2.7 Part 7: controlling pollution and managing wastes

CEPA 1999 Part 7 contains eight separate divisions. Each of these divisions is analysed in a distinct subsection below.

Expected outcomes

The evaluation identified one expected outcome for this division of Part 7:

1. Growth of vegetation caused by the release of nutrients is prevented/reduced.

Overview of the Act and its provisions

Nutrients are defined as substances that, if released to waters, provide nourishment that promotes the growth of aquatic vegetation. CEPA 1999 provides the authority to regulate nutrients in cleaning products and water conditioners that degrade or have a negative impact on an aquatic ecosystem.

Ministerial obligations

Division 1 of Part 7 of CEPA 1999 does not impose any mandatory obligations on the Minister of the Environment.

Major accomplishments

The expected outcome of prevention or reduction of growth of vegetation caused by nutrients is being addressed by the Phosphorus Concentration Regulations⁵⁷ originating under CEPA 1988 and later amended for CEPA 1999. These regulations limit the concentration of phosphorus in laundry detergents to 5% by weight expressed as phosphorus pentoxide or 2.2% by weight expressed as elemental phosphorus. No new measures or activities have been initiated under CEPA 1999.

Issues and challenges

The need for additional responses to address sources of vegetation growth has been identified within two Government of Canada reports, to which Environment Canada contributed:

• Nutrients and their Impact on the Canadian Environment⁵⁸ together with its companion report, Nutrients in the Canadian Environment - Reporting on the State of Canada's Environment,⁵⁹ were published in July 2001.The reports indicate that environmental problems caused by excessive nutrients are less severe in Canada than in many countries. This is in part due to protective measures implemented by governments in the last 30 years. Nonetheless, while successes have been realized, environmental and human health problems related to nutrients are evident across Canada.
• Draft Recommendations for a Federal Nutrient Agenda - Towards a National Nutrient Agendawere prepared in 2002. The draft agenda is built on a strategic framework that addresses the breadth of the nutrient issue in Canada and outlines strategic priorities for action. It also outlines future key steps that could be taken by the federal government to move the nutrient agenda forward.

Conclusions

The expected outcome of preventing/reducing the growth of vegetation caused by the release of nutrients associated with detergents is being achieved. CEPA 1999 is not currently considered an effective means for addressing new and additional nutrient sources or responding to the draft Recommendations for a Federal Nutrient Agenda.

Expected outcomes

The evaluation identified one expected outcome for this Division of Part 7:

1. Protection of marine environment from land-based sources of pollution.

Overview of the Act and its provisions

The Act provides authorities to issue non-regulatory objectives, guidelines and codes of practice to help implement Canada's National Programme of Action for the Protection of the Marine Environment from Land-based Activities. These provisions are intended to supplement the authorities that exist in other federal, provincial, territorial and Aboriginal government laws. This Division's purpose is also to assist Canada to meet its obligations under the United Nations' Convention on the Law of the Sea.

Ministerial obligations

The single Ministerial obligation, under Section 121(2), is conditional and has not been triggered.

Major accomplishments

Canada released its National Programme of Action for the Protection of the Marine Environment from Land-based Activities⁶⁰ in 2000. The National Programme of Action is a collective federal, provincial and territorial effort, for which Environment Canada is the secretariat. The program identifies both regional and national problems relating to the protection of the marine environment and outlines corresponding priorities, objectives, actions and strategies. Progress reports on activities under the program were prepared in 2001⁶¹ and 2004.

Through the Shellfish Water Quality Protection Program, Environment Canada is responsible for monitoring bacterial water quality in shellfish growing areas. Environment Canada conducts water surveys to determine the classification of coastal waters as to their suitability for the harvesting of molluscan shellfish. The surveys are based on the sanitary and bacteriological water quality conditions in the area. The Shellfish Water Quality Protection Program also promotes pollution prevention, remediation and restoration of shellfish growing areas. Eliminating or controlling pollution sources advances the health of both the shellfish industry and the marine environment and enables health officials to open more sections of the shoreline to shellfish harvesting.

