SUMMARY REPORT ON THE PUBLIC WORKSHOPS ASSISTING ENVIRONMENT CANADA
AND HEALTH CANADA IN PREPARING FOR THE PARLIAMENTARY REVIEW OF THE CANADIAN
ENVIRONMENTAL PROTECTION ACT, 1999
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4. SUMMARY OF WHAT WAS HEARD
4.1 Overarching Messages
CEPA 1999 is fundamentally sound but needs better implementation:
Many participants across sectors and across the country generally felt
that CEPA 1999 is fundamentally sound and does not require significant
amendment to ensure effective and ongoing protection of human health and
the environment. However, many participants were also generally of the
view that much more needs to be done to effectively implement the Act
to ensure that it delivers on its full potential, including taking faster
action to reduce risks.
Many participants acknowledged the numerous, complex and fundamental
structural changes from the original 1988 CEPA that were put in place
when CEPA 1999 came into force in 2000. These participants generally recognized
that five years is a relatively short time to implement, and to see the
results from all of the major requirements of the new legislation. Therefore,
these participants urged the departments to improve implementation opportunities,
but not to propose to Parliament significant legislative amendments to
the current structure of the Act. Many felt that the basic framework of
the Act should not undergo review every five years (suggested Review period
timeframes ranged from seven to 10 years). Most importantly, participants
generally insisted that the preparations for the Parliamentary Review,
and the Review itself, should not divert human and financial resources
from implementation initiatives. Indeed, several participants expressly
stated they were concerned that the current resources needed to deliver
CEPA 1999 are already inadequate.
By the end of the public workshop process, it was apparent that many
participants had identified four discreet but interrelated expectations
or objectives for CEPA 1999 and for the federal government's implementation
of CEPA 1999 that cut across all of the themes identified below. Any initiatives
for improving the implementation of, or the amendment of CEPA 1999, must
take these crosscutting objectives into account, as follows:
National Leadership and Coherence: the federal government should
recognize and use CEPA 1999 as the central Act for preventing pollution,
setting national standards and establishing a coherent set of environmental
laws and policies in Canada. In particular, CEPA 1999 should champion
cooperation and collaboration both within the federal government and among
the various jurisdictions involved in protecting the environment and human
health, (e.g., federal, provincial, territorial, municipal and aboriginal
governments and regulatory bodies). With respect to promoting coherence
among federal laws and policies, participants routinely flagged seeming
discrepancies, potential gaps, potential duplication, or inconsistencies
among a variety of federal laws including the Fisheries Act, the
Pest Control Products Act, the Canadian Environmental Assessment
Act, the Transportation of Dangerous Goods Act, the Motor
Vehicle Safety Act, the proposed Canada Health Protection Act,
various Territorial laws and CEPA 1999.
Smart Regulation: CEPA 1999 itself should provide for an
optimum mix of incentives and disincentives and ensure that risk managers
have easy access to a comprehensive toolbox to ensure the most effective
management strategy for substances to be managed under the Act. CEPA should
also enable the use of the most effective tool by the jurisdiction that
is in the best position to take action (including other federal departments).
CEPA should ensure that the range of available risk management tools is
sophisticated enough to effectively and efficiently address specific ecological
and regional circumstances. In this regard, virtually all participants
at the Yellowknife session emphasized the importance of ensuring that
risk management strategies specifically recognize and use appropriate
tools to address northern realities, needs and expectations.
Some participants were hesitant to have substances, which were assessed
under CEPA, managed by another department or jurisdiction. However, participants
did stress that where federal risk managers decide that an issue is best
managed outside of CEPA, the Act must still ensure that such decisions
are completely transparent. As importantly, the Ministers of the Environment
and Health must remain fully accountable for ensuring that the toxic substances
in question are managed effectively, must track progress, and must be
able to act quickly and decisively when other jurisdictions are not managing
the risk effectively. In this context there were concerns raised regarding
progress made under the Canadian Council of Ministers of the Environment
(CCME) Harmonization Accord and development and implementation of Canada-wide
Standards.
