:
Thank you, Chair, committee members. Thanks for having me present first at the CEPA review; I take that as a compliment.
My name is Kapil Khatter. I'm a family physician and I'm working with Pollution Watch, which is a joint project of Environmental Defence and the Canadian Environmental Law Association.
CEPA is the backbone of Canadian environmental legislation. The act brings to one place the powers that deal with most of Canada's significant environmental problems: air pollution that causes respiratory illnesses; persistent organic pollutants that are building up in our bodies; greenhouse gases that can lead to climate change; metals like mercury that are contaminating our fish, our wildlife, and ourselves. CEPA gives the federal government the powers to regulate any chemical, air pollutant, or greenhouse gas deemed to be endangering our health or the health of our environment. It offers the government a range of tools to reduce pollution and prevent harm.
I think the main questions before us today are how broken is CEPA and how much work will it take to repair? We would argue that CEPA is broken and in fact that it was never really built to work well. It was a good attempt and it doesn't need to be shelved, but there are some significant changes that need to be made if CEPA is to be protective of our environment and of our health.
For that reason, we believe the committee needs to undertake a comprehensive review, hearing from a diversity of sectors and traveling where needed. The committee should see this review as an inquiry into the state of pollution in Canada, into the state of our health, and an investigation of whether CEPA has done its job promoting clean air, clean water, and clean food.
There is ample evidence to suggest that Canada is failing to meet its environmental challenges, and falling behind internationally. According to a recent study of OECD data, Canada ranked 28th out of 29 OECD countries in emissions, 29th out of 29 in volatile organic compounds, 27th out of 28 in sulphur oxides, 26th out of 28 in nitrogen oxides, etc. According to the Ontario Medical Association, air pollution in Ontario now causes 1,900 premature deaths, 9,800 hospital admissions, and 13,000 emergency room visits, costing that province alone more than $1 billion per year in hospital admissions and worker absenteeism. More than 4 billion kilograms of air pollutant releases were reported by Canadian industrial facilities in 2003, a number that has been on the rise lately. Canada's aggregate greenhouse gas emissions have increased more than any other G-8 country in the past decade, up 19% since 1990, until 2001. A recent comparison of Canadian and U.S. industrial sites in the Great Lakes found that per facility we emit 93% more potentially cancer-causing air pollutants and almost four times the pollutants that can cause reproductive or developmental harm.
The United States has legally enforceable national ambient air quality standards and water quality criteria that are enforceable, whereas Canada does not. They have strong regulations and agreements with companies to phase out some of the most persistent and toxic chemicals, the most problematic chemicals right now, like PFOS flame retardants and stain repellents, while we are still trying to finalize our assessments. The United States has a comprehensive program to test for body chemical levels. We don't even know how much lead our children are being exposed to right now.
We have done a good job under CEPA of some things, of screening the substances in use in Canada to determine which are most persistent and bioaccumulative, in the hopes of doing something about them. But while we've been assessing chemicals, the Europeans have created REACH--the registration, evaluation, and authorization of chemicals--a program that will keep problem chemicals off the market by ensuring that everything in use has adequate safety data. Our present CEPA doesn't even dream of doing that. Since Europe is the largest chemicals market in the world, it is worth asking Canadian companies who are meeting the standard for the European market why they couldn't meet the standard here at home.
CEPA fails to require that problems get fixed once we find them. It lacks mandatory timelines to get the job done, with the result that even once we know that a chemical is a serious risk to the environment or to human health, government processes to regulate the chemical can be slow and ineffective. CEPA doesn't directly apply to the significant number of chemicals in consumer products. Many products, we are now learning, contain unacceptably high levels of toxins, and CEPA puts the burden on the government's shoulders to show that chemicals or products are harmful, rather than on manufacturers to assure us that what they are selling won't harm us.
The act allows us to virtually eliminate the worst actors, to do away with the toxic and persistent chemicals. But virtual elimination as written in the act doesn't work and the process needs to be streamlined. Only one substance has made it onto the virtual elimination list over the life of the act.
