SUMMARY REPORT OF WEB-BASED COMMENTS TO ASSIST ENVIRONMENT CANADA AND HEALTH CANADA IN PREPARING FOR THE PARLIAMENTARY REVIEW OF THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

SECTION 6: PERFORMANCE PROMOTION

Q 6.1. What are your views on the authorities to enforce the Act and its regulations?

Most commentaries expressed the view that the current enforcement provisions in CEPA 1999 are sufficiently broad that no further amendment is required. However, several commentaries expressed the view that the enforcement of CEPA is inadequate. There is a lack of commitment to enforce the Act and human and financial resources for enforcement are inadequate to do an effective job. Some of these commentaries stressed that full and consistent enforcement across sectors, and regions is needed to ensure environmental protection and a sustainable economy. One commentary noted that more authority should be given to private citizens to prosecute and that the Environmental Protection Action provisions in CEPA 1999 are ineffective because they are too complex.

Q 6.2. Should the Act provide an alternative approach to the designation of substances?

Some commentaries noted that there should be more use made of the designation by classes of substances rather than individual substances to expedite the process. The European REACH program was suggested as a model for improving some aspects of CEPA 1999.

A couple of commentaries stated that the designation of "CEPA toxic" should be retained for substances that meet the definition provided in s. 64 of CEPA 1999.

Several commentaries noted that clarification is required for the process whereby substances undergo risk assessment and a consequent determination for scheduling the substance.. In particular, many of these commentaries stressed that the current approach to assessing risk and designating substances is appropriate and should not be modified. However many of these commentaries also stressed that the reason for proposing or including substances on Schedule 1 must be clearly communicated to the public in plain language. Moreover, many of these commentaries stressed that the use of the word "toxic" was often misleading, and in certain cases imposes an inappropriate stigma on certain substances. To address this problem, some commentaries suggested that instead of the use of the term "toxic" a different designation, such as "substance to be managed" would be appropriate. Other than changing terminology, most of these commentaries argued that changing the approach to listing substances that have been determined toxic would involve a major and inappropriate restructuring of the current legislation. One commentary noted that adding a column to Schedule 1, describing the type of risk posed by the substances on the list, would be appropriate, and would be very helpful in guiding subsequent risk management steps.

Q 6.3. Should the Act provide an alternative approach to the listing of substances that have been determined to be toxic?

A number of commentaries agreed that where the government review concludes that the substance or a group of substances is "toxic" those substances should automatically be designated without the need to go to the Governor-in-Council for a decision.

One commentary noted that the approach used for the designation of substances needs to be amended to be more comprehensive and transparent. There is also a need to include regional or site-specific options under the designation. More comprehensive information regarding the dose of the substance and the effects (e.g., sub-lethal, acute) should be reported in the substance designation.

A number of commentaries were not in favour of removing the role of the Governor-in-Council in deciding whether substances are to be placed on Schedule 1. Some of these commentaries noted that the use of alternative approaches might overlook a science-base approach and may be subject to political influence. Checks and balances are needed in the legislation to ensure it remains fair and effective. Providing alternative approaches to listing substances that have been determined to be toxic would require a major overhaul of the Act, which is inappropriate at this time. A few commentaries noted that Schedule 1 should be renamed, for example, "List of Substances to be Managed".

Q 6.4. Should the Act include additional authority regarding economic instruments?

Several commentaries agreed that economic instruments can be effectively used as a supplement to encourage compliance and performance. However, they should not be seen as removing the need for regulatory action. The current CEPA provisions detailing "fees" should be expanded so that the government is not restricted to charging only for cost-recovery for administrative costs associated with program delivery. Emission trading systems that inform the release of toxic substances should not be permitted. Consumer goods which have hazardous qualities should have either a deposit/return schemes or "enviro charges" to cover remediation efforts.

One commentary in supporting the use of economic instruments in CEPA 1999 noted that deposit -- refund schemes focus on the collection stage of supply-side management of a product and that the focus should be redirected to the product design stage and the markets for recovered materials (demand-side management).

