussex University in 1987. He became a Diplomat of the American Board of
Toxicology in 1991. In 1992 he became a voting member of the Canadian Standards Association. He is a
member of several professional societies and institutes, including the Society of Toxicology of Canada (STC),
the American Society of Toxicology and the University of Waterloo's institute for Risk Research. Dr. Brecher has
over eleven years of experience as a senior consultant in toxicology, with an emphasis on assessing and
communicating human health impacts of chemicals, particularly contaminants commonly found in drinking water
and in air.
Findings of GlobalTox's Peer Review of Environment/Health Canada's Assessment Report Regarding PM 10 -
A number of key issues were identified by GlobalTox's (GT) review. Some of these concerns are
highlighted below, along with GT's conclusion. GT's report in full is attached to this document.
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Weight-of-Evidence - in the report GT outlines its philosophy in approaching a scientific assessment "The
conclusion of a scientific assessment should be dictated by the weight of scientific evidence, and not by the
most extreme (positive or negative) findings." Using this approach to evaluate the Assessment Report GT
determined: "... based on the data presented in the report, it does not appear as though it considered all the
available evidence on the health effects associated with PM10 . The document does not acknowledge a
number of reports, which bring into question the reliability of the data upon which PM10 health effect
assessments are based. The report also does not sufficiently address the availability of data suggesting
negative or non-significant associations of PM10 with specific health effects. Though the "weight-of-
evidence" appears to support a weak association between PM10 and some health effects, the magnitude and
possible causal nature of these associations remain uncertain.
-
Control of Confounding Variables - Based on existing scientific evidence there appear to be numerous
variables impacting the assessment of PM 10 and negative health impacts. In the opinion of GT the
Assessment Report does not sufficiently deal with this issue. GT explains the significance of this neglect:
"Given the complexity of assessing the health effects associated with PM10 and the important fact that one
is assessing a complex mixture, we were surprised at the cursory manner in which confounding factors are
considered in this assessment ... Given the very important role that these variables might have on the
analysis of the potential health effects associated with PM10 this very brief qualification is not sufficient to
provide the reader with an appropriate degree of confidence concerning the data and conclusions presented
by the report. As presented, it is not possible to ascertain if all potential confounding variables were
appropriately considered, and consequently, whether the findings are entirely due to PM10 toxicity. This is
extremely important, given the manner in which the report discounts the findings of some studies suggestive
of negative associations between PM10 exposures and specific health effects...Consequently, though the
report may present sufficient evidence to suggest a weak association between PM exposure and a
multitude of health effects, it is important to stress that the support for such associations are weak at best,
and that further investigations into these associations are warranted. As such, it is our opinion that the data
presented in support of the report's conclusion are limited and many not be representative of the true risk of PM10.
-
Uncertainty Concerning Risk Characterization - Despite the level of uncertainty in the scientific
community regarding PM 10 and negative health impacts, the Assessment Report strongly concludes that
all PM 10 should be labeled as toxic under CEPA, CTA disagreed with this strong conclusion based on the
fact that the Assessment Report did not explain why it was dismissing conflicting reports regarding the
weak association between PM 10 and human health. GT concurs with CTA's opinion: "The strength with
which the conclusions are presented in the report is surprising, given the uncertainties discussion,
presented under Section 3.1.4 of the report. The level of uncertainty in our understanding of the potential
health effects associated with PM10 remains high, and this report presents little information to address these
uncertainties. However, in spite of these very significant uncertainties, the conclusions presented in the
report are stated definitively, and the level of confidence in the conclusions is reported to be "moderate to
high" based on the "sufficient weight-of-evidence... The reports rather definite conclusions do not
appropriately reflect this level of uncertainty."
-
Assessment Report Should Have Concluded More Study is Needed - CTA is of the opinion that the
Assessment Report does not make a strong case for listing all PM as toxic. The GT report support's CTA's
position: "Based on this review, it appears as though this report can only support the need for additional
work with respect to the evaluation of the health risks associated with PM10 . As such, the need for an
assessment of the potential health risks associated with PM10 still remains."
-
GlobalTox Conclusion - "GLOBALTOX concludes that there is significant uncertainly associated with the
conclusions presented in the Environment/Health Canada PSL2 report on PM10 . The strength of association
between a number of the health effects and PM10 is weak at best, and further work is required to elucidate
the biological plausibility of these associations. Though PM10 may be associated with specific health effects,
the confirmation of, and risks related to, such associations are poorly characterized. Although the
conclusions presented by the study might support "a reasonable basis for preventative action" they give a
misleading impression as to the degree of confidence afforded by the available database."