We need a CEPA that will eliminate the persistent organic pollutants that are accumulating in our breast milk, a CEPA that will stop air pollution from causing asthma attacks, a CEPA that will prevent metals like mercury from contaminating people and wildlife, and a CEPA that will rescue the Great Lakes and help to rebuild the ecosystems there.
To be fair, what we know about pollution has changed a lot since 1999. We know better now that children are more vulnerable, and have found that lower doses of chemicals are more dangerous than we thought. We know that the economic loss and health care costs due to air pollution are well above the costs of regulating air pollution through CEPA. We know that mercury and persistent chemicals are transporting to the north, contaminating country food and the bodies of our first nations.
It is now time to look at CEPA through these new eyes and to modernize it to meet these challenges. The question is not whether the processes started under CEPA 1999 have been going well, or whether we've done the categorization and assessments we intended to do. The question is has CEPA been successful in keeping us from polluting our country with persistent chemicals, toxic metals, and air particulates? Has CEPA protected large population areas, like the Great Lakes basin, from the risks from environmental contamination? For us, and for our asthmatics, our learning disabled, our cancer victims, the answer is no.
The act can be complex, as the problems are complicated, and we understand you will have many questions. There are many experts out there to help answer these questions—health organizations, industry associations, scientists, first nations groups, medical officers of health, children's advocates, and international experts knowledgeable about other jurisdictions. To do a comprehensive review, as both the legislation and the recent throne speech promises, you will need to hear from these sectors. It is the only way you can learn well what the problems are and what kinds of solutions are needed.
Thank you very much.
[Translation]
I apologize, I did not have enough time to get my presentation translated.
[English]
I got the notice and invitation only yesterday. So I have provided it in English.
[Translation]
French-speaking MPs can ask their questions in French but I will answer in English.
[English]
Time today, unfortunately, is not sufficient for me to provide a detailed analysis of CEPA's strengths and weaknesses, but I hope a cursory review of some of the long-standing issues that the environmental community has had with the act will provide context to committee members who might otherwise be discouraged from undertaking a comprehensive and substantive review.
It is the broadly held view of Canada's environmental community, supported by pollution data, internal assessments at Environment Canada, and our nation's abysmal environmental performance ranking among OECD members, as Kapil recently shared with you, that implementation of CEPA is failing in key areas and is in need of a substantive, comprehensive review if it's to serve its purpose to protect the environment and human health. Pollution is up almost across the board in this country.
The following five key areas suggest the committee would be ill-advised to relegate the current review to a simple bureaucratic tinkering of the act's mechanics. A more substantive review is needed.
First of all, pollution prevention is defined in the act as the “use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health.” Pollution prevention is legally Canada's priority approach to environmental protection.
Unfortunately, application of the act to date has done little to avoid or minimize the creation of pollutants in favour of end-of-pipe controls to capture pollutants for storage, incineration, transfer, or landfill. Although the government has requested flexible rather than prescriptive pollution prevention plans for major industries, we are aware of only five plants that have plans in place, and none that has implemented its pollution prevention plan. In the absence of honest efforts to reduce the production of toxic pollutants, air and water transfers are on the rise based on data made available through the NPRI, the National Pollutant Release Inventory.
Monitoring and enforcement direction is needed to realize effective pollution prevention plans that will foster the reduced use and production of toxic substances rather than transferring them from one medium to another. Industrial engineering resulting from the application of pollution prevention plans will enhance Canada's long-term competitiveness and productivity in the continental context.
On the issue of international agreements, I'd like to point out that CEPA has the potential to significantly reduce the use and release of toxic substances if the progressive principles in the act are implemented. As Canada moves to reassert its international presence, it is important to understand where CEPA comes from and how the act relates to the global policy framework for regulating toxic substances generally.
Important concepts such as virtual elimination and the precautionary principle that eventually found their way into CEPA's lexicon originated, in the continental context, in large part in the Canada-U.S. Great Lakes Water Quality Agreement as part of a cooperative binational effort to protect the world's largest freshwater ecosystem. Despite having roots in the Great Lakes Water Quality Agreement, CEPA has failed to protect the Great Lakes from toxic emissions of all sorts across the Great Lakes basin.
