Follow-up report to the Standing Committee on the Canadian Environmental Protection Act: annex

In response to the committee’s recommendations, Environment and Climate Change Canada (ECCC) and Health Canada (HC) have already made changes to make it easier for the public to obtain information on chemicals, including through the creation of information sheets and plain language summaries for assessed substances, risk assessment fact sheets, and the publication of risk assessments and risk management actions.

Summaries of data collected using information gathering provisions under CEPA are also made available to the public, and raw data is now being made available through the government Open Data portal.

The government also publishes a Chemicals Management Plan (CMP)^{Footnote 1} progress report twice a year to keep stakeholders and other interested parties up to date on the activities and programs related to the CMP. It reports on advances in major initiatives and highlights key activities related to the government's recent work under the CMP.

The government is also finalizing an approach to increase transparency in risk assessment activities which will require that companies now provide a rationale for confidential business information (CBI) claims and outline the types information that are generally not expected to be CBI. The approach will also detail a process whereby the government may disclose certain CBI in specified circumstances.

Regarding public participation and consultation, the government will publish, where appropriate, non-confidential summaries of notifications for higher organisms (e.g., genetically modified plants and animals). The publication of the summary will allow for a public comment period.

This recommendation will also inform the government’s work to reform CEPA.

that the preamble of CEPA be amended:

• to recognize a right to a healthy environment

• to mention the importance of considering vulnerable populations in risk assessments; and

• to recognize the principles put forward in the United Nations Declaration on the Rights of Indigenous Peoples

The government will take actions to strengthen procedural rights under CEPA—such as access to information and public comment periods—through improved implementation of CEPA and programs.

The government will begin publishing summaries of completed risk assessments of all chemical substances assessed under the New Substances Notification Regulations that are eligible for addition to the Domestic Substances List.

The government will also work with notifiers to voluntarily publish, where appropriate, non-confidential summaries of notifications for higher organisms (e.g., genetically modified plants and animals), allowing for a public comment period where the public will be invited to alert the departments to relevant scientific information and test data that may inform risk assessment. A summary of comments received will also be published.

In some cases, an external peer review process of the scientific risk assessment will be used in order to validate the risk assessments of genetically modified living organisms.

The government also commits to reviewing best practices regarding product labelling, cumulative risk and informed substitution internationally.

This recommendation will also inform the government’s work to reform CEPA.

The government is committed to advancing relationships with Indigenous Peoples, including through the development of the Recognition and Implementation of Indigenous Rights Framework with Indigenous Peoples.

This multi-year process requires a whole-of-government process, and will inform the government’s response to this recommendation.

Administrative agreements are working arrangements between the federal government and provincial or territorial governments or an Aboriginal people regarding responsibility for administering CEPA regulations. The agreements usually cover activities such as inspections, enforcement, monitoring and reporting, and do not affect any jurisdiction’s legal authorities.

The government supports the intent of this recommendation. The government will address this recommendation through additional policy and program actions that build on the existing CEPA provisions related to transparency and accountability for administrative agreements, including an annual reporting requirement.

The intent of equivalency agreements is to minimize the duplication of environmental regulations where another jurisdiction has a legal rule in place that will achieve the same environmental or health outcome as a CEPA regulation. CEPA requires the Minister of the Environment to report annually to Parliament on equivalency agreements.

The government supports the intent of this recommendation. The government will address this intent through additional policy and program actions that build on the existing CEPA provisions respecting the establishment of equivalency agreements.

The government agrees that CEPA is the principal statute for regulating toxic substances.

While the government protects health and the environment using numerous laws that govern chemical substances, including those in food, drugs, pesticides and various types of products, CEPA is the foundational legal authority that ensures that all new substances undergo a pre-market assessment of their potential to harm human health or the environment before their entry into the Canadian marketplace. However, to avoid regulatory duplication, CEPA does not apply in circumstances where another federal law provides for an equivalent pre-market assessment of both health and environmental risks. These acts and regulations are listed in Schedule 2 (new chemicals or polymers) and Schedule 4 (new animate products of biotechnology) of CEPA.