As a partner in the Canadian Shellfish Sanitation Program,Environment Canada has recommended the classification of new shellfish areas (16 areas were classified in 2002 and 21 new areas in 2003. Now, more than 14 000 square kilometres of shellfish growing areas are classified as approved for the direct harvesting of shellfish. Additionally, several administrative improvements were made to the Canadian Shellfish Sanitation Program, including a memorandum of understanding signed in 2000 between the Canadian Food Inspection Agency, the Department of Fisheries and Oceans and Environment Canada. In 2003, the Canadian Shellfish Sanitation Program SP was audited by the European Union. The United States Food and Drug Administration audited the program again, in 2004. While these audits identified some issues, none was significant to limit export as related to shellfish sanitation.

Implementation of priority actions

Work has been initiated on three of the four identified priority actions:

1. Enhance coordination and consistency of marine environmental protection activities for land-based sources of marine pollution with other government departments and provinces - Both the National Programme of Action and the Shellfish Water Quality Protection Program are examples of effective coordination with other government departments and provinces.
2. Improve linkages and coordination with other ocean bodies, university groups and regional groups - On several fronts, the National Programme of Action has improved linkages and coordination through activities such as creating an information clearinghouse, launching the National Programme for Action Youth web site and participating in regional activities (e.g., the St. Lawrence Action Plan - a collaborative undertaking of the Government of Canada, the Province of Quebec and other partners, such as non-governmental organizations, universities, the private sector and local and community organizations). Canada also participates in the Arctic Council's Working Group on Protection of the Arctic Marine Environment to promote the implementation of the Regional Programme of Action for the Protection of the Arctic Marine Environment.
3. Leverage existing monitoring and shellfish water quality data to support program goals and objectives - Data from shellfish water quality monitoring are used in a variety of ways. For example, the National Programme of Action uses the data to demonstrate problem areas. Data are used as part of the Canadian Shellfish Sanitation Program by its partners, the Canadian Food Inspection Agency and the Department of Fisheries and Oceans. Data also are linked back to municipal wastewater effluent to help determine water treatment needs by municipality and therefore pollution prevention planning requirements.
4. Building of capacities and ensuring that objectives and targets for pollution prevention and management of marine-based sources of pollution are considered by other departments - no evidence was found on this action.

Issues and challenges

There are growing pressures on Environment Canada to provide advice and other services in new and expanding areas of protection of the marine environment, such as aquaculture, elements of Canada's Ocean Strategy and integrated management of freshwater and coastal marine environments.

Many of the marine environment protection programs have been operating for several years. However, strategic planning, including the development of implementation plans, timelines, priorities and resources, is not widely evident in the Marine Environment Branch.

Conclusions

The expected outcome of "protection of the marine environment from land-based sources of pollution" is likely to be partially met through continued implementation of the National Programme of Action and the Shellfish Water Quality Protection Program.

Protection of the marine environment is likely to be more successful with the development and approval of a comprehensive strategic plan. Emerging issues, such as aquaculture, elements of Canada's Ocean Strategy and integrated management of freshwater and coastal marine environments place increasing resource pressures on the Department.

Expected outcomes

The evaluation identified one expected outcome for this Division of Part 7:

1. Enhanced management of materials disposed of at sea.

Overview of the Act and its provisions^{Footnote xxii}

CEPA 1999 Part 7 Division 3 prohibits the disposal of waste at sea within Canadian jurisdiction, and by Canadian ships in international waters, unless the disposal is done under a permit issued by the Minister. A permit for disposal at sea will be approved only if it is the environmentally preferable and practical option. Incineration, beyond that of normal ship operations at sea, is banned except under emergency situations. The requirement for a CEPA 1999 permit also triggers an assessment under the Canadian Environmental Assessment Act.