Beyond the North American context, Canada has ratified important global agreements such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the Stockholm Convention on Persistent Organic Pollutants, and the Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
CEPA should include provisions for meeting international commitments for protecting the Great Lakes--i.e., the shared stewardship of more than 20% of the globe's accessible surface water--and other international agreements intended to regulate the trade and movement of hazardous substances. To date, it simply is not supporting those initiatives.
On the issue of toxics management, current management approaches for toxic substances have proven time-consuming and ineffective, and the act's focus on toxic substance use, manufacture, and release means the toxic substances contained in consumer products are ignored. Landfilling of light switches containing mercury, for example, would not be addressed. Other jurisdictions, such as Boston, have successfully implemented simplified approaches that are more comprehensive in reducing toxic emissions.
While CEPA prescribes timelines for categorization of substances, the act does not outline a timeframe for completion of the assessment nor what is considered adequate data to determine toxicity. Furthermore, the use of section 71, which requires data from industries, has not been fully utilized to assist the government's efforts in making a determination of toxicity. The government's voluntary approach to data collection and industries' confidentiality concerns have handicapped the government's ability to effectively determine toxicity.
This ambiguity critically undermines the development of management tools for toxic substances. We are unaware of any plan of action developed by Environment Canada and Health Canada to screen level risk assessments on substances found to meet criteria for categorization.
CEPA should capture consumer products and be amended to enhance the burden of proof on industry to demonstrate that commercial products are safe for use and disposal. It would seem that, as it stands, the bureaucracy is not equipped or is ill-equipped to do the full categorization on its own.
On the issue of the precautionary principle, once a substance has been declared toxic, it usually takes another three years to have a risk management strategy instrument in place. Further, waiver and time extensions may be granted. Timelines for development of management strategies are far too long to support a precautionary and preventative approach to environmental stewardship within CEPA.
Enforcement of the act has been its biggest failure. For years the Office of Pollution Prevention relied on voluntary programs to foster action, with the explicit commitment to use the act's regulatory backstop as needed. Despite the broad and accepted failure of those voluntary programs.... I'm thinking here of such programs as the accelerated reduction and elimination of toxics, known as ARET, some years ago; bilateral environmental performance agreements with industry; and the past environmental leaders program. Those programs have all failed and yet no appetite exists for regulation. CEPA implementation must include regulatory intervention where voluntary initiatives are known to have failed.
We understand that Environment Canada's current capacity to oversee a review is compromised by recent structural changes. However, a relatively small redirection of resources would allow the department to draw on its existing expertise to realize the review necessary to protect human health and the environment.
Members of CEN Toxics Caucus have been tracking this file and have been formally consulting with decision-makers over several years in the evolution of the domestic substances list, the priority substances list, the NPRI, and on several key delegations to international treaties, such as the POPs Treaty, the Basel Convention, and the Great Lakes Water Quality Agreement. I encourage the committee to use the CEN in its pursuit of expert testimony of a more substantive nature.
And I invite your questions.
:
My history doesn't go back to 1999, unfortunately.
One example of each, for instance, would be that when virtual elimination was put in the act, I think we would have said right at that time that the need for there to be what's called a level of quantification...that you can't do virtual elimination until you figure out what the lowest possible dose is that you can measure.
We knew right from the beginning that that was going to be a barrier to actually getting virtual elimination, and it turned out to be a barrier. We've only had one substance that's ever been listed, and it's only listed because we don't really produce or manufacture it any more in Canada.
Besides that, in terms of new information, I don't think there was the same push in 1999 to recognize vulnerable populations that there would be now. For instance, over the last years, when we've looked at studies of lead in children, since we've taken lead out of gasoline, what we have found is that each time someone does a study that looks at children and lead, they figure out that the dose of lead that causes problems in children is actually lower than what we thought it was; it keeps going down tenfold. What we know now is that we need to be regulating, based on vulnerable populations like children, like first nations, who are getting high exposures, for seniors rather than for adults, and the legislation needs to directly reflect that. To a certain degree, it has started to happen without the legislation changing, but the legislation needs to keep up with the kinds of changes that are happening in regulations.
:
Thank you, Mr. Chairman. I will share my time with my colleague, Mr. Lussier.
