Thank you very much, and thank you for the invitation.
[Translation]
Good afternoon, Members of the Committee.
I am joined by John Reed, Principal at the Office of the Commissioner of the Environment and Sustainable Development. He has played a major role over the last few years in our work on toxic substances.
The purpose of my presentation today is to support your evaluation of the Canadian Environmental Protection Act by recapitulating for you some of our past work that has a bearing on the Act. Specifically, we will highlight some key findings as well as ongoing concerns about the government's assessment and management of toxic substances.
I am not going to read the entire text of my presentation, which you have in front of you, since I would like to leave as much time as possible to Mr. Reed. Allow me simply to mention that up to now we have done two audits and one follow-up. The first two took place in 1999.
At the time, we released two chapters, one of which was entitled “Understanding the Risks from Toxic Substances: Cracks in the Foundation of the Federal House“. In this chapter, we focused on the way federal departments provide scientific information to support decision making.
[English]
The fourth chapter in the 1999 report was called “Managing the Risks of Toxic Substances: Obstacles to Progress”. It focused on federal departments' management of the risks created by substances identified as toxic.
Finally, in the 2002 report we did a follow-up called “Toxic Substances Revisited”, where we examined the departments we had initially audited to assess their progress in implementing our 27 recommendations.
Although our work on toxic substances included aspects of the Canadian Environmental Protection Act, it was much broader than the act alone. While our findings are somewhat dated, we hope they can support the committee's evaluation.
John Reed, the principal who led our 1999 and 2002 work on toxic substances, will now lead you through a brief slide deck presentation, of which you have a copy. After that we will be more than happy to answer any of your questions.
Thank you very much.
John.
:
Thank you, Madam Gélinas, and good afternoon, everybody.
I'm going to be speaking in conjunction with a slide deck that has nine slides on it. Four of them will give a bit of history about the audits we conducted in 1999 and 2002. For the last five slides we've chosen five topic areas that fell out of our audit work. We've identified these five areas as ones we would certainly look at if we were going to audit this topic area again, and we've identified a number of questions that we would be posing in the context of those kinds of audits.
Let me recap, very quickly, the 1999 work we did. As Madame Gélinas said, this work was reported in two chapters. Those two chapters split the topics of toxic substances into assessment activities in chapter 3 and risk management activities in chapter 4.
For the purposes of this audit, we scoped the topic of toxic substances quite broadly. This was not just toxic substances as defined under CEPA. We looked at both a range of industrial chemicals that, one way or another, were called toxic in different federal programs, policies, and legislation, and we looked at pesticides. I'm not going to be speaking to any of our pesticides findings today. We did look at aspects of CEPA, and in 1999, that was the 1988 CEPA. The new act had not been passed yet, and that did change for our follow-up. We looked at six different federal departments and made, in total, 27 recommendations.
Chapter 3, again, dealt with the assessment of toxic substances. The title of our work was “Understanding the Risks From Toxic Substances: Cracks in the Foundation of the Federal House”. We chose that title because a major conclusion of the audit was that there was a sizeable and growing gap between the demands placed on departments to assess substances and the supply of information, the supply of science. In other words, while departments were increasingly being asked to assess substances, at the same time there had been cutbacks in scientific research and monitoring, so the departments were very much faced with a resource problem. The audits themselves identified a number of examples of that resource gap leading to problems in decision-making.
The second major finding from that work was that environmental monitoring in particular--that is, ambient monitoring, the monitoring of toxic substances in the environment--was not in good shape. We identified significant shortfalls in monitoring, problems with the coordination of research, and a small item that may still be relevant for you: in 1999, there were no defined procedures on how departments could incorporate new information into past assessments. That was an item we flagged in the 1999 work as well.
Chapter 4 dealt with risk management. I'm sorry if I'm going fast, but we want to just hit the highlights.
The net conclusion in this chapter was that the government was not taking adequate action to deal with toxic substances. Vis-à-vis CEPA substances and the priority substance lists 1 and 2, the audit found real problems of slow, slow progress; after ten years, some substances still did not have any risk management measures in place. Again, resource problems--gaps--came to the fore here. For example, although the departments had gone through the exercise of identifying recommendations to manage many of the declared toxics, no resources were identified for the implementation of those measures.
In 1999 the government was relying heavily on voluntary programs to manage toxic substances. We were neutral on the question of whether that was a good idea or a bad idea, and we're still neutral on that question, but we did take the position that if you're going to use voluntary instruments to manage toxic substances--substances that pose problems for health and the environment--then those voluntary instruments have to be robust and reliable and deliver the results they're intended to. We made a number of recommendations on how they can improve the use of voluntary instruments.
In chapter 4, on tracking releases, we identified that a great number of toxic substances, including CEPA toxics, had no tracking information, no release information. We simply didn't know the amount being released through the national pollutant release inventory.