Part III: Gowling's Advice Concerning Possible Legal Implications of the Listing of PM 10 as Toxic Under CEPA
Background - After reviewing CEPA 1999, CTA was of the opinion that the listing of PM 10 as
toxic may unnecessarily expose producers of PM10 to class action lawsuits. This opinion was based
on experiences in California. The staffs of the California Air Resources Board (CARB) and the Office
of Environmental Health Hazard Assessment (OEHHA) listed diesel PM in that state as toxic in 1998.
That same year a lawsuit was brought against several grocery chains that operated private trucking
fleets. After two years in litigation, the environmental lawsuit against these California grocery chains
was settled in April of this year. No improvement in soot emissions was achieved by this settlement
but the legal team behind the suit cleaned up to the tune of nearly a million dollars. The settlement
mandates replacing current diesel fleets with power units that put out the same amount of soot and
are no cleaner than the standards mandated by the California Air Resources Board since 1994-
standards the trucking industry already complies with. The April 28 settlement also mandates that the
grocery chains pay out over $US 15,000,000 for conversions, nearly $US 4,000,000 of which will be
subsidized by the taxpayers. This action circumvents CARB and puts the power of regulation into the
hands of the legal teams, who also reaped a huge windfall from the deal. Based on this experience
CTA has two concerns: (1) Owners of PM 10 producing sources will be subject to similar lawsuits in
Canada (2) The courts and not Environment Canada will become the regulator of emissions in
Canada. To establish if these concerns are warranted, CTA contracted the legal firm of Gowlings to
advise the association of the possible implications of listing PM10 as toxic under CEPA 1999. Mark
Madras of Gowlings provided this advice.
Mark Madras Professional Biography - Mark Madras is a senior member of the Gowlings'
Environmental Law and Transportation Law Practice Groups. Called to the Ontario Bar in 1976, Mr.
Madras received his law degree from Osgoode Hall Law School. Prior to joining Gowlings, he was a
partner with Saul, MacLeod & Madras. He is certified by the Law Society of Upper Canada as a
Specialist in Environmental Law and is recognized by the Lexpert Canadian Legal Directory as a
leading practitioner in Canada of environmental and transportation law. Mr. Madras is President of
the Association for Transportation Law, Logistics and Policy, an organization of over 1,200 lawyers
and transportation professionals from across North America. Mr. Madras is a member of the Law
Society of Upper Canada, the Environmental Law Section of the Canadian Bar Association (Ontario)
(a former member of the Executive of the Section), the Canadian Transport Lawyers' Association (a
former Ontario Director and member of the national Executive), the Transportation Lawyers
Association, the Arbitration and Mediation institute of Ontario Inc. (former member of the Board of
Directors, a founder of the Environmental Section, and former Chair of the Transportation Section).
He currently serves on the Board of Directors of Pollution Probe.
-
Civil Liability Risks Arising from the Emission of Toxic Substance - Based on Gowlings'
opinion it would appear that both of CTA's concerns appear to be legitimate. Gowlings explains:
"It may be argued that a person emitting a Toxic Substance has a heightened duty of care to take
all reasonable measures to prevent harm to others. It may be expected that those who may claim
that they have been harmed by the emission of PM10 would advance the proposition that the
listing of PM10 as a Toxic Substance places those who emit PM 10 on notice that the emissions
present a significant risk of harm and they ought to have acted accordingly to avoid or eliminate
such emissions. Those who allege that they have been injured as a consequence of the emission
of PM 10 can be expected to assert breach of a heightened level of responsibility, if not indeed
strict liability to ensure such harm does not occur. There should be little doubt that a heightened
exposure for liability for resulting harm will exist for those who emit PM 10."
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Adherence to Environment Canada Regulations No Longer Minimum Standard - Gowlings
concurred with CTA's opinion that Environment Canada may no longer be the determining
regulator for emission level control should PM be listed as toxic. Gowlings explains: "You should
also be aware that there is a line of jurisprudence which has found that compliance with a
regulatory standard does not necessarily afford a defense. Accordingly, if CEPA 1999 establishes
PM10 emission regulations, compliance with those regulations would not necessarily be a
defense to a civil action; the governing principle pursuant to this jurisprudence is whether
adherence to the regulation required the result. In this situation, the emission of PM10 to a
regulatory standard would not be mandatory, accordingly compliance with the regulatory standard
would not be a basis for a defense."