Ministerial obligations

The evaluation found that all relevant Ministerial obligations are being satisfied:

• Section 128 - Environment Canada has consulted with the International Maritime Organization in the few instances involving disposal in international water. In each case, the departmental obligations to communicate and collaborate with the International Maritime Organization were met.
• Section 132 - Selected sites used for disposal/incineration at sea are monitored annually and recorded in the Annual Compendium of Monitoring Activities.⁶² This report is prepared each year as part of Canada's obligations under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention) and to the regulated community paying the monitoring fee.
• The other obligations pertain to administrative permitting requirements and are incorporated into the Disposal at Sea Regulations.⁶³ CEPA 1999 takes a precautionary approach to ocean disposal. It now includes a short list of substances that may be disposed of at sea. By contrast, CEPA 1988 and its regulations stipulated what could not be disposed of at sea. A second change is that CEPA 1999 now requires the creation of a National Action List that determines when wastes cannot be disposed of at sea in order to limit harm to the environment and human health.

Major accomplishments

CEPA 1999 introduced changes that reflect new international approaches to controlling disposal at sea. To ensure consistencies with CEPA 1999, Environment Canada replaced the Ocean Dumping Regulations (1988) with the following two regulations, which were published in August 2001: (i) Disposal at Sea Regulations and (ii) Regulations Respecting Applications for Permits for Disposal at Sea.⁶⁴

Canada continues to be an active participant at the international level in the area of disposal at sea. Canada ratified the 1996 protocol to the London Convention⁶⁵ in May 2000. When it comes into force, the Convention will further strengthen international requirements regarding ocean disposal practices.

Amendments to the Migratory Birds Convention Act, 1994and CEPA 1999 were proposed in 2004. When finalized, these amendments will protect seabirds from oily bilge released by passing ships and provide for increased fines and powers to detain ships suspected of polluting Canadian waters.

Implementation of priority actions

Work has been initiated on both of the identified priority actions:

1. Increase capacity to respond to anticipated requests for ocean disposal permits from offshore oil and gas sector - Capacity needs for responding to future requests for ocean disposal permits from the offshore oil and gas sector, particularly in the North, have been incorporated into the program's future planning.
2. Increase transparency of ocean disposal permitting system - Regulations Respecting Applications for Permits for Disposal at Sea contribute to ensuring transparency by clearly specifying information requirements for the application form for disposal at sea. The information is used to decide on the appropriateness of issuing a permit for sea disposal of a particular waste or other matter. The permitting requirements are detailed in the regulations, and the permits are communicated through Canada Gazette notices and the CEPA Environmental Registry.

Issues and challenges

The most significant challenge identified for the disposal at sea program pertains to its dependency on cost recovery revenue. Wide fluctuations in annual resources in the past have created problems with carry forward. This same problem is anticipated to occur again when there is a large volume of dredging in the North that will require extensive permitting and monitoring.

Conclusions

The creation and implementation of the new regulations contribute to the expected outcome of "enhanced management of materials disposed of at sea." More clearly articulated expected outcomes for this program area are needed. As is, it is not possible to determine if the expected outcome will be achieved.

Expected outcomes

The evaluation identified one expected outcome for these two Divisions of Part 7:

1. Reduction of smog-forming emissions from fuels, vehicles, engines and equipment.

Overview of the Act and its provisions^{Footnote xxiii} 

CEPA 1999 provides for a performance-based approach to fuel standards and allows for a range of fuel characteristics to be regulated to address emissions. Regulations may distinguish between different sources of fuels or the place or time of use of the fuel. There are also provisions for regulations to establish a "national fuels mark" that may be used only if a fuel conforms to specific requirements provided for by regulations.

Provisions in CEPA 1999 include the authority to set emission standards for on-road vehicles and engines. CEPA 1999 also includes authorities to set emission standards for vehicles and engines used in a variety of off-road applications, such as lawnmowers, construction and agricultural equipment, hand-held equipment and recreational vehicles.

Ministerial obligations

The evaluation found that all relevant Ministerial obligations are being satisfied:

• Section 140(4) - The Minister has formally offered to consult with provinces and territories, through the CEPA National Advisory Committee, on all regulations respecting fuels.
• Section 157(6) - The Transportation Systems Branch maintains a roster of current provincial and territorial contacts and forwards to them particulars of any notice of defect submitted by vehicle, engine and equipment manufacturers, importers and sellers.