CEPA is also the key authority for managing the risks associated with existing substances. However, the government also has access to risk management tools under other statutes, such as the Canada Consumer Product Safety Act, the Pest Control Products Act and the Food and Drugs Act. When deciding how best to manage a risk that has been identified under a CEPA risk assessment, consideration is given to which act provides the most appropriate tools and which department has the best expertise to manage the identified risks.

The government explains all risk management decisions and has published a summary list of risk management instruments for substances that are concluded as toxic under s.64 of CEPA.

that CEPA be amended to provide the Ministers with the express authority to request the following information under section 71 for the purpose of assessing whether a substance is toxic or capable of becoming toxic:

• other information, such as methodology, data, models used, etc.
• samples of the toxicological tests and/or the other tests
• any other information relevant to the assessment of a substance

The government agrees that multiple sources of data are important in the risk assessment process.

The government conducts systematic surveys of information from other jurisdictions both when setting priorities for risk assessments and when conducting individual assessments. It relies on multiple information sharing arrangements, including formal data sharing agreements, consideration of data from other jurisdictions, scans of international activities and datasets, and discussions with multi-national companies, international supply chains and international stakeholders.

For example, the government has entered into a Memorandum of Understanding with the European Chemicals Agency (ECHA) which administers the Registration, Evaluation, Authorisation and Restriction of Chemicals  (REACH). Under this Memorandum, ECCC and HC rely on data sharing agreements to access confidential data that companies and consortia have provided to ECHA pursuant to REACH.

Where key data is not available through other means, CEPA authorizes ECCC and HC to issue notices to require industry to generate the data.

The government commits to continue to seek out and consider information from other jurisdictions, including the European Union (EU), when prioritizing, assessing and managing the risks posed by chemicals and living organisms.

The government recognizes the importance of improving Canadians’ access to the information they need to make informed decisions about the products that they use.

CEPA includes authorities to require the labelling of products. This authority has been used in various cases, such as the Products Containing Mercury Regulations.

Labelling requirements also exist under other federal acts that manage chemicals in consumer products (e.g., the Canada Consumer Product Safety Act, the Pest Control Products Act and the Food and Drugs Act).

The government commits to continuing to consider product labelling as part of the suite of available risk management tools.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

The government further commits to reviewing best practices regarding product labelling internationally.

The government agrees with the committee, and this recommendation will inform its work to reform CEPA.

In the interim, the government is finalizing an approach to increase transparency in risk assessment activities which will require that companies now provide a rationale for confidential business information (CBI) claims and outline the types information that are generally not expected to be CBI. The approach will also detail a process whereby the government may disclose certain CBI in specified circumstances.

that the National Pollutant Release Inventory (NPRI) be improved by:

• Removing the exemption for oil and gas exploration and drilling

Emissions from most oil and gas activities are covered by the NPRI. About 3,500 oil and gas facilities currently report under the NPRI each year.

Following the committee’s report, ECCC announced an expansion in NPRI reporting requirements, which will result in more oil and gas facilities starting to report for this year.

The exemption for exploration and drilling activities has been retained because emissions from these activities are typically too low to meet the NPRI reporting thresholds, and the activities themselves are time-limited, making them difficult to capture through an annual, facility-based reporting program like the NPRI. As part of ongoing program review processes, the government continues to assess new information on oil and gas exploration and drilling activities to determine if a re-consideration of reporting to the NPRI for these activities is warranted. If so, such changes would be considered using existing NPRI processes and using published decision factors, in consultation with NPRI stakeholders.

• Including separate NPRI spills reporting requirements in CEPA (amending sections 46 and 201)

• Requiring reports on facility operational performance on pollution prevention and reduction

• Including daily, weekly and monthly pollution data;

The government does not support this recommendation at this time. The purpose of NPRI reporting is to provide information on annual trends in emissions and releases. The NPRI is not intended to capture specific information on releases at a particular moment in time.