-
Listing PM 10 As Toxic Has Serious Implications - The listing of PM as toxic is not an
insignificant policy initiative. The listing of PM10 as toxic has very serious ramifications for
producers of PM10. Gowlings explains: "In our view, it PM10 is listed as a Toxic Substance, it will
likely have significant implications for those who emit PM10. The emission of PM10 may be
subject to stringent regulation and may require the preparation of and adherence to pollution
prevention plans. A violation of a Toxic Substance regulation governing PM 10 emissions under
CEPA may result in quasi-criminal prosecution. The offending entity and its officers and directors
may be subject to financial penalties and offending individuals may be subject to incarceration.
Citizens may be empowered to commence environmental protection actions if the Crown fails to
enforce compliance with its regulations. Non-compliance with CEPA 1999 or its regulations may
be sufficient basis to found an action for damages resulting from PM10 emissions. The listing of
PM10 as a Toxic Substance arguably leads to a higher duty of care for the emitters of PM10, and
indeed may place those who emit PM10 in a strict liability position, one in which the issues of
negligence or nuisance are irrelevant; if damage is caused, then there is liability. In our view,
those who emit PM10 will face heightened exposure to civil actions if it is listed as a Toxic
Substance. The proposed regulation of PM 10 under CEPA 1999 as a Toxic Substance should be
presumed to be a significant step. Its significance for PM10 emitters should not be
underestimated, and warrants careful evaluation."
Part IV. PM inventory in Canada. Does Listing PM10 As Toxic Help To Address The Main Source Of The
Pollutant?
Background - Heavy-duty diesel engines (HDDV) are a producer of PM10. But are HDDV a significant
contributor to the overall PM10 inventory in Canada? The answer is no, based on the work contained in the
2000 Report of the Federal Commissioner of the Environment and Sustainable Development, in his recent
report the commissioner addressed the issue of PM emissions levels in Canada. The commissioner highlighted
how PM emissions fell between 1987 to 1997 only recently experiencing a rise. The commissioner also noted
the regional aspect of PM emissions. Listed below is the total PM inventory in Canada.
Total PM inventory in Canada |
PM10 Source | Source Percentage | PM25 Source | Source Percentage |
Dust from Unpaved Roads | 38% |
Forest Fires | 39% |
Agriculture tilling and wind erosion | 16% |
Dust from Unpaved Roads | 20% |
Forest Fires | 13% |
Residential fuel wood combustion | 9% |
Construction Operations | 10% |
Dust from Paved Roads | 9% |
Dust from Paved Roads | 10% |
Wood Industry | 4% |
Agriculture/Animals | 3% |
Pulp and Paper Industry | 3% |
Residential fuel wood combustion | 3% |
Heavy duty diesel vehicles | 2% |
Wood Industry | 2% |
Prescribed burning | 2% |
Pulp and paper industry | 1% |
Other Industries | 2% |
| |
Agriculture/Animals | 2% |
| |
Railway Locomotives | 1% |
| |
Other off-highway diesel engines | 1% |
Based on the above table it is clear that the transportation industry, truck and rail have a role to play in reducing
the national PM10 inventory. (It is interesting to note that although there are over 700,000 trucks in Canada and
only 4,000 locomotives, trucks only equate to 2 per cent of total PM10 and locomotives 1per cent). However,
based on the above the transportation industry has but a small role to play in the overall reduction plan vis-à-vis
other sectors. The main source of PM10 is dust from unpaved roads.
How Does -Listing of PM10 As Toxic Help Reduce PM10 From Unpaved Roads - As presented in this
document the listing of PM10 as toxic places a greater legal burden on the producers of PM10. As such,
producers of PM10, as the California case exhibited, will have to take added precautions, beyond current
regulatory standards to ensure that PM10 emissions are limited to the fullest extent possible. As such, is it
Environment Canada's intention to force municipalities throughout Canada to pave all their gravel roads?
However, this may not be enough as dust from paved roads also plays a significant factor in total PM10
emissions. So is it the intention of Environment Canada for our nation to not only have every road in Canada
paved, but to also have the cleanest roads on the globe? CTA does not understand the policy rational for listing
PM10 with regards to intended PM10 reduction.