International Collaboration: Many participants recognized the
international dimensions of environmental and human health protection,
especially as it relates to the assessment and management of existing
and new substances. In this regard, participants were generally of the
view that international collaboration is useful and necessary. Some of
these participants generally felt that CEPA 1999 should take a leadership
role in promoting an international agenda (as opposed to having other
jurisdictions or international agencies set the agenda for Canada). They
also felt that CEPA 1999 is an important tool for facilitating this cooperation
and for implementing international environmental protection agreements.
Participants generally recognized the need for cooperation with other
national and international jurisdictions as well as domestic jurisdictions
to promote effective international action. Participants also flagged the
need to ensure that all the implications of international cooperation
are fully understood before committing to a particular course of action.
Sound Science and Informed Decision-Making: CEPA 1999 should
provide high quality science and information (including information derived
from traditional aboriginal knowledge, traditional ecological knowledge
and community- based knowledge) to support timely, preventative, precautionary
and transparent decisions by government. CEPA should also provide user-friendly
and free access to high-quality, plain language information to support
informed choices by all Canadians.
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4.2 What was Heard on Knowledge for Protecting Human
Health and the Environment
Many participants across sectors felt that the departments could do more
to generate knowledge for protecting health and the environment in ways
that could take advantage of other national and international efforts
and that support current and emerging risk management priorities. Participants
who were aware of the categorization and screening level assessment processes
in Part 5 of CEPA 1999 recognized that Canada is a world leader in dealing
with the legacy of existing substances that were brought into commerce,
largely from the 1940s to the mid 1990s, without thorough assessment and
management of the risks. These participants suggested that the departments
should maximize collaboration with Canadian partners and the international
community in order to acquire and access the data necessary to assess
and manage existing substances systematically and efficiently. Collaboration
can include sharing workloads and exchanging findings in order to avoid
duplication of effort, and to reduce human and financial resource burdens.
There was considerable discussion on the relative roles and interrelationships
within CEPA 1999 to promote the "three pillars" of healthy environment,
healthy Canadians and a competitive economy. Some participants felt that
the CEPA mandate should remain focused on health and the environment and
not on a competitive economy. Some other participants felt that CEPA 1999
should promote all three pillars, and in particular that health and environmental
protection in Canada should line up with the laws of Canada's major trading
partners to ensure there is a level playing/trading field. It was noted
that strong environmental laws can provide competitive advantages to companies
with environmentally responsible products. It was also noted that health,
the environment and the economy are not in competition with each other
and that CEPA 1999 should be reviewed from this integrated synergistic
perspective.
Some participants argued that CEPA 1999 must shift focus from "sustainable
development" to "sustainable consumption", that its overriding
principle should be "do no harm", and that it not only protect
but also promote human and environmental health.
Concerns were raised that the Act does not have clear steps and timelines
for the screening assessment process which follows categorization. Various
participants suggested that the departments should work more closely together
to establish priorities for screening assessments and for grouping substances
to enable:
- consideration of the risks of alternatives/substitutes;
- development of multi-pollutant, sectoral risk management approaches;
and
- consideration of the risks of cumulative effects.
Many participants felt that proposed changes to chemicals management
in the European Union should be discussed during this Review. In particular,
consideration should be given to the registration and authorization of
substances as is contemplated in the European Union-REACH (Registration,
Evaluation, and Authorization of Chemicals) proposal.
Some participants suggested that CEPA 1999 be amended to explicitly mandate
the Minister of Health to conduct biomonitoring, in order to provide information
about which environmental contaminants are present in the human body,
and at what levels. Some felt that Health Canada should strengthen relationships
with institutions and public health groups that do research on human illness.
It was suggested that the total burden of chemicals in humans must be
better understood and considered when managing substances.