Reporting requirements under regulations, on the other hand, are often more detailed and require more frequent monitoring and reporting.

• Considering lowering thresholds for NPRI reporting; and

• Amending CEPA to enable public input to NPRI reports and requiring timely government response

The government recognizes the committee’s concern and supports the intent of this recommendation. Monitoring activities serve an important function in ensuring the ongoing effectiveness and continuous improvement of chemicals management.

The government commits to continue delivering its programs for environmental monitoring and biomonitoring, such as the Canada-Alberta Oil Sands Monitoring Program which provides comprehensive environmental monitoring data and information to improve understanding of the long-term cumulative effects of oil sands development. The two governments have been actively monitoring water quality, air quality and biodiversity in the Athabasca River basin since 2012. In the spirit of the committee’s recommendation, the two governments signed a memorandum of understanding in 2017 formalizing their shared responsibility to continue a long-term environmental monitoring program in the region, and to include greater Indigenous involvement in establishing monitoring priorities.

The Canadian Environmental Sustainability Indicators (CESI) program provides data and information to track Canada's performance on key environmental sustainability issues including climate change and air quality, water quality and availability, and protecting nature. CESI is the primary instrument to measure progress of the Federal Sustainable Development Strategy (FSDS) and responds to ECCC's legal obligations under CEPA and the Department of the Environment Act to report to Canadians on the state of the environment.

While implementation of this recommendation would duplicate many of the actions underway with respect to CESI and the FSDS, the government commits to consider the committee’s related recommendations on vulnerable populations, cumulative effects and hot spots as part of its stakeholder engagement through the CMP post-2020 process, which will inform how CEPA is reformed.

25. that CEPA be amended to require notice in the Canada Gazette for a 30-day comment period when a person submits a new substance or living organism notification under subsection 81(1) or subsection 106(1)
26. that CEPA be amended to establish a more open, inclusive and transparent risk assessment process that better enables public participation in the evaluation of new living modified organisms

The government recognizes the committee’s concern, and acknowledges the need to balance the private interest in confidentiality and the public interest in access to information.

The government publishes summaries of the risk assessments of new living organisms, and new chemicals and polymers where a risk management instrument has been imposed on the substance.

The government will take actions to strengthen procedural rights under CEPA, such as access to information and public comment periods, through improved implementation of CEPA.

For example, the government will publish summaries of completed risk assessments of all substances assessed under the New Substances Notification Regulations that are eligible for addition to the Domestic Substances List.

The government will also work with notifiers to voluntarily publish non-confidential summaries of notifications for higher organisms (e.g., genetically modified plants and animals), allowing for a public comment period where the public will be invited to alert the departments to relevant scientific information and test data that may inform risk assessment. A summary of comments received will also be published.

The government continues to engage stakeholders on additional program improvements to increase ‎transparency and public engagement as part of the CMP post-2020 process, including at the May 2018 Multi-Stakeholder Workshop.
These recommendations will also inform the government’s work to reform CEPA.

The government will take actions to strengthen procedural rights under CEPA—such as access to information and public comment periods—through improved implementation of CEPA and programs.

Public participation and transparency are important in the development of objectives, guidelines and codes of practice issued under subsection 54(1). However, not all comments should be publicly attributed.

The CEPA National Advisory Committee (NAC) is an important intergovernmental forum to ensure that all levels of government are informed about proposed actions under CEPA, and for avoiding duplication in regulatory activity among governments in Canada. The NAC includes representatives of Aboriginal governments.

In addition to consultations under NAC, ECCC and Finance Canada consult with Indigenous peoples when taking actions under CEPA, including when proposing regulations and when formulating objectives, guidelines and codes of practice.

The government is committed to advancing relationships with Indigenous Peoples, including through the development of the Recognition and Implementation of Indigenous Rights Framework with Indigenous Peoples.