Concluding Remarks
Based on the conflicting scientific evidence provided in this report from the HEI and the EPA's SAB,
CTA believes that Environment Canada's listing of PM10 as toxic under CEPA is premature. A 1997
HEl study concluded: "The epidemiologic data are consistent in showing weak associations between
exposure to diesel exhaust and lung cancer." A June 2000 HEI study found a stronger correlation
between PM10 and negative health impacts but stopped far short from describing all PM10 as toxic
as more scientific work is needed: "The general absence of measured exposure data, however,
precludes making firm conclusions..." HEI's work is further supported by comments made by the
EPA's SAB related to PM10 and negative health impacts: "Overall, discussion of the linkages
between health hazards from DPM and the combination of DPM and other ambient PM still needs
strengthening."
The work performed by HEI and EPA's SAB on the subject of PM10 and negative health impacts lead CTA to
question the validity of the conclusion contained Environment and Health Canada's PM 10 Assessment
document that PM10 should be listed as toxic. To confirm the accuracy of CTA's concern, the association
contracted GlobalTox to perform a peer-review of Health/Environment Canada's Assessment Report of PM10.
GlobalTox validated CTA's concerns "GLOBALTOX concludes that there is significant uncertainty associated with
the conclusions presented in the Environment/Health Canada PSL2 report on PM10 . The strength of association
between a number of the health effects and PM10 is weak at best, and further work is required to elucidate the
biological plausibility of these associations."
Beyond the argument of scientific accuracy, Environment Canada's listing of PM10 as toxic may bring about
serious changes to the legal and policy landscape of Canada. After reviewing CEPA 1999, CTA was of the
opinion that the listing of PM 10 as toxic may unnecessarily expose producers of PM10 to class action lawsuits.
The legal firm Gowlings concurred with CTA "There should be little doubt that a heightened exposure for liability
for resulting harm will exist for those who emit PM 10... compliance with a regulatory standard does not
necessarily afford a defense."
Consequently, if Environment Canada proceeds in its commitment to list PM10 as toxic not only would it be in
error, it would be needlessly exposing owners of PM10 source pollutants to potential lawsuits --- legal actions
that will eventually weaken the regulatory authority of the agency. CTA would recommend that Environment
Canada take the following actions regarding the issue of PM10:
-
Do not list of PM10 as toxic under CEPA,
-
During the next review of CEPA create a new category for controlled substances.
-
Once the new category of controlled is established, list PM70 as a "controlled" substance under CEPA.
If Environment Canada were to proceed in the manner prescribed by CTA the department would eliminate all the
concerns outlined in this document while still increasing its power to reduce emissions.
Sincerely,
David H. Bradley
CEO
GOWLINGS
Suite 4900
Commerce Court West
Toronto. Ontario
Canada M5L 1J3
Telephone (416) 862-7525
July 10, 2000 Facsimile (416) 862-7661
www.gowlings.com
Mark L. Madras
Direct (416) 852-4296
Assistant (416) 862-4347
mark.madres@gowlings.com
File: T928222
Mr. Stephen Laskowski
Canadian Trucking Alliance
555 Dixon Road
Rexdale, Ontario
M9W 188
Dear Mr. Laskowski:
Re: Particulate Matter
This is in response to your request for our advice concerning the possible implications of the listing
of particulate matter less than or equal to 10 microns ("PM10") as a Toxic Substance under the
Canadian Environmental Protection Act, 1999 ("CEPA 1999").
Under CEPA 1999, the Governor-in-Council, on the recommendation of the Ministers of
Environment and Health, may make an Order adding a substance to the List of Toxic Substances.
(CEPA 1999, s. 90) A substance may be listed as toxic if it meets the following definition:
"... a substance is toxic if it is entering or may enter the environment
in a quantity or concentration or under conditions that
(a) have or may have an immediate or long-term harmful effect on
the environment or its biological diversity;
(b) constitute or may constitute a danger to the environment on which
life depends; or
(c) constitute or may constitute a danger in Canada to human life or
health." (CEPA 1999, s. 64)
We believe that the listing of a substance as a Toxic Substance under CEPA 1999 may have
significant and far-reaching implications for those who emit the substance into the environment. We
have identified four main categories of concern:
-
Limitations on emission by regulation;
-
Quasi-criminal consequences for violations of CEPA 1999 or its regulations;
-
CEPA 1999 special remedy provisions; and
-
Civil liability risks related to the emission of a Toxic Substance.
We will address each category of concern in turn.