Major accomplishments

In February 2001, the Minister published the Notice of Intent on Cleaner Vehicles, Engines and Fuels,⁶⁶ which laid out a 10-year federal agenda. This agenda recognized that substantial and certain reductions in the sulphur levels of gasoline and diesel fuels were necessary to achieve the potential emissions reductions from new vehicle emission control technologies. The agenda identified key areas of activity for Environment Canada over the 10-year period. Since then, the Department has delivered the following key outputs:

• Six new regulations have been made, and one additional regulation has been proposed (see Box 5). Enforcement of the new fuels regulations has been among the Department's highest priorities within its annual enforcement strategy over the past five years.
• In 2001, Environment Canada issued an information-gathering notice, under Section 71(1)(b) of CEPA 1999, on the use and releases of methyl tertiary-butyl ether (MTBE) in Canada. A report on the use and releases of MTBE in Canada⁶⁷ was produced, indicating that, as of 2001, only one company was producing MTBE, and that company expected to cease production of MTBE in 2002. The report also indicated that by 2000, only 2% of gasoline in the Canadian pool contained MTBE, and that by 2002, MTBE use in gasoline was projected to be 95% lower than in 1998. On the basis of this report, Environment Canada announced that it intended to monitor progress by means of reporting under the Benzene in Gasoline Regulations and Statistics Canada's database of imports.
• The Department has initiated work to develop new regulations for reducing sulphur in heavy and light fuel oils. It has completed background studies⁶⁸ and produced a discussion paper entitled "Setting Canadian Standards for Sulphur in Heavy and Light Fuel Oils."⁶⁹
• Demonstrable and documented progress has been made in the reduction in use of benzene in gasoline (see Figure 2). Primary fuel producers and suppliers have submitted reports to the Minister, in accordance with regulatory requirements. These reports indicate that all gasoline supplied in Canada in 2003 met the regulated requirements with respect to benzene concentration, with one exception. This regulation has contributed to the documented reductions of benzene concentrations in urban and rural areas by 47% and 32%, respectively, since 1998 (see Figure 3).
• The average sulphur content in gasoline nationally in 2003⁷⁰ was determined to be 136 mg/kg, representing a decline of 54.6% with respect to 2002 levels (see Figure 4).

Box 5 - Regulatory activity under Divisions 4 and 5

The Benzene in Gasoline Regulations,⁷¹ which took effect in July 1999, prohibit the supply and sale of gasoline containing more than 1% and 1.5% benzene by volume, respectively, and have been fully implemented.

The Sulphur in Gasoline Regulations,⁷² which took effect in July 2002, require that gasoline have an average sulphur concentration of 150 mg/kg as of July 2002, and 30 mg/kg as of January 2005.

Sulphur in Diesel Fuel Regulations,⁷³ which took effect in July 2002, set a maximum limit of 15 mg/kg of sulphur in on-road diesel fuel (starting June 1, 2006) that is produced or imported for use or sale in Canada and for on-road diesel fuel that is sold or offered for sale. The limit is 500 mg/kg until 2006.

In January 2003, new On-Road Vehicle and Engine Emission Regulations⁷⁴ were introduced to align Canadian emission standards with those of the United States Environmental Protection Agency. The new standards are being phased in, as of January 1, 2004, and will reduce the allowable emissions levels from new on-road vehicles by up to 95%.

In November 2003, new Off-Road Small Spark-Ignition Engine Emission Regulations⁷⁵ were made. The regulations apply to year 2005 and later model-year gasoline-fuelled engines found in lawn and garden machines (e.g., hedge trimmers, brush cutters, lawnmowers, garden tractors, snowblowers), in light-duty industrial machines (e.g., generator sets, welders, pressure washers) and in light-duty logging machines (e.g., chainsaws, log splitters, shredders).

In February 2005, Off-Road Compression-Ignition Engine Emission Regulations⁷⁶ were made. These regulations establish exhaust emission standards for compression ignition engines (i.e., diesel engines) used for off-road mobile applications. The regulations apply to diesel engines that are found in construction, mining, farming and forestry machines, such as tractors, excavators and log skidders, and would take effect for new equipment manufactured beginning with the 2006 model year.