This multi-year process requires a whole-of-government process and will inform the government’s response to this recommendation.

The government does not support this recommendation at this time.

The CEPA Environmental Registry publishes documents relating to the administration of CEPA, including: agreements (e.g., administrative agreements, equivalency agreements); CEPA annual reports; the CEPA Compliance and Enforcement Policy;  environmental protection alternative measures; fact sheets; codes of practice, guidelines and objectives; memoranda of understanding; notices of objection; plans (e.g. pollution prevention plans); significant new activity notices; and substance lists.

The CEPA Environmental Registry also contains a number of notices, orders and permits issued under CEPA, as well as current, proposed, or repealed CEPA regulations. It can also be used to search all public consultations that are in progress or that have been completed under CEPA.

Expanding it to all federal environmental legislation would increase its complexity significantly, and could be duplicative of other resources, such as the Species at risk public registry.

30. that section 22 of CEPA be amended to lower the threshold for bringing an environmental protection action from an allegation that the offence caused ‘significant harm’ to that it caused ‘harm’ to the environment
31. that section 22 of CEPA be amended to better enable public participation and accountability in the implementation and enforcement of CEPA by authorizing environmental protection actions, adjudicated as civil proceedings based on the balance of probabilities, in the following circumstances:
    • The Minister(s) have not undertaken a specific mandatory act or duty under CEPA; or
    • Any person or government body had violated, is violating or is reasonably likely to violate CEPA, including regulations, orders and other instruments thereunder
32. that the government consider authorizing mediation, interim orders, and specialized cost rules (whereby costs shall not be assessed against anyone bringing such an action, unless it is determined that the action is frivolous, vexatious or otherwise brought in bad faith) in order to ensure that environmental protection actions will be accessible to the public and so that Canadians may, in limited and appropriate circumstances, play a role in ensuring the application of CEPA without personally suffering damages
33. that CEPA be amended to include safeguards to ensure environmental protection actions are brought responsibly, including a mandatory 60-day notice of intent to bring a section 22 action, non-duplication of government enforcement actions, and provision for early dismissal of actions that are frivolous, vexatious or otherwise brought in bad faith
34. that the request for investigation provision in section 17 of CEPA be maintained, but that CEPA be amended to remove that as a prerequisite to bringing an environmental protection action

After close analysis of the committee’s recommendations relating to these issues, the government is of the opinion that the legislative changes recommended by the committee could fundamentally alter the way CEPA is enforced, changing the balance between civil and governmental enforcement.

For this reason, these recommendations are best addressed as part of a broader review of environmental enforcement.

The government shares the committee’s desire to ensure that air quality continues to improve.

The government is committed to continuing to take action to improve Canada’s air quality. The government is developing air pollutant emissions standards and corresponding regulations for the refineries industry. These will add to the existing Multi-Sector Air Pollutants Regulations that set mandatory national emissions standards to reduce air pollutant emissions from industrial boilers and heaters and stationary engines used by a number of Canadian industries, as well as standards for the cement sector.

The Canadian Ambient Air Quality Standards (CAAQS), established under CEPA, drive air quality improvements across the country and are reviewed on a regular basis for their adequacy to protect the environment and human health. The CAAQS are underpinned by management levels, which require progressively more stringent action by provinces and territories as air quality approaches the level of the ambient standard.

The AQMS is a comprehensive approach for reducing air pollution in Canada. It is the product of unprecedented collaboration among federal-provincial-territorial governments, industry, and civil society. Federal-provincial-territorial governments have clear roles and responsibilities in the implementation of the system, which enjoys significant support due to its collaborative nature. Mandating federal legally binding and enforceable air quality standards could undermine the effectiveness of this collaborative approach.

The government is supportive of strong drinking water standards nationally, and recognizes the need for continuous improvement.