Limitations on Emissions
Once a substance is added to the list of Toxic Substances the Governor-in-Council may make
regulations regulating the substance. Accordingly, federal jurisdiction would then extend to
emissions of PM10. This may include regulations respecting:
(a) The quantity or concentration of PM10 that may be released into the environment,
either alone or in combination with any other substance, from any source or type of
source;
(b) The place or areas where PM10 may be released;
(c) The activity in the course of which PM10 may be released;
(d) The manner in which and conditions under which PM10 may be released into the
environment. either alone or in combination with any other substance;
(e) The submission of information relating to the release of PM10 to the government;
(f) The maintenance of books and records and the conduct of sampling, analysis, tests,
measurements or monitoring of PM10 emissions. (CEPA 1999, s. 93(1))
As well, once a substance is added to the List of Toxic Substances, the federal Minister of the
Environment may require "any person or class of persons ... to prepare and implement a pollution
prevention plan". (CEPA 1999, s. 56)
CEPA 1999 also contains provision for the implementation of measures to lead to the virtual
elimination of certain toxic substances. Such regulations would have to be grounded upon a finding
that PM 10 may have a long term harmful effect on the environment, is persistent and bio-
accumulative in accordance with the regulations, and is inherently toxic to human beings or
non-human organisms as determined by laboratory or other studies, and is present in the environment
primarily as a result of human activity. (CEPA 1999, s. 77(3) and (4))
Notice of the regulatory action intended to be taken is required to be given in the Canada Gazette.
Quasi-Criminality of Breach of the Regulations
A contravention of CEPA 1999 and its regulations is an offence. The Crown may proceed either by
indictment or by summary conviction. If the Crown proceeds by indictment the maximum fine is
$1 million, and a penalty of imprisonment of up to three years may also be imposed. If the Crown
proceeds by summary conviction, the maximum fine is $300,000, and the Crown may seek a term
of imprisonment of up to six months.
CEPA 1999 also provides that where a corporation commits an offence, "any officer, director or
agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the
commission of the offence is a party to and guilty of the offence". Officers and directors are
required to take all reasonable care to ensure compliance with the Act and its regulations, failing
which they would be guilty of an offence under CEPA 1999.
CEPA 1999 Special Remedies
CEPA 1999 provides for a new class of citizen action to compel compliance with the legislation and
the regulations. Such an action is called an "environmental protection action". A citizen may
initiate an environmental protection action where the Crown has failed to enforce the Act. The
action may seek an order directing measures to be taken to rectify non-compliance as well as to
secure a plan to correct or mitigate harm to the environment.
CEPA 1999 also provides that where there is a release of a Toxic Substance in contravention of a
regulation responsible persons are required to take all reasonable measures to prevent a further
release and to mitigate the dangers to the environment or to human life or health that may result from
the release.
Furthermore, CEPA 1999 contains a provision that where there has been a contravention of the Act
or the regulations, any person who has suffered loss or damage as a result may bring an action
against the offending party for compensation for the damage proved to have been suffered as a result
of the contravention, as well as an amount to compensate for legal costs associated with the action.
Accordingly, a violation of the Act or the Regulations is a sufficient basis for an action, without
requiring proof of negligence or the elements required to establish any other common law tort.
Civil Liability Risks Arising from the Emission of a Toxic Substance
It may be argued that a person emitting a Toxic Substance has a heightened duty of care to take all
reasonable measures to prevent harm to others. It may be expected that those who may claim that
they have been harmed by the emission of PM10 would advance the proposition that the listing of
PM10 as a Toxic Substance places those who emit PM10 on notice that the emissions present a
significant risk of harm and they ought to have acted accordingly to avoid or eliminate such
emissions.. Those who allege that they have been injured as a consequence of the emission of PM10
can be expected to assert a breach of a heightened level of responsibility, if not indeed strict liability
to ensure such harm does not occur. There should be little doubt that a heightened exposure for
liability for resulting harm will exist for those who emit PM10.
You should also be aware that there is a line of jurisprudence which has found that compliance with
a regulatory standard does not necessarily afford a defence. Accordingly, if CEPA 1999 establishes
PM10 emission regulations, compliance with those regulations would not necessarily be a defence
to a civil action; the governing principle pursuant to this jurisprudence is whether adherence to the
regulation required the result. In this situation, the emission of PM10 to a regulatory standard would
not be mandatory, accordingly compliance with the regulatory standard would not be a basis for a
defence.
Conclusion
This report is not intended to be construed as a legal opinion concerning the liability of those who
emit PM10, bur rather is intended to identify issues which should be considered as matters of serious
concern in any discussion concerning the Toxic Substance designation of PM10.