Some participants, particularly from the public health and environmental
sectors stressed that CEPA must explicitly require that assessments take
into account susceptible populations, including infants and children,
pregnant women, people with environmental sensitivities, and individuals
with allergies and respiratory ailments.
It was suggested that the CEPA National Advisory Committee (NAC) process
be strengthened, used to its full potential and become more transparent.
With the increased role of municipalities in dealing with air and water
quality, it was felt by some that they should be provided with a seat
at the CEPA NAC. Also, the current process for identifying participation
from aboriginal governments on the NAC should be made more representative
of aboriginal interests.
Some participants suggested that the administrative and equivalency agreements
in CEPA 1999 need to be clarified and used far more frequently in appropriate
circumstances.
Some participants suggested that the roles of traditional aboriginal
knowledge, traditional ecological knowledge in and community-based research
and knowledge be clarified in CEPA 1999. In particular, implementation
procedures need to be developed to clarify how and where these types of
knowledge will be used.
There were varying perspectives as to whether government or industry
should have the onus for either proving a substance is toxic or proving
it is safe, respectively. Some felt that there should be some type of
system among various industries for cost sharing the generation of data
for existing substances.
Concern was raised by some participants that substances which were determined
to be toxic in other countries have not been found toxic in Canada under
CEPA 1999.
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4.3 What was Heard on Tools for Taking Action
Various participants, particularly within the environmental and public
health sectors, stressed the fundamental importance of the precautionary
principle and pollution prevention as the foundation for sustained environmental
and human health protection within CEPA 1999. These participants generally
felt that much more needed to be done to operationalize both pollution
prevention and the precautionary principle in CEPA 1999. It was suggested
that there be more public disclosure on the contents of pollution prevention
plans.
Some participants, primarily from the industry sector, felt that the
term "toxic" is misleading, particularly where an assessment
determines that a substance has low hazard potential but high environmental
exposure. Some participants, primarily from within the environmental and
public health sectors, felt that a substance with a low hazard characterization
but with high exposure can still cause significant damage to the environment
and requires appropriate action. A few participants noted that some substances
that are assessed as having high hazard potential but low exposure may
not meet the criteria for a toxic substance under CEPA 1999. Many participants
did agree that listed substances need more context to explain why they
have been listed and require much better risk communication.
There was some support for enabling substances to be managed outside
of CEPA 1999 where a non-CEPA measure would be more timely and effective,
but only if: a transparent process is established for identifying the
selected risk management plan; at the beginning of the process, the Ministers
establish clear targets and spell out consequences for failure to deliver;
the Ministers remain accountable; transparent and effective tracking systems
are in place and the Ministers have clear and decisive means for responding
quickly when the other measures do not meet predetermined targets; and,
it is made clear when CEPA 1999 and non-CEPA tools can be used.
Many participants stressed that, when developing and implementing tools
for taking action, the departments need to ensure and facilitate effective
and timely dialogue with aboriginal governments and municipal governments.
Some participants noted that some of the regulatory authorities in the
current Act are too blunt to provide targeted backstops and do not encourage
effective incentives for "beyond compliance" performance by
industry. It was noted that backstop regulations should not disadvantage
industry leaders that comply with the Act, but rather should target the
"bad actors" that are not in compliance.
Some participants noted that CEPA 1999 should expand and optimize the
use of economic instruments by providing for more incentives and by enabling
the government to make better use of the polluter pays principle.
Some participants, primarily from the environmental and public health
sectors, felt that CEPA 1999 needs clearer and more comprehensive authority
to manage risks of substances in products over the full lifecycle of the
product. It was noted there was a particular need to strengthen the regulation
of new substances found in consumer products. It was also suggested that
more information on substances in products, including much better labeling
of products to disclose risks, is needed so that consumers can make informed
choices (the Product Registry in Denmark was raised as an example). It
was recommended that the federal government take a leadership role in
providing safe consumer products, particularly those used by children.