Actions are being undertaken to strengthen the existing approach for the development of Guidelines for Canadian Drinking Water Quality, including through improved transparency of the program and a more robust priority setting process. The Guidelines are finalized and endorsed through federal-provincial-territorial government processes, which include representatives from all provincial and territorial departments responsible for the regulation of drinking water, as well as HC.

The committee recommends that:

• Environment and Climate Change Canada and Health Canada address the lack of understanding and persistent misinformation, that pollution prevention planning does not work because it is not a regulation, is not used against the most toxic substances and is not enforceable, which are affecting the use of the Part 4 provisions of CEPA;

The government agrees with the committee, and commits to publish the performance results of pollution prevention planning notices in a timely manner.

Measuring the overall progress and results achieved by an individual pollution prevention planning notice is important to evaluating the effectiveness of each notice in meeting its intended objectives.

The government supports the intent of this recommendation, and is committed to considering endocrine disruption when it assesses risks from substances. The current definition of “toxic” in s.64 of the act is sufficiently broad to enable the departments to account for these risks.

In addition to managing a substance by adding it to Schedule 1, CEPA provides various authorities for preventing risks from new substances that the Ministers suspect are toxic or capable of becoming toxic. The Minister of ECC has exercised these authorities by placing controls on a number of new substances suspected of endocrine disrupting effects. For example, Ministerial Conditions have been placed on a mixture of phthalates used as a softener for plastics to prohibit its use in toys and child care articles.

Significant New Activity (SNAc) notices are also used to allow the activity for which a new substance has been notified but to prevent any additional uses which would, for example, increase exposure. A SNAc has been placed on any new uses of curing agents for silicone sealants for commercial building and road construction due to concerns about endocrine disruption.  

The government is working to better communicate how it considers endocrine disrupting effects in risk assessments under CEPA. In the spirit of the committee’s recommendation, ECCC and HC recently published a fact sheet explaining how endocrine-related effects are considered in risk assessments. The government is also updating assessment reports and associated information sheets to highlight when endocrine effects have been considered and how this information informed the assessment.

The government maintains active scientific research programs that have contributed to the development of internationally-recognized test methods for endocrine disruption. This work contributed to the Oranisation for Economic Co-operation and Development’s (OECD) March 2018 publication, and routinely informs risk assessments carried out under CEPA.

The government will continue to improve its ability to consider endocrine disrupting effects in its risk assessments. Opportunities to improve the assessment of the endocrine disruption properties of chemicals are being discussed by both the CMP Stakeholder Advisory Council and the CMP Science Committee in 2018.

The government supports the intent of this recommendation and is committed to considering low-dose impacts.

The current definition of “toxic” in s.64 of the act is sufficiently broad to enable the departments to consider these impacts, as is evidenced by the fact that substances harmful at low levels have already been assessed as “toxic” under s.64, added to Schedule 1 the List of Toxic Substances, and regulated under CEPA. 

In the assessment of bisphenol A (BPA), for example, data on the impact of low doses on neurodevelopmental and behavioural effects helped support the risk characterization for human health.

The government also commits to continuously improve its ability to assess low-dose effects.

42. The committee recommends that section 3 of CEPA be amended to include a broad definition of the term “vulnerable populations.”
43. The committee recommends that CEPA be amended to require that the Ministers or their delegates, when determining if a substance is toxic, assess exposures of vulnerable populations and marginalized communities, including exposures during critical windows of vulnerability, with appropriate use of safety factors and that this section clarify that, for some substances, there may be no safe exposure thresholds.

The government supports the intent of these recommendations, and will consider them as part of its work to reform CEPA.

In the interim, it will continue to consider available information on vulnerable populations when conducting risk assessments.

For example, the assessment of BPA identified potential for exposures for infants, which then led to risk management actions to prevent that risk. The risk assessment for selenium identified the potential for elevated selenium exposure to certain populations.