In our view, if PM10 is listed as a Toxic Substance, it will likely have significant implications for
those who emit PM10.
The emission of PM10 may be subject to stringent regulation and may require the preparation of and
adherence to pollution prevention plans. A violation of a Toxic Substance regulation governing PM
10 emissions under CEPA may result in quasi-criminal prosecution. The offending entity and its
officers and directors may be subject to financial penalties and offending individuals may be subject
to incarceration. Citizens may be empowered to commence environmental protection actions if the
Crown fails to enforce compliance with its regulations.
Non-compliance with CEPA 1999 or its regulations may be a sufficient basis to found an action for
damages resulting from PM10 emissions. The listing of PM10 as a Toxic Substance arguably leads
to a higher duty of care for the emitters of PM10, and indeed may place those who emit PM10 in a
strict liability position, one in which the issues of negligence or nuisance are irrelevant; if damage
is caused, then there is liability. In our view, those who emit PM10 will face heightened exposure
to civil actions if it is listed as a Toxic Substance.
The proposed regulation of PM10 under CEPA 1999 as a Toxic Substance should be presumed to
be a significant step. Its significance for PM10 emitters should not be underestimated, and warrants
careful evaluation.
Yours very truly,
GOWLING LAFLEUR HENDERSON LLP
Mark L. Madras
Certified by the Law Society as a
Specialist in Environmental Law
GLOBAL TOX
July 25, 2000
Mr. Stephen Laslowski
Director, Policy Development
Canadian Trucking Alliance
555 Dixon Road
Toronto, Ontario M9W 1H8
BY REGULAR MAIL AND E-MAIL
Dear Mr. Laslowski:
Re: Review of Environment/Health Canada's Assessment of Respirable Particulate-
Matter Less Than or Equal to Ten Microns (PMg) under the Canadian
Environmental Protection Act (CEPA)
Introduction
GLOBALTOX was retained by the Canadian Truckers Alliance (CTA) to conduct a reiview of
Environment and Health Canada's evaluation of Respirable Particulate Matter Less Than or
Equal to Ten Microns (PM10) as a Priority Substance under the Canadian Environmental
Protection Act (CEPA).
The following letter-report outlines GLOBALTOX's comments on the following document:
Environment and Health Canada. 2000. Canadian Environmental Protection Act, 1999 -
Priority Substances List Assessment Repost: Respirable Particulate Matter Less Than or
Equal to 10 Microns.
Disclaimer
This letter-report was prepared by GLOBALTOX INTERNATIONAL CONSULTANTS INC. for the
CTA. The material in it reflects GLOBALTOX's best judgment in light of the information
available to GLOBALTOX at the time of preparation. Any use which a third party makes of this
report, or any reliance on or decisions to be made based on it, are the responsibility of such third
parties. GLOBALTOX accepts no responsibility for damages, if any, suffered by any third parties
as a result of decisions made or actions taken based on this report.
Rationale for Inclusion of PM, on the Second Priority Substances List
(PSL2)
There are three definitions of "toxic" under CEPA, which are set out in Part 5 (Section 64) of the
Act, namely1 :
"A substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that"
(a) have or may have an immediate or long-term harmful effect on the environment or its biological
diversity;
(b) constitute or may constitute a danger to the environment on which life depends; or
(c) constitute or may constitute a danger in Canada to human life or health."
The rationale for the inclusion of PM10 on the second Priority Substances List (PSL2) was as
follows2:
"Exposure to respirable particulate matter in the Canadian environment is widespread. Sources include
vehicle exhaust, construction, industrial air pollution and the bulk shipping of minerals. Small particles,
irrespective of their origins, are rapped in the lungs. Effects associated with ambient exposure to respirable
particulate matter include respiratory and pulmonary health dysfunction which can lead to school
absenteeism and increased hospital admissions. An assessment is needed to evaluate health risks."
The above paragraph makes the following assenions concerning adverse effects of PM10 on
human health:
- Ambient exposures to PM10 may be associated with respiratory and pulmonary health
dysfunction.
- Exposures can lead to school absenteeism and increased hospitalisation.
These effects-related statements will be evaluated in the remainder of this letter-report.
Key Issues Identified From Critical Review
A number of key issues were identified during GLOBALTOX's review of the PSL2 assessment
report on PM10 . These are summarised below:
Weight-of-Evidence
Scientific investigations can yield apparently conflicting or inconsistent information. Different
investigators focus on different questions, use different methods, and interpret their data in
different ways. Therefore, it is important to evaluate all relevant scientific information in
arriving at a conclusion on any particular question. The conclusion of a scientific assessment
should be dictated by the weight of scientific evidence, and not by the most extreme (positive or
negative) findings.