Some commentaries felt strongly that there was no justification for amending CEPA 1999 to provide additional authorities for economic instruments. CEPA should not provide the departments with discretionary authorities to set fees as economic signals. Any additional provisions should be revenue neutral in order to avoid adverse impacts on industry competitiveness and avoid what would clearly be considered a new tax.

Q 6.5. Should CEPA 1999 require an LoQ for every substance being added to the Virtual Elimination List?

Some commentaries agreed that an LoQ may not be required for every substance on the Virtual Elimination List. One commentary noted that the LoQ is a contrived measure that sets values that are unnecessarily high, difficult to support, and do not reflect the need to eliminate substances. The use, sale, import and export of Virtual Elimination substances should be banned or phased out. Wherever Virtual Elimination substances are by-products of other processes, production processes should be required to be modified to eliminate the generation of these substances. One commentary noted that if an LoQ is not available for a substance, the reasons why it is not available should be listed.

Some commentaries noted that issues surrounding the concept of virtual elimination were a major topic of debate during the review of the 1988 CEPA. The establishment of an LoQ was a recognition of the need to determine a stopping point for virtual elimination as virtual elimination is a different concept than "zero discharge". For these reasons, no changes should be made to CEPA 1999 with respect to any aspect of the virtual elimination or LoQ provisions.

Q 6.6. Should the Act enable export/import permits to adapt to changing circumstances?

Some commentaries agreed that CEPA should enable export/import permits to adapt to changing circumstances. The Minister should have the power to change permits that have already been issued and put time limits on how long a permit is valid. One commentary noted that the Minister should be mandated to change a permit where the circumstances surrounding the issuance of the initial permit have changed. Notices for waste movements should be required to be posted on the CEPA 1999 Registry for public comment.

One commentary noted that the Act should define recyclable materials separately from waste and should require separate regulations for recyclable materials and wastes.

Some commentaries noted that the Act currently provides extensive flexibility and opportunities for imposing conditions and criteria. Because export and import permits are issued for a specified time period, and are only valid if conditions in them are met, there is no need to provide CEPA 1999 with greater flexibility in addressing import/export permits. Changing an import/export permit before it expires will restrict the importers/exporter's ability to operate and meet contractual agreements.

Q 6.7. Are the export reduction planning provisions effective, or should they be clarified or removed from the Act?

Some commentaries noted that export reduction planning provisions are useful pollution prevention instruments and should not be removed from CEPA 1999. However current provisions are not effective and should be assessed and changes made to CEPA 1999 to improve their effectiveness. These provisions should also be extended to the import and export of non-hazardous wastes. The focus of the provisions should also be extended to generators of waste and hazardous recyclable materials that may be exported.

Some commentaries noted that the export reduction planning provisions should be removed from the Act for the reasons detailed in the CEPA 1999 Scoping Paper. One commentary noted that Environment Canada should work more closely with other governments to characterize the quantity and quality and waste and to encourage waste minimization, hazard elimination/reduction and diversion of waste for recycling and recovery. One commentary noted that the objective should be open borders in North America for waste and recyclables so that they can be managed/utilised in the most appropriate facility, regardless of the country where that facility is located.

Q 6.8. Should CEPA 1999 enable further alignment with emission control standards of other countries, including the U.S.?

One commentary noted that as an independent nation Canada should have its own standards that meet its own environmental needs. Therefore CEPA 1999 should not be amended to further align emission control standards with other countries.

Some commentaries did agree that CEPA 1999 should enable further alignment with other countries, provided and that the standards are equal to or are better than those used in CEPA 1999. Where standards are yet to be established, inter-jurisdictional cooperation should be encouraged to set firm standards.

Some commentaries stated that amendments to CEPA 1999 to further align emission control standards with other countries are not necessary. Alignment on emission controls issues, where environmental needs are often different, is a less important than alignment on product issues where trade is involved.

One commentary noted that CEPA 1999 fully recognises that vehicles and fuels are an intergraded system and that the total systems approach is the only way to ensure that maximum and immediate environmental benefits are realised from current and future emission control technology. Given this alignment, the industry already voluntarily provides warranties on emission control components. Consequently, it is redundant to consider further alignment with emission control standards for issues such as warranties as there will be no additional environmental benefits to be gained. Alignment with emission control standards in the United States is acceptable. However, alignment with other countries would not benefit the environment to the same extent and could jeopardize expected future progress.