When information is limited, risk assessors under CEPA apply conservative assumptions to ensure protection of human health, including the health of vulnerable populations. In accordance with precautionary assessment protocols, assessors may apply additional safety factors or make “worst case” assumptions regarding exposure. In the spirit of the committee’s recommendation, ECCC and HC recently published Fact Sheets explaining how precaution is applied and how human biomonitoring data are used in risk assessments.

The government is committed to continuously improving the consideration of vulnerable populations in the assessment and management of chemicals. As part of this broad commitment, the government also commits to develop, engage on, and publish under CEPA a policy on vulnerable populations, which will include a definition of vulnerable populations and the objectives of the program, including the framework for how the government considers vulnerable populations as part of risk assessments.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

The government agrees with the importance of addressing endocrine disrupting substances, and is committed to continuously improving its ability to do so and to keep pace with the latest scientific developments.

The government maintains active scientific research programs that have contributed to the development of internationally-recognized test methods for endocrine disruption. This work contributed to the OECD’s March 2018 publication, and routinely informs risk assessments carried out under CEPA. The government commits to adopt OECD test methods and thresholds in Canada, where possible and as they are developed, for future risk assessments under the CMP.

The government will also continue to use and develop available test methods for addressing endocrine disruptors. The government is exploring new approach methodologies, including in vitro alternative methods to detect endocrine activity at low doses. This type of method will also be useful for characterizing endocrine activity for mixtures of substances at low doses. These emerging approaches will improve priority-setting and risk assessments, and will enable a greater focus on substances with an endocrine mode of action at low doses.

The government will bring this topic to the CMP Stakeholder Advisory Council and the CMP Science Committee for discussion in 2018, and commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

The government supports the intent of this recommendation and commits to continuously improve biomonitoring in support of protecting vulnerable populations.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

The government supports the intent of this recommendation and will consider it as part of its work to reform CEPA. The government also commits to reviewing best practices regarding cumulative risk internationally.

The government recognizes the benefit of better assessing the risks from real-life exposures to a range of chemicals and acknowledges the complexity of the issue. ECCC and HC sought advice on cumulative risk assessment from the CMP Science Committee in 2015. They are also co-leading the finalization of an OECD Guidance Document on the considerations for assessment of the risks of combined exposure to multiple chemicals. This Guidance Document will inform risk assessments under CEPA moving forward.

In the interim, the government continues to consider emerging data and novel approaches for consideration in cumulative risk assessment further contributing world leading science and methodologies. It will also continue to carry out cumulative risk assessments for substance groupings where sufficient data and information exists, as was done for the Phthalates Grouping and for several metal moieties.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

The government agrees with the committee, and is committed to incorporating life-cycle analysis in risk management decision-making.

Life-cycle analysis is fundamental in terms of how to consider exposure and risk. It also informs the instrument selection process, by examining where in the life-cycle (during manufacturing or use or after disposal) risk management is best focused.

For example, in the case of mercury, various risk management instruments are in place which target different points in the substance’s life-cycle including industrial releases, products, and waste.

The government supports the intent of this recommendation and commits to the full implementation of s.75 of CEPA, which requires the review of decisions of other jurisdictions.

The government will continue to prioritize ongoing risk assessment activity in accordance with its Approach for Identification of Risk Assessment Priorities (IRAP). This Approach requires the systematic compilation and review of information from a large number of information sources. It also helps increase transparency around the process for identifying new priorities.

In order to facilitate access to information regarding assessment and reassessment priorities, the government commits to include the results of the IRAP process in the annual CEPA report to Parliament.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on prioritization through the CMP post-2020 process, which will inform how CEPA is reformed.

The government acknowledges the committee’s concern, but does not support this recommendation at this time. If implemented, this recommendation could result in less transparency and public participation at an important point in government decision-making than is currently provided. The current act allows stakeholders to provide comments, issue a notice of objection, or request a board of review regarding these decisions.