It was interesting to note that a number of the conclusions presented in the report refer
specifically to the "weight-of-evidence" with respect to the potential health effects associated
with PM10 exposure. However, based on the data presented in the report, it does not appear as
though it considered all the available evidence on the health effects associated with PM10 . The
document does not acknowledge a number of reports which bring into question the reliability of
the data upon which PM10 health effects assessmemts are based. The report also does not
sufficiently address the availability of data suggesting negative or non-significant associations of
PM10 with specific health effects. Though the "weight-of-evidence" appears to support a weak
association between PM10, and some health effects, the magnitude and possible causal nature of
these associations remain uncertain.
The uncertainty around whether the entire "weight-of-evidence" is considered in this report may
be due to the fact that the approach to the identification and review of studies is not clearly
presented. 1t is not evident if the report considered a number of findings presented in several
studies which would appear to suggest that the association of specific health effects with PM10
exposure remains uncertain. Therefore, it is not clear whether the literature reviewed in support
of this report was representative of the full spectrum of findings with respect to the particular
issues under discussion.
Control of Confounding Variables
Given the complexity of assessing the health effects associated with PM10 , and the important fact
that one is assessing a complex mixture, we were surprised at the cursory manner in which
confounding factors are considered in this assessment. When presenting data, the report simply
states that "confounding risk factors were taken into account in the analysis", or words to that
effect. A description of the specific confounding variables considered is never clearly provided.
Given the very important role that these variables might have on the analysis of the potential
health effects associated with PM10 , this very brief qualification is not sufficient to provide the
reader with an appropriate degree of confidence concerning the data and conclusions presented
by the report. As presented, it is not possible to ascertain if all potential confounding variables
were appropriately considered, and consequently, whether the findings are entirely due to PM10
toxicity. This is extremely important, given the manner in which the report discounts the
findings of some studies suggestive of negative associations between PM10 exposures and
specific health effects. In the majority of these cases, the report observes that either the statistical
power of the data presented in the reports was not strong due to limitations in sample size, or that
the study did not fully consider appropriate confounding variables. Given these observations, it
is surprising that the conclusions in the report do not sufficiently take account of the uncertainties
associated with the assessment of this complex mixture. This is reinforced in the following
description of the uncertainties of the risk analysis (cf. Section 3.1.4):
"there are still some important uncertainties in the available effects-related data. There is concern for
possible confounding from exposure to other co-occurring (and often highly correlated) pollutants, in which
case the increased risk could be ascribed to the wrong agent"
This statement acknowledges that a number of important issues remain to be addressed in
assessing the health risks associated with PM10 . Consequently, though the report may present
sufficient evidence to suggest a weak association between PM10 exposure and a multitude of
health effects, it is important to stress that the support for such associations are weak at best, and
that further investigations into these associations are warranted. As such, it is our opinion that
the data presented in support of the report's conclusion are limited and many not be
representative of the true risk of PM10 . Although we concur with the report that its findings may
support "a reasonable basis for preventative action", the confidence in the data presented in this
assessment is weak and additional work is recommended.
Uncertainty Concerning Exposure
Evaluation of whether a substance is "toxic" under the CEPA definitions, as with any analysis of
health effects or risks, is dependent on a reliable estimate of potential exposure. The report
acknowledges the uncertainties associated with the current state of knowledge concerning PM10
exposure. These uncertainties are based on the fact that even though there is a vast inventory of
monitoring data, the majority of the data represent 24-hour ambient concentrations measured at
fixed sites. The report acknowledges that there is significant site-specific variability in the
distribution of PM10 concentrations, and that there is some uncertainty associated with the use of
fixed-area monitoring data as surrogates for human exposure. However, the report fails to
address the significant regional variability in PM10 levels.
The lack of confidence in the overall exposure assessment presented within this report highlights
a need for further research in this area, and brings into question the defensibility of the
conclusions presented in the report.