The Department proposed amending regulations to reduce sulphur in off-road, rail and marine diesel fuel⁷⁷ in the Canada Gazette, Part I, on October 2, 2004. The proposed regulations will introduce the same 500 mg/kg requirement for off-road, rail and marine diesel fuels starting in 2007, reducing to 15 mg/kg in 2010 for off-road diesel fuel and in 2012 for rail and marine diesel fuel.

Issues and challenges

Environment Canada faces key challenges in ensuring that sulphur levels in fuel oils are reduced as intended.

In contrast to the decline in the level of sulphur in gasoline, the reported mass of sulphur content in all liquid fuels nationally increased by 7.7% in 2003 from 2002 values. The increases are mainly due to a 12.4% increase in the volume of heavy fuel oil produced and imported into Canada. Full implementation of the 10-year agenda on fuels and vehicles requires significant reductions in sulphur contained in fuel oils, as these oils currently contain 69% of the total mass of sulphur found in Canadian fuels.

A further challenge involves the lack of comparable national fuel oil standards in the United States (although the intended control levels would be equivalent to state-level provisions in the northeastern states). A major issue, however, is the apparent lack of full provincial support for federal action in this area. A number of provinces have indicated that they have programs in place under the Acid Rain Program to address emissions from facilities that use fuel oils. Industry stakeholders consider that provincial regulation would be more cost- effective and that a federal regulation would be redundant.

Conclusions

The expected outcome of achieving planned reduction of smog-forming emissions from fuels and on- and off-road vehicles is being achieved as a result of new fuel and vehicle regulations and related activities. Moreover, it is highly likely that the objectives of the 10- year agenda on fuels and vehicles will be achieved within the specified time frame.

Overview of the Act and its provisions

CEPA 1999 provides the Minister of the Environment with authorities to regulate or require pollution prevention plans for Canadian sources of international air and water pollution where another Canadian government is unwilling or unable to deal with the pollution source.

Major accomplishments

The Minister has not initiated action under the enabling powers provided in Division 6 or Division 7.

Canada made the commitment, however, under the Ozone Annex to the 1991 Canada - United States Air Quality Agreement to cap emissions of nitrogen oxides from large fossil fuel-fired power plants in southern and central Ontario to 39 kilotonnes per annum. In May 2002, the Ministers of Environment and Health made a determination (with respect to the authorities provided to them under CEPA 1999 Section 166(1)(b)) that Ontario's proposed regulatory strategy could lead to Canada exceeding the 39 kilotonne per annum cap and therefore violating the international agreement. The Minister of the Environment consulted with the Province of Ontario on this matter in December 2003, in accordance with CEPA 1999 Section 166(2)(a) and (b). Environment Canada is currently assessing Ontario's revised implementation plan.

Expected outcomes

The evaluation identified two expected outcomes for this Division of Part 7:

1. Increased harmonization of approach across Canadian jurisdictions.
2. A commitment to raise Canadian standards to those in the United States.

Overview of the Act and its provisions^{Footnote xxvii} 

This Division provides the authority for regulations governing the export and import of hazardous waste, including hazardous recyclable materials. It also includes authorities to:

• introduce regulations on the export and import of prescribed non-hazardous waste for final disposal;
• require exporters of hazardous wastes destined for final disposal to submit export reduction plans; and
• develop and implement criteria to assess the environmentally sound management of transboundary movements prior to issuing permits for export and import.

Division 8 requires the Minister of the Environment to publish notification information for exports, imports and transits of hazardous waste and hazardous recyclable material.

Ministerial obligations

The evaluation found that all relevant Ministerial obligations are being satisfied:

• Section 185(3) - This obligation has not been invoked, as the Minister has not refused to issue a permit under Section 185(2).
• The other obligations pertain largely to notifications and permits. The obligations are being met through the publication of Resilog,⁷⁸ the newsletter of Environment Canada's Transboundary Movement Branch.