In some cases, substances are added to Schedule 1 of CEPA through section 90(1) of the act (i.e., without having undergone a priority substances list assessment, a screening assessment, or a review of another jurisdiction's decision) if, on the recommendation of the Ministers, the Governor in Council is satisfied that a substance is toxic under section 64. This provides for an expedited route for addition to schedule 1 if the circumstances warrant it.

The government supports the intent of this recommendation and will consider them as part of its work to reform CEPA.

Where assessments identify risks to specific populations, targeted risk management approaches are developed to reduce the risks for that group. For example, the proposed risk management approach for selenium and its compounds includes a focus on activities and exposures of potential concern for certain vulnerable populations.

Vulnerable populations will be a focus of a new strategy, which is currently under development, for HC’s public outreach program, which is used to educate Canadians on how to protect themselves from harmful chemicals. This will include environmental health guides, partnerships and other activities geared towards reaching parents and caregivers of young children and seniors.

Regarding cumulative risk, the government recognizes the benefit of assessing the risks from real-life exposures to a range of chemicals.

Assessing cumulative risks is challenging, however, and is being examined by many governments. ECCC and HC sought advice on cumulative risk assessment from the Science Committee in 2015, and are also co-leading the finalization of an OECD guidance document on the considerations for assessment of the risks of combined exposure to multiple chemicals. This Guidance Document will inform risk assessments and risk management under CEPA moving forward.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

57. The committee recommends that CEPA be amended to add a mandatory duty to assess alternatives as part of all screening assessments of existing substances.
58. The committee recommends that CEPA be amended to add a mandatory substitution test to the regulation of substances under Part 5, to ensure that decisions about how to regulate toxic substances are based in part on information about substitutes, with a goal of replacing toxic substances with safer alternatives.
59. The committee recommends that CEPA be amended to ensure that alternative assessments include the following aspects:
    • consideration of the opportunities, costs and feasibility of adopting and implementing safer alternatives
    • clear recommendations for the elimination, or limited use of a toxic substance
    • efforts to ensure transparency across the supply chain regarding key information and the process to be used in the development of alternatives assessments and
    • review of data on a consistent basis to ensure up-to-date and accurate information.
60. The committee recommends that CEPA be amended to mandate that the Minister prepare national safer alternatives action plans for substances for which reports on safer alternatives have been prepared.

The government recognizes the concern of the committee, and supports the intent of these recommendations. This is an emerging area internationally, and Canada is committed to collaborating with other jurisdictions to ensure that international experience helps inform the government’s emerging approach to alternatives assessment and informed substitution. The government further commits to reviewing best practices regarding informed substitution internationally.

Where possible, ECCC and HC assess substances with similar usage patterns or chemical properties as a group. Recent examples include substituted diphenylamines (SDPA) and flame retardants.

When ECCC develops or amends regulations with the intent of restricting or prohibiting toxic substances, the department takes into account the availability of economically and technically feasible chemical and non-chemical alternatives.  When no economically and technically feasible alternatives are available, a phase out period to allow industry to find and transition to alternatives may be considered.

This government is also exploring new ways—including consulting with experts and stakeholders—to support informed substitution. ECCC commissioned a study to identify international best practices and options for Canada and commits to publish the results of this work. ECCC and HC also engaged the CMP Stakeholder Advisory Committee in 2017 and the Science Committee in January 2018 on informed substitution.

The government commits to further consider the committee’s recommendations as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

The government agrees with the committee, and this recommendation will inform its work to reform CEPA.

The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP post-2020 process, which will inform how CEPA is reformed.

HC has determined that exposure to radiofrequency electromagnetic energy below the levels in Safety Code 6 is not dangerous to the public and the government has determined that no further updates to Safety Code 6 are required at this time.

ECCC is reviewing the scientific evidence provided to the committee on the effects of electromagnetic radiation on biota.

The committee recommends that the CEPA regime for animate products of biotechnology be amended:

• to provide clear rules on how and under what circumstances the right to introduce a new substance or organism is transferable

The government agrees with the intent of the recommendation, and ECCC is working to making additional guidance available on transfer of substances, products and intellectual property.

