Section 2: Issues5

Twelve issue areas related to the Canadian Environmental Protection Act, 1999 (CEPA 1999) have been identified through consultations in preparation for the Review.

CEPA 1999 provides a solid basis for continuing to protect the environment and human health in Canada, but opportunities for improving the Act and its implementation exist.

For each of the 12 issues, this Paper:

Addressing the legacy of substances that were put into use in Canada prior to the 1990s without rigorous environmental and health risk assessments is a major element of CEPA 1999.

Canada is not alone in confronting the legacy of existing substances. The OECD's High Production Volume (HPV) initiative is an effort to work with industry to gather basic toxicological information about the substances in greatest use. The European Union has been discussing the proposed "REACH" (Registration, Evaluation and Authorization of Chemicals) program for many years. If implemented, REACH would require manufacturers, importers and users of chemicals to register substances and provide basic information to governments. It also would require them to seek authorization before continuing to use substances that meet certain criteria. Notwithstanding these other initiatives, Canada is the only country with a legal requirement to assess all existing substances that were grandfathered that meet certain criteria.

Methods of assessing risks

Pathway 1 - Requirement to conduct a screening assessment:

Criteria for determining risks

Section 64 sets out three criteria which are used to determine whether or not a substance may present a harmful effect or a danger. A substance is assessed to determine if "it is entering or may enter the environment in a quantity or concentration or under conditions that:

  1. have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
  2. constitute or may constitute a danger to the environment on which life depends; or
  3. constitute or may constitute a danger in Canada to human life or health."

Pathway 2 - Reviewing decisions made by other governments:

Pathway 3 - the Priority Substances List (DSL) process:

CEPA 1999 does not specify the nature of the assessment to be carried out under any of the four main pathways. As such, the difference between a screening assessment and a DSL assessment must be defined by policy. DSL assessments would likely only be used in situations where considerably more public input is needed than will be the case for most screening assessments.

Pathway 4 - Recommend addition to the List in Schedule 1:

Courses of action following an assessment
CEPA 1999 authorizes the use of a wide range of tools to manage the risks from substances on Schedule 1.
Categorization of the Domestic Substances List
Conducting Risk Assessments
Adding Substances to Schedule 1
Risk Management
National Consistency

Five key areas related to the assessment and management of existing substances have been identified through consultations.

(i) Risk Assessment of Existing Substances
Issues

Accounting for Vulnerable Populations

Efficient Information Collection

Substances in Use on the Domestic Substances List (DSL)

The U.S. Toxic Substances Control Act gives the Environmental Protection Agency the authority to require industry to submit information on the quantity and use of a substance. The EPA uses this information to update its inventory of substances in commerce.

Stakeholder comments
(ii) Clarity in Communicating Risks
Issues

Criteria for determining Risks

Section 64 sets out three criteria which are used to determine whether or not a substance may present a harmful effect or a danger. A substance is assessed to determine if "it is entering or may enter the environment in a quantity or concentration or under conditions that:

  1. have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
  2. constitute or may constitute a danger to the environment on which life depends; or
  3. constitute or may constitute a danger in Canada to human life or health."
Stakeholder comments
(iii) Flexible and Focused Regulations
Issues

Stakeholder comments

(iv) Virtual Elimination Requirements

Provisions under CEPA 1999 support the virtual elimination of the release of substances that have been recommended for addition to Schedule 1 and are persistent, bioaccumulative, and are present in the environment primarily as a result of human activity and are not naturally occurring.

The Act requires that a Virtual Elimination (VE) List be established for these substances and that:

Issues
Stakeholder comments
(v) Managing the Risks from Substances on Schedule 1 Released from Products

The use of some products may lead to the creation and release of substances listed on Schedule 1.

Issues

In recent years, Canadians have called for increased attention to managing the risks from substances on Schedule 1 released through the use of a product or from the end-of-lifecycle treatment or disposal of that product.

Woodstoves - An example

Stakeholder comments

Under the National Pollutant Release Inventory (NPRI), the government requires facilities in Canada to report on the annual amounts of designated pollutants that they release into the environment or transfer offsite. Environment Canada collects this data and makes it available to the public on an annual basis.

As such, the NPRI:

CEPA 1999 allows the federal government to require emissions reductions from a facility or source in Canada where those emissions affect another country or risk impeding the fulfillment of Canada's commitment under an international agreement.

"air pollution" / "water pollution" means a condition of the air / water, arising wholly or partly from the presence in the air / water of any substance, that directly or indirectly

  1. endangers the health, safety or welfare of humans;
  2. interferes with the normal enjoyment of life or property;
  3. endangers the health of animal life;
  4. causes damage to plant life or to property; or
  5. degrades or alters, or forms part of a process of degradation or alteration of, an ecosystem to an extent that is detrimental to its use by humans, animals or plants.

CEPA 1999, sec. 3 & sec. 175

"New industrial chemicals notification and assessment schemes have been established in the majority of OECD Member states, creating a range of notification and assessment requirements. While they have been instrumental in reducing risks of chemicals to human health and the envi- ronment, the diversity of schemes and requirements between the countries brings complexity both to industry and government. One of the recommendations of the 1996 OECD Workshop on Sharing Information about New Industrial Chemicals Assessment was to encourage sharing of information about new industrial chemicals notification and assessment." (www.OECD.org )

Recognition of new substances notifications and assessments from other countries

The Australian Industrial Chemicals (Notification and Assessment) Act 1989 sets up a regime which allows for formal recognition of a notification and assessment program in another jurisdiction, where these are of an equivalent standard to those under their own Act. To import or manufacture a substance new to Australia but previously assessed in another recognized state, one must still notify and provide the required information on the chemical substances, including the assessment report prepared by the other jurisdiction. Australia is working towards recognizing Canada as a "competent authority" under this regime.

Prohibiting the Sale or Use of New Substances
Remedial Measures for Animate Products of Biotechnology

Under CEPA 1999, a permit system is prescribed for controlling the disposal of wastes at sea.Footnote 9  

Environment Canada recovers the administrative costs of processing permits and of monitoring representative disposal sites.

Canada's disposal at sea permit system has been in place since 1975, and meets Canada's obligations under the London Convention and its 1996 Protocol.

Requirement to Publish Permits in the Canada Gazette
Permit Terms

The authorities in CEPA 1999 to regulate vehicles, engines and fuels allow the federal government to control emissions from on-road vehicles and a wide range of off-road engines such as those for lawnmowers and bulldozers.

CEPA 1999 helps implement Canada's obligations under the:

Approximately 10,000 reports of unplanned, uncontrolled, or accidental releases into the environment are received by Environment Canada annually.

CEPA 1999 provides that

In these circumstances, the "enforcement officer" is in actual fact performing functions related only to environmental emergencies.

Compliance with CEPA 1999 is achieved through both compliance promotion and enforcement activities.

Sharing of information among Enforcement Agencies
Authority to rely on labels during hearings
Penalty provisions to support tradeable units systems

CEPA 1999 authorizes three types of economic instruments:

The program evaluation of Environment Canada's implementation of CEPA 1999 observed that

A 2004 report from the OECDFootnote 12 recommended that the Government of Canada increase the use of economic instruments as a matter of urgency for seeking affordable solutions and appropriate cost sharing to reduce environmental degradation.

Deposit refund schemes
Tradeable units
Regulations prescribing fees

Under Section 343 of CEPA 1999, a Parliamentary Review of "the provisions and operation" of the Act is required every five years.

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