Q 6.9. Should CEPA 1999 include authorities to address fuels as they move throughout the entire distribution system (from the refinery to the service station)?

Some commentaries agreed that CEPA 1999, should include authorities to address fuels as they move throughout the entire distribution system. One commentary noted that the process and the costs of following the fuel should be assumed by the companies realizing a profit from the sale of the fuels. One commentary noted that the vehicle emissions and fuel standards should meet or exceed California's proposed Clean Air Standards.

One commentary opposed the extension of CEPA 1999 beyond current authorities to address fuels as they move throughout the distribution system. The Fuels Information Regulations can provide the same information that is being proposed via the extended authority proposal in this CEPA 1999 Scoping Paper. Extending authorities in CEPA may lead to unintended consequences and unnecessary regulatory burden on the oil and gas industry.

Q 6.10. Should CEPA 1999 be clarified to ensure that the Minister can prohibit the sale or use of a new substance that has been manufactured in or imported into Canada prior to completion of its assessment?

Some commentaries agreed that CEPA should be clarified to ensure that the Minister can prohibit the sale or use of a new substance that has been manufactured in imported into Canada prior to completion of its assessment. The burden of proof regarding environmental and health safety should be on the manufacture or importer of any substance.

Some commentaries noted that the CEPA 1999 Scoping Paper did not provide enough information to justify the need for the proposed clarification in CEPA 1999. One commentary felt that the existing powers under sections 80 to 89 are adequate to address this situation.

Q 6.11. Are there benefits to the CEPA 1999 requirement that disposal at sea permits be published in the Canada Gazette for a 30 day period?

Some commentaries noted that publishing disposal at sea permits in the Canada Gazette for a 30 day period was useful and should be retained. These commentaries also noted that this public comment opportunity has not been used historically simply because the general public is not aware of it. Most members of the general public do not examine the Canada Gazette. The government should develop mechanisms to inform the concerned public when items of interest are posted in the Canada Gazette. Publication should also be included in the CEPA Registry.

One commentary noted that the disposal at sea provisions need to be improved with adequate permit fees to fund monitoring activities and measures that enhance public participation in disposal permitting. One commentary noted that disposal at sea is not a sustainable practice, is contrary to pollution prevention principles, and will inevitably lead to cumulative negative impacts affecting fish stocks and marine ecosystems.

One commentary noted that the 30 day publication requirement in the Canada Gazette imposes added delay and cost and is not an effective means to solicit public comment.

Q 6.12. Should more flexibility be accorded for a permit's term?

A couple of commentaries agreed that more flexibility not be accorded for extending the term of a disposal at sea permit. The permit should expire and any requests for a renewed permit should be reassessed.

The couple of commentaries felt that the process should allow for more flexibility. One commentary strongly supported the harmonization of the sampling program term (valid for a period of up to four years) with the disposal permit term.

Q 6.13. What are your views on the relationship between CEPA 1999 and the Fisheries Act pertaining to the disposal of substances in accordance with a disposal at sea permit?

A couple of commentaries noted that both CEPA 1999 and the Fisheries Act should apply. Where an apparent conflict occurs, the habitat protection provisions of the Fisheries Act should prevail in relation to the impacts of ocean disposal.

A couple of commentaries noted that where CEPA 1999 has been complied with the Fisheries Act should not prevail. This, in part, avoids overlap and duplication.

Q 6.14. Should CEPA 1999 authorize the designation of qualified persons as environmental emergencies officers?

A couple of commentaries agreed that CEPA 1999, should authorize the designation of qualified persons as environmental emergencies officers. Appropriate training and certification should be provided and environmental emergencies officers should be recruited.

Some commentaries noted that there is no case to be made for establishing a separate designation for environmental emergencies officers. At the very least, more detail and discussion is needed regarding the powers of emergencies officers. One commentary noted that by designating a separate group of officers to conduct inspections and creates the potential for duplication and miscommunication.