I have a feeling, this afternoon, that we are walking into a lion's den. We are asking our witnesses to come up with recommendations but, for us, CEPA is a somewhat distant memory. I believe it would have been useful to set up a preliminary information meeting with the officials. It could have avoided this situation.
I have a few questions for Mr. Khatter. The situation that you have summarized is quite clear : Canada is 29th out of 29 for volatile organic compounds, 27th out of 28 for sulfur dioxide, and 28th out of 28 for carbon monoxide.
However, we have legislation about this. Since I was first elected, in 1997, we keep passing all manner of legislation, whether it be the Species at Risk Act or the Canadian Environmental Assessment Act, but their implementation is often than hindered by a lack of resources and money.
If the government had provided the required budgets to implement the Act, what would be the results for Canada in the various categories you have mentioned today? As far as you're concerned, is funding the problem, or the Act itself or both?
:
I would suggest a stronger, tighter Great Lakes Water Quality Agreement. That is an international agreement that's been in place for years and it has roots in the Boundary Waters Treaty of 1909. So simply referencing within the act its commitment to realize those other international obligations would go a long way, I think.
Maybe I'll address your point, Monsieur Bigras, on the generalities of today's presentation. We understood the purpose of today's presentation was simply to provide a general view of whether or not we thought the act required a substantive review at this time. There simply hasn't been enough time to prepare for explicit, detailed recommendations on how the act should be amended.
That said, I'd like to address a question from Mr. Godfrey earlier, which was what specifically is needed. They're similar questions, and I would encourage the committee to review what the committee came up with in 1999. The Standing Committee on Environment and Sustainable Development came up with recommendations for a hugely amended act, most of which were not implemented. At the same time, I think it may serve to give you a good update on what some of the environmental priorities were at that time, because many of them haven't changed.
Looking back, if I may take this opportunity, at what we saw coming up the pipe in 1999 and we now know to be the case, I think endocrine disrupters would probably be at the top of the list. It was well known at that time they were impacting development. The World Wildlife Fund was leading a huge international campaign and tried to get this committee--well, different members, a different structure of this committee--to review endocrine disrupters. They did not make it into the act adequately and we now know them to be a major source of environmental concern.
:
Thank you, Mr. Chair, and thanks to our guests.
Today was meant to be part of our scoping out of how to go about studying this act, because we can go down many paths with such an important piece of legislation. From your presentations, it seems pretty clear that there's a certain condemnation, not just of what's in the act itself, but also of the application of the act.
I wouldn't mind some comments, and want to get specific, to figure out how this committee is going to divide its time between a review of the structure of the act and where there are faults, or things that work well, in it. But I think even more important is its application. This city knows that a bill can be perfect, but once the act is applied imperfectly the result is negated.
Dr. Khatter, I'll start with you. When looking at something like smog as an example, is it your view on the health effects that the act itself has the ability to address the issues of smog in our cities right now?
:
Thank you, Mr. Chair. I too would like to thank the witnesses for being with us today. As has been mentioned by, I believe, two different members, the main purpose today is to get some advice from you on the procedure of the CEPA review. As a government, we recognize that we have a responsibility and a requirement to have a CEPA review. We are over a year late in doing it. The last Parliament, unfortunately, did not do it. It was supposed to have been done effective March of last year.
So there is that requirement. I also want to begin with correcting a comment made, I believe by Mr. Silva, that it could be done in two to three months. Mr. Stack, you commented with respect to that—actually, both of you did—that you did not think that was feasible. I'm not sure where that two-to-three-month idea came from; it did not come from this committee. That's just a clarification.
It is a priority of this government to have as its first order of business the hope that there will be a CEPA review, and I'm very pleased that we are as a committee going down that road to do this CEPA review—for a number of reasons: number one, that it is a requirement; number two, that it's the right thing to do.
As I start off my comments, we're looking for your guidance and recommendation in doing a CEPA review that is effective, thorough, and timely. We have one year to do it. We have to make recommendations within a year now.