Some other participants cautioned that regulating all substances might
pose trade barrier issues and should be restricted to products where specific
adverse effects are observed.
Many participants, particularly from the industry sector and from the
natural resource user sector (e.g., farming interests) stressed the need
to consider competitiveness issues when taking action, particularly as
it relates to trade across the Canada-US border.
Some participants felt that there is no federal vision for a comprehensive
chemical policy. It was suggested that: Canada should examine the proposed
European Union REACH timelines for dealing with substances to assist in
measuring progress. Various participants suggested that more work is needed
for: finding safer alternatives for some chemicals; encouraging the application
of the substitution principle; and, promoting green chemistry.
Some participants criticized CEPA 1999 as being far too cumbersome and
slow in protecting the health and environment of Canadians (e.g., on polybrominated
flame retardants some of which have already been banned in the European
Union).
Some participants argued that the virtual elimination provisions are
ineffective and should be amended to provide a simpler process and timelines
for the virtual elimination of certain substances.
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4.4 What was Heard on Fair and Efficient Compliance
Promotion and Enforcement
Generally, participants were comfortable with the enforcement powers
in CEPA 1999. Most participants who addressed this topic agreed that the
enforcement provisions are comprehensive and flexible, allowing for an
appropriate range of enforcement actions and penalties to suit specific
situations. Some participants expressed the view that these powers must
be used much more frequently and consistently, and that enforcement statistics
must be made readily available to the general public. It was noted that
enforcement was needed to level the playing field between those that do
not comply with the law and those who do comply. It was felt by some that
those who do not comply undermine the rest of the sector.
Some participants suggested that the approach to enforcement in CEPA
1999 is not effective as CEPA 1999 is an enabling law that provides the
Ministers with too much discretion. There should be more prohibition provisions
built into CEPA 1999 similar to those in the Fisheries Act, including
a general prohibition on the release of toxic substances.
Many participants agreed that efforts to promote compliance with CEPA
1999 (e.g. the maintenance of the Environment Canada Enforcement website,
the publication of compliance and enforcement policy guidelines, direct
communications and engagement with the regulated communities and members
of the public) must be improved. In particular, participants stressed
the need for:
- more outreach to affected parties/regulated communities, especially
small and medium enterprises who often do not have the resources needed
to find and understand the law;
- more outreach to the public so that they better understand the law,
and in particular, the legal rights and responsibilities of neighboring
facilities;
- the use of plain language in all compliance promotion initiatives;
- much more clarity on how CEPA 1999 interacts/intersects with other
federal laws and with provincial, territorial and municipal laws; and
- better, publicly accessible databases on compliance rates and performance
measures.
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4.5 What was Heard on Information for Canadians
Participants generally noted that CEPA 1999 provides adequate provisions
for enabling the departments to generate and provide public access to
information. However, there was also general agreement that the departments
could do considerably more to improve access to easily understandable,
reliable and relevant information. In particular, the CEPA Environmental
Registry, the National Pollutant Release Inventory (NPRI) and the numerous
scientific and policy papers prepared by Environment Canada and Health
Canada must be made more accessible, made available free of charge, written
in plain language, and more user-friendly (especially the CEPA 1999 Registry).
It was suggested that the departments implement an e-mail subscribers
list that notifies people when specific changes have been made on the
CEPA 1999 Registry.
There was almost universal agreement by participants on the value of,
and the need to reinstate comprehensive State of the Environment Reporting
by Environment Canada, to add State of Health Reporting by Health Canada,
and to ensure that these two important initiatives are closely linked.
Participants noted that full, fair and timely access to information requires
comprehensive, regular, understandable (plain language) and credible signals
of the impacts from polluting activities on human health and environment.
State of the Environment and Health Reports are essential to help track
the results of risk management programs, to help identify changes that
warn of potential new threats, and to help shape environmental and health
protection policies and practices.