Uncertainty Concerning Risk Characterisation
The strength with which the conclusions are presented in the report is surprising, given the
uncertainties discussion, presented under Section 3.1.4 of the report. The level of uncertainly in
our understanding of the potential health effects associated with PM10 remains high, and this
report presents little information to address these uncertainties. However, in spite of these very
significant uncertainties, the conclusions presented in the report are stated definitively, and the
level of confidence in the conclusions is reported to be "moderate to high" based on the
"sufficient weight-of-evidence...". Some of the key uncertainties noted in the report include:
- "Strength of the association is... weak, although fairly consistent.. "
- "No epidemiological studies that have investigated health outcomes in relation to exposure to ultrafine
particles or to personal exposure"
- "'Few epidemiological data on the health effects of long-term exposure to particulate matter"
- "...available controlled studies of human exposed to particulate matter are quite limited..."
- "With respect to studies in animals, there are few dosimetric data to account for differences in responses
observed in animals and humans and the modes of action for particulate matter-related health effects
have still not been elucidated..."
Although PM10 may be associated with specific health effects, this must be considered uncertain
based on the information in the report. The report's rather definite conclusions do not
appropriately reflect this level of uncertainty.
Evaluation of Assertions of the Expert Advisory Panel With Respect to PM10
Respiratory and Pulmonary Health Dysfunction
The report presents some supporting data to suggest that PM10 may be associated with respiratory
and pulmonary health dysfunction. However, the report does not characterise specific impacts on
the respiratory/pulmonary systems. Specific impacts on respiratory and/or pulmonary function
and the mechanism of toxicity are not addressed. Although the report presents some data
concerning potential long-term effects, the data set for long-term toxicity is limited and is not
included in the basis of any of the conclusions presented in the report. Therefore, although it
would appear that this assertion is confirmed, at least to a degree, it is also clear that additional
work is required to further characterise these potential effects.
Increased School/Work Absenteeism and Hospitalisation
This assertion is addressed under Sections 2.4.1.2.2 (hospitalisation) and 2.4.1.2.3 (school/work absenteeism) of the report. With respect to school absenteeism, the number of studies in support of this assertion is limited, and the degree to which the data presented under this section is representative of Canadian ambient PM10 conditions is uncertain. This is due to the observation that in the study by Ransom and Pope (1992), the data presented was for ambient PM10 concentrations ranging between 41 to 51 µg/m³ (which is at the high range of mean ambient PM10 concentrations across Canada presented under Section 2.3.2.2.1 (11 to 42 µg/m³).
With respect to the assertion of increased hospitalisation, there is a large data set of supporting data presented in the report. The data presented in this set and the methodology and study design employed in these studies appear to be highly variable. In addition, the confounding variables that are addressed in these studies are also highly variable, and some of the data are based on derived PM10 levels from non-direct measurements of PM. In fact, the data considered in the report to be the "most reliable" (Burnett et al., 1995) is based on measured sulphate levels, and did not consider PM10 directly. Therefore, the confidence in the available data concerning the
relationship between PM10 and increased hospitalisations remains uncertain.
Overall Evaluation of Health Risks
Based on this review, it appears as though this report can only support the need for additional work with respect to the evaluation of the health risks associated with PM10 . As such, the need for an assessment of the potential health risks associated with PM10 still remains.
Conclusion
GLOBALTOX concludes that there is significant uncertainty associated with the conclusions
kinted in the Environment/Heahli Canada PSL2 report on PM10 . The strength of association between a number of the health effects and PM, is weak at best, and further work is required to elucidate the biological plausibility of these associations. Though PM10 may be associated with specific health effects, the confirmation of, and risks related to, such associations are poorly characterised. Although the conclusions presented by the study might support "a reasonable basis for preventative action", they give a misleading impression as to the degree of confidence afforded by the available database.
Recommendation
Further work should be undertaken to locate peer-reviewed scientific studies that respond to the limitations identified above. Where necessary, new research (or further synthesis of existing information) should be undertaken to expand the knowledge base to the point where a more definitive and defensible conclusion can be advanced with respect to whether PM10 are "toxic" as defined under CEPA.
Closure
GLOBALTOX appreciates the opportunity to assist the CTA in its review of Environment and Health Canada's evaluation of PM10 under CEPA. Please do not hesitate to contact me at (519) 766-1000 123 should you have any questions concerning this letter-report.
Yours sincerely,
GLOBALTOX INERNATIONAL CONSULTANTS INC.
Ronald W. Brecher, PhD, DABT, C.Chem.
Principal
1 Canadian Environmental Protection Act (CEPA), 1999 - Statutes of Canada 1999,Chapter 33. Environment Canada, 1999, p. 39.
2 Report of the Ministers Expert Advisory Panel on the Second Priority Substances List Under the Canadian Environmental Protection Act (CEPA), PSL2 Secretariat October, 1995, p. 15.
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