Major accomplishments

The Transboundary Movement Branch has undergone a significant transformation. It has been reorganized and has developed and implemented various new planning and operational procedures and tracking tools.

Amendments were made to the PCB Waste Export Regulations, 1996⁷⁹ and the Interprovincial Movement of Hazardous Waste Regulations⁸⁰ to ensure compatibility with CEPA 1999.

The Department continues to implement the PCB Waste Export Regulations, 1996, the Interprovincial Movement of Hazardous Waste Regulations and the Export and Import of Hazardous Waste Regulations.⁸¹

Proposed new Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations⁸² were published in the Canada Gazette, Part I, on March 20, 2004. The proposed regulations will significantly revise the existing Export and Import of Hazardous Waste Regulationsobligations. These revisions are intended to adapt to evolving international obligations, to incorporate the new authorities under CEPA 1999 and to modernize the control regime established over a decade ago. In accordance with the "smart regulations" approach, the proposed regulations will also replace the existing PCB Waste Export Regulations, 1996.

Implementation of priority actions

Work has been initiated on four of the six identified priority actions:

1. Develop a performance measurement framework for the hazardous waste program - The 2004 Strategic and Operational Plan for the Transboundary Movement Branch identifies overall performance indicators for most, but not all, of the branch's objectives.
2. Develop and harmonize standards for the management of hazardous waste nationally, regionally and globally, and promote national harmonization of criteria for environmentally sound management of hazardous waste - Environment Canada has undertaken initiatives to help define and promote environmentally sound management of hazardous waste, including with the provinces, through the Canadian Council of Ministers of the Environment, regionally, through the Commission for Environmental Cooperation, and internationally, through the Organisation for Economic Co-operation and Development.
3. Harmonize selected standards with those in the United States - The proposed Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations will, when finalized, result in some aspects being better aligned with the approach used in the United States. Full alignment is not proposed, however, as Environment Canada considers the American approach less satisfactory in certain areas, including hazardous recyclables, in particular.
4. Create an e-tracking system for hazardous waste in partnership with the United States Environmental Protection Agency - Work on an e-tracking system has been initiated.
5. Explore opportunities to implement cost recovery within the hazardous waste program - The Transboundary Movement Branch explored cost-recovery options in the late 1990s, but has not done further work on the issue.
6. Increase the number of memoranda of understanding with the provinces regarding the control of interprovincial movements of hazardous waste - The Transboundary Movement Branch has not signed any new memoranda of understanding with the provinces.

Issues and challenges

The main challenge with respect to controlling hazardous waste is that responsibility for hazardous waste in Canada is divided between the federal and provincial governments. Provinces directly regulate internal movement, treatment and management of hazardous waste at disposal, treatment and recycling facilities. Environment Canada's direct control extends to only the 10% of hazardous waste in Canada for which transboundary movement is involved.

Additionally, there is growing pressure from industry and other government departments to fully harmonize with the United States' standards, both in areas under provincial jurisdiction (e.g., in the pretreatment requirements) and in certain areas where the United States' standards are not as stringent as international or Canadian standards (as in the case of recyclables).

Conclusions

The expected outcome to increase harmonization of approach across Canadian jurisdictions is likely to be met in part. Environment Canada has determined that the expected outcomes of increased harmonization across Canadian jurisdictions and enhanced support for environmentally sound management of hazardous waste can be promoted most effectively through collaboration with the Canadian Council of Ministers of the Environment, the Commission for Environmental Cooperation and the Organisation for Economic Co-operation and Development. In June 2004, following a major effort by the Department, the Canadian Council of Ministers of the Environment approved a strategic work plan to develop and promote a harmonized waste management framework for Canada. Achievement of the expected outcome will thus be contingent on progress made by the Canadian Council of Ministers of the Environment.

The expected outcome of raising Canadian standards to those of the United States is likely to be met in part through the proposed Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations. These regulations, when finalized, will increase alignment between Canadian and American rules on many issues. An exception is the case of recyclables, which the United States does not regulate, but where the proposed regulations in Canada align with broader Organisation for Economic Co-operation and Development decisions.