While many participants generally agreed that the provisions for the
NPRI are adequate, there was almost universal agreement on the significant
administrative complexities of the NPRI reporting requirements and on
the need to simplify these requirements for reporters. Some participants
noted that independent audits should be conducted to ensure users of the
NPRI, including the general public, that the NPRI data is reliable/accurate.
Users also require more context to help interpret the significance of
the data. Participants also tended to agree that the departments should
use NPRI data far more transparently and effectively to help assess the
state of the environment over time and to help shape policies accordingly.
Some suggested that the data submitted should be verified by a third party
to ensure quality control. Some participants expressed concern that Environment
Canada takes too long to publish NPRI reports. It was also suggested that:
agricultural sources be required to report under the NPRI; all substances
listed on Schedule 1 should be automatically reported on the NPRI by all
sectors releasing those substances; and, all sectors releasing NPRI substances
should be required to report those releases under the NPRI.
Some participants suggested that Act should require industry to publish
annual reports on environmental performance to encourage information sharing
and increase peer pressure for improvement.
Some participants suggested that the "whistleblower" and the
"citizens' civil suits" provisions in CEPA 1999 are not being
used to full potential because the public is not aware of them. These
provisions need to be better communicated to ensure that members of the
public are aware of these rights and that they can be used effectively
in appropriate circumstances. A few participants suggested that the "citizens'
civil suits" provisions might be too complicated to be used easily
by the general public.
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4.6 What was Heard on "Specific" Issues
The following is a list of non-prioritized specific issues/views raised
by one or more participants that do not necessarily fall within the ambit
of the themes discussed above.
- The scope of CEPA 1999 should be expanded to include the regulation
of pesticides.
- The title "Canadian Environmental Protection Act"
should be clarified to reflect its true scope and purpose. Either CEPA
1999 must expand its scope to truly reflect the full protection of the
Canadian environment (e.g., include natural resources, land use planning,
endangered species, etc), or the title should be changed to reflect
that the focus of the Act is primarily concerned with the assessment
and management of substances. One individual suggested that the word
"Environment" be replaced with "Ecological Integrity",
as follows: the "Canadian Environmental Integrity Protection
Act".
- Many participants were of the view that the five year review period
for CEPA 1999 is too short. Participants generally recognized the intensive
work required to conduct a review for all parties involved, appreciated
that it can be difficult to evaluate implementation initiatives across
a five year timeline, and recognized that in any event the government
could petition for amendments to legislation prior to the completion
of a review period. Proposals for extending the review period ranged
from seven to 10 years. Some thought that CEPA 1999 should not be reviewed
in isolation from other federal acts.
- Drinking water source protection, water quality in the Great Lakes
and lack of regulations to reduce pollution from emissions and wastes
was raised by numerous people.
- It was suggested that CEPA 1999 be used to:
- reduce the environmental and human health impacts from intensive
livestock operations;
- shut down irresponsible operators that contaminate the land;
and
- deal with chemical wastes that have been buried in permafrost
that is now melting.
- It was suggested that the Review of CEPA 1999 adopt the principles
set forth in the Earth Charter.
- Reference was made to a United Kingdom Royal Commission recommendation
that where synthetic chemicals are found in the tissues of humans and
wildlife, regulatory steps should be taken to remove them from the market
immediately.
- It was suggested that the "ecological footprint" analysis
was a very good tool for measuring the progress of CEPA 1999.
- Environmental emergency plans need to be better implemented.
- The New Substances Notification Program should take the European
Union chemical inventory into consideration and not just the US inventory.
- Care must be taken to ensure that the French and English versions
of the Act have the same meaning. It was pointed out for example that
the French statement of the Precautionary Principle calls for "effective"
measures while the English version calls for "cost-effective measures".
- It was suggested that the departments need to more carefully monitor
and evaluate voluntary initiatives.
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