Dr. Khatter, you made some comments in the brief you provided to each of us—I think it was during the recommendations—in which you recommended that the committee should travel. I'd like you to comment on that, as to what extent. You made comments that we should inquire into the state of pollution during that travel, I believe, so that we get a complete picture of the situation.
So what is your advice on travel? Where should we be travelling? How much should we be travelling? Again, in the timing of this, if we think we have to have recommendations forwarded to the House in a year, then thinking back, when should the travel happen? What are you recommending?
You also made recommendations, I believe in bullet point number three, that
CEPA should mandate virtual elimination of substances meeting the...(PBT) criteria and clarify and strengthen the definition of virtual elimination. As a starting point, Canada should achieve virtual elimination of all releases of carcinogens to the air and water by 2008.
So if we have recommendations that are presented to the House within a year from now, and then the House has 120 days to deal with them, that would give us approximately a year to incorporate those recommended changes. Is one year realistic, or do you believe that in that timeline you'd like to stay with that 2008 date?
:
I've gotten confused now.
I think we're looking for the committee to do the job they feel they need to do, in terms of how long it takes. As you said, there is a one-year legislative timeline.
We think the travelling is important; we think a comprehensive and thorough review is important. But at the same time, we as well want to see a report come out of this Parliament and we want to see you be able to make your timelines and get the job done.
In terms of travel, I think part of travel is being able to go to the people and not have to always bring the people to Ottawa. As well, it is being able to see in this vast geography the kinds of realities that are out there, such as by looking at first nations communities both in the south and in the north, because they are a particularly vulnerable group, and northern first nation communities have very different issues from those some of the southern first nation communities have.
Regionally, going out to Sydney in the Maritimes is going to be an interesting fact-finding exercise--or to Alberta, with the oil and gas industry.
So I think partly it's getting to see the reality on the ground, and part of it is being able to go to the people in various areas to get a sense of how pollution is impacting them, both in terms of their environment and in terms of their health.
Could you go back again to talking about the timeline and the virtual elimination...?
Thank you both for your presentation today. I find it very informative.
It seems to me that we keep coming back to one common theme under CEPA, which seems to me a complacency of enforcement more so than the act itself. The act may need revision, but I think what we're really talking about is getting rid of the complacency on behalf of government. That may well involve more investment; it may well involve some structuring. But this seems to be what we keep coming back to.
I would like to ask a more pointed question about the act, and hopefully you can help me understand this. How do you consider that CEPA could work with other legislation? I speak to things like the Pest Control Products Act, the Fertilizers Act, the Feeds Act, the Seeds Act, the Health of Animals Act, the Fisheries Act, the Species at Risk Act, the waters act, and so on. Since this seems to be like a backbone act, how do you think it can work with these other acts that kind of tie in with it, if it was properly enforced?
:
What we're trying to do is scope things out here. What I'm getting so far, just to repeat a bit, is there's the act versus the enforcement resources, the timelines. It would be very helpful if you would parse that out for us.
There's another set of issues. They are we-told-you-so issues; that is to say, they are things we were told about back in 1999, and without getting into a complete revisitation of second reading and all the rest of it, they are things that, although rejected for a variety of reasons, are either still true or even more true. That's a set of issues; that's different from enforcement. We need to know what those guys are, because we're not actually revising the act as such. We're not doing clause-by-clause study; we're coming up with a general set of directions for the government.
Then there are major issues, as you outline, on which to some degree you suggest--this is in the nature of a question, and I'm thinking particularly of Dr. Khatter--that we look to other jurisdictions. Examples are flame retardants or the REACH provisions of the European Union. In this third category there are presumably well-developed international best practices, so you don't even have to reinvent this thing. These are big markets; they've already done it, and we're behind. For those, again, we need to know which parts of the act apply. I think that'll help us because it'll also give us a level of comfort that we're not sailing off into the great beyond.
Here are my questions. First of all, I know you're interested in our having a Great Lakes focus, but how can a Canada-wide act get geographically specific when the issues raised, whether they have to do with water or air or anything else, really could be found anywhere? That would be my first question.
:
Thank you, Mr. Chairman. It is a pleasure to talk with the witnesses today. This is the first time I sit on a committee. In my previous life, I worked a lot on environmental issues, especially relating to the disposal of organic matter at the municipal and farm levels.