Existing guidance is described in the government’s March 1996 Advisory Note on new substances. This guidance is being revised to provide clearer direction. Special attention will be paid to the elements highlighted in the committee’s recommendations.

• to provide clear rules on the approval process for new uses by the party introducing the substance or organism and by others they may sell the substance to; and

Existing guidance is described in the New Substances Guidelines for Organisms. ECCC and HC are revising this guidance to provide clearer direction. Special attention will be paid to the elements highlighted in the committee’s recommendations.

• to change the name of Part 6 from Animate Products of Biotechnology to a term more widely used such as Genetically Engineered or Modified Organisms.

The committee recommends that CEPA section 155 be amended to clarify options in addition to removing a vehicle, engine, or equipment from Canada, including:

• bringing the vehicle, engine or equipment into compliance with the regulations prior to the expiry of the temporary importation period, such that it meets the emissions standards of its prescribed class and the importer has complied with all prescribed reporting and testing requirements
• donating the vehicle, engine or equipment prior to the expiry of the temporary importation period, subject to rules that would be set out in the regulations
• requesting an extension of the temporary importation period by submitting a request to the Minister justifying the extension (e.g., additional tests needed, close to bringing vehicle, engine, or equipment into compliance with regulations).

The committee recommends that CEPA’s notice of defect provisions be amended to expressly include:

• defects in compliance with emissions standards
• label deficiencies
• a requirement for companies to cover the cost of corrections
• an authority for the Minister to order a company to submit a notice of defect

The government agrees with the committee, and this recommendation will inform its work to reform CEPA.

In the interim, the government also commits to consider whether this issue could be addressed through regulatory amendments.

The committee recommends:

• that CEPA be amended to provide for a legislated framework and a promulgated regulatory regime on federal lands
• that the government develop specific objectives, guidelines and codes of practice on federal lands excepting aboriginal lands
• that the federal government initiate consultations with Indigenous peoples on the development of specific objectives, guidelines and codes of practice on aboriginal lands and promulgate a regulatory regime

The government commits to further engagement on a whole-of-government approach to addressing the environmental protection regulatory gap on federal lands with a focus First Nations reserve lands.

The government commits to returning to the committee once engagement has taken place with a path forward on addressing the environmental protection regulatory gap on First Nations reserve lands, including possible improvements to authorities in CEPA that may be used to enhance environmental protection on First Nations reserve lands.

The government recognizes that engagement with Indigenous communities, particularly with First Nations communities, is essential to determining the most appropriate path forward. The government is committed to working collaboratively with First Nations, on a nation-to nation and recognition of rights basis, to explore options to address the environmental protection regulatory gap on First Nations reserve lands.

The government acknowledges the committee’s concern, but does not intend to seek public comment on the Compliance and Enforcement Policy.

ECCC is updating this document, and anticipates publishing it within a year. The compliance and enforcement policy is an internal guidance document used by enforcement officers. Although it is intended for internal use, it is publicly available for transparency reasons and to increase awareness about how officers conduct their work. The compliance and enforcement policy does not impose obligations on members of the public, and as such is different than regulations which are developed through consultation and with a public comment period.

The government agrees with the committee, and this recommendation will inform its work to reform CEPA.

The government also recognizes that, if this authority is included in future amendments CEPA, it may not be appropriate to use when a foreign jurisdiction takes action that could weaken environmental protection.

The committee recommends that CEPA be amended to expand the government’s authority to incorporate by reference, subject to public notice and consultation, the following types of materials:

• formal instruments made under CEPA, such as guidelines and codes of practice
• internally generated government technical documents that specify: 1) how to quantify prescribed data to be reported, including factors to be used for quantification; and 2) how to conduct prescribed tests, measurements, sampling, monitoring, and analyses
• documents produced jointly by the Minister of Environment and Climate Change and/or the Minister of Health, with another minister or body in the federal public administration