However, I have the feeling that this is not one of your concerns, especially relating to the Great Lakes where there is a lot of pollution caused by organic matter. Do you believe that the present legislation is adequate to deal with the pollution of the Great Lakes caused by organic matter? That would be my first question.
It would seem that toxic substances are your main concern and that you want the Canadian Environmental Protection Act to deal mainly with toxic substances. You have underlined four major deficiencies of the Act. First, it does not deal with chemicals. Then, there is the issue of the Great Lakes. And, finally, you regret that we do not try to eliminate toxic substances and that industry is not being made responsible for that.
As was mentioned by Mr. Bigras, there is more advanced legislation in Europe and in the United States. Do you think we should try to move in the same direction?
Those are my two questions : the issue of organic compounds in relation to the Canadian Environmental Protection Act, and the issue of toxic substances. Would you recommend that we move squarely towards systems or programs such as REACH?
:
Mr. Chairman, I forgot to ask a question about the various models, especially the American and European models.
If I am not mistaken, the US Senate amended the American model in July 2005. In your brief, you say that Democrat senators brought measures which tend to bring the American model closer to the European one. They have not yet completely adopted the European model but they want to make their system more and more similar to the European system. You also stated, Mr. Khatter, that we should study closely the European model and, if possible, amend our legislation according to that model.
Generally speaking, we tend to adopt standards that are closer to what they do in the US. Therefore, if we were to adopt the European model, would that be a constraint or an obstacle to better harmonisation with the US? Would it not be better for us to emulate the amendments passed in July 2005 by the american Senate? Usually, we tend to harmonize our standards and practices with those of the US.
I ask this question because we would not want to be in conflict with the Americans on such an issue since, in Canada, we have always tried to harmonize our standards with those of the US.
Thank you to the guests. It is good to see you again, Mr. Khatter.
I want to return to the Great Lakes a bit here. Being the southernmost MP in Canada from down in the Windsor area, just outside of Windsor, we've had a number of reports down there. The Gilbertson-Brophy report--I don't know if either of you are familiar with that at all, but certainly they're beginning to document a number of the links between our air pollution and our cancer rates, our respiratory problems. We have some of the highest rates down there. Even within our own family we've seen non-Hodgkins lymphoma, a number of those things there.
Windsor happens to have one of the highest miscarriage rates in all of Canada as well. My wife works on the birth side of things. High-end fertility among couples, you name it, it's happening in our region.
You've made the comment that CEPA has not protected the Great Lakes basin sufficiently. I think that was perhaps in your opening comments, or your opening comments, Mr. Stack, but one of you will be able to address that.
I want you to expand on that a little bit more, but before expanding on that I want to ask the flip side of it: have there been any CEPA-related success stories in the Great Lakes area that you can talk about?
:
I don't think it's actually a question of us being able to.... I'm sure the technical ability to measure smaller amounts is there. I guess I meant we're finding that low doses are potentially more harmful or more significant than we thought they were. There are “windows of vulnerability”, and when a pregnant woman, for instance, is exposed to something is as important as the amount she is exposed to, or almost as important.
What some of the new studies are seeing is something called a U-curve. You would think the lower the dose, the less the problem, and the higher the dose, the more the problem, but we're actually seeing sometimes that low doses can cause problems at the molecular level that aren't caused by higher doses...and then cause it again. It's very confusing for people.
We already know that with cancer-causing things there is what we call “no threshold” for a carcinogen. Small doses of cancer-causing things at the wrong time can kick off a cancer. So we need to do what we can to get anything that's carcinogenic out of the system.
For a lot of the other things that are developmental or reproductive, part of the difficulty in being able to do the cause and effect sometimes is the lag time between exposure and when the effects happen. That is why we tend to support the precautionary approach that says we shouldn't be exposing people to these things when we don't need to.
As much as air pollution is clear and easy for us now, if someone has an asthma attack, it's harder for us to make the link to cancer, learning disabilities, an increase in autism, and those kinds of things further down the road. So we need to act in a preventative manner to make sure that those problems aren't related to environmental contamination.