In 2002 we undertook our follow-up work. That is reported in chapter 1 of the 2002 commissioner's report. I don't know whether you have copies of this chapter, but at the back you will see a table that indicates the follow-up status for each of the 27 recommendations in all six of the departments. If you flip through that matrix, you'll see an awful lot of empty circles, which is our code language for no action. There are far more empty circles than full ones in this case, so certainly from our standpoint, when we do follow-up again, we will start with some of those recommendations.
The progress was mixed. At that time the CEPA of 1999 had come into force, and the departments were very much on the job of trying to implement and get their heads around the requirements of the new CEPA. Maybe for that reason, many other departments became less engaged in the management of toxic substances, and I think that's why there are so many white circles in there, but many of the root causes we identified in the original work in 1999 persisted through 2002: issues around resources; issues around the gap between the knowledge that's required and the knowledge that's being provided; and, to an extent, issues around burdensome consultative and regulatory processes.
That's a quick summary of our work in 1999 and 2000. I'm going to spend the balance of my time briefly capping five thematic areas we would look at if we were going to work in this area again.
The first one is not necessarily linked to CEPA; it's the theme of scientific research and monitoring. I think you well know, committee members, that good science underlies virtually all decisions in CEPA on both the assessment and the management fronts. If you don't have good science, you're probably not going to be making the kinds of decisions you need to. I think we would very much pursue this by going substance by substance and finding out to what extent there have been changes in monitoring, in research, and in the tracking of releases.
In particular, I think we would probably also want to find out what happened to the recommendations from an exercise called the Canadian Information System for the Environment. CISE is the acronym it goes by. Just about the time we were completing our work in 2002, the government was also leading a blue-ribbon panel to look at the state of science and research and monitoring. They made a series of recommendations to the government; from what we've been able to tell on the website, none of them has been implemented. We're not sure if they've been resourced, but we would certainly start by querying the government about the status of CISE.
In 2002 we also raised the issue of biomonitoring. I raised it in the sense that we noted it wasn't present. There have been some announcements recently, I understand, and I know this committee has discussed biomonitoring, but I think we would pursue that as well.
The next thematic area would be the precautionary principle. In 1999 we didn't do a whole lot of work in this area, but we did note at the time that of the 44 substances, I believe, on the original priority substance list 1, 13 were still inconclusive on the basis of insufficient information. In 1999 we raised the question of whether the precautionary principle would have a role in helping to make those kinds of decisions.
In 2002 we pursued that and ended up recommending to Environment Canada that they develop operational guidance on how to apply the precautionary principle in the act. They were under way in that exercise--they had started developing that guidance--but it wasn't complete at the conclusion of our audit. At the same time, the Privy Council Office was undertaking a government-wide examination of the precautionary principle; that, too, was inconclusive at the time of the conclusion of our audit. Therefore, I think we would pursue with both of those--PCO and Environment Canada--where that operational guidance has been left now. I think it's particularly important not just for the priority substances lists assessment, but especially now for the screening exercise that's about to be undertaken on the domestic substances list. I know you've had a good discussion on the precautionary principle in the past.
The next thematic area is with respect to the PSL1 and PSL2 substances. Frankly, there was slow, slow progress in 1999, and not a lot of progress by the time 2002 came into force. In 2002 the department--Environment Canada--had redesigned the processes it was going to use for managing PSL2 substances as compared to PSL1 substances, but that process had not been implemented. Were we to do some follow-up here, we would clearly be going after almost a substance-by-substance inventory of what measures have been recommended, what measures have been put in place, whether resources were attached with those measures, what reductions have been achieved in the environment, how they know that, and so on. I think we would get down to very much a substance-by-substance review.
We would also, I think, want to ask ourselves if pollution prevention is truly being achieved. When I say “truly”, I don't mean pollution control; I mean pollution prevention, prevention at source, before a pollutant is generated in the first place. That is a preamble to the act, and it was certainly a major feature of the policies that existed prior to the enactment of the new act. I think we really just want to know if this system is working and if the substances are being managed effectively.
The fourth thematic area would be on virtual elimination. Again, I know you've had some presentations on this topic. At the time of the 1999 audit, virtual elimination was a policy objective of the Government of Canada. The departments engaged in the toxics debate at the time were almost at war with each other over virtual elimination, what it meant, and in particular how to apply it to naturally occurring substances. That was very much stopping progress.
Since then, as of 2002, the act has been amended. There is now a formal process. I think that at the time of the 2002 audit, no substances had been added to the virtual elimination list. The departments were in the process of preparing quantification limits, detection limits; I'm not sure if that's changed at this stage, but we would clearly go after virtual elimination as a topic area in the audit to see whether it is in fact being achieved where it was supposed to be.
The last slide is on the topic of the domestic substances list. Again, I think this is now well known. The department is soon to conclude the categorization of the 23,000 substances; then that goes into a process of screening.
A minor question we would ask is whether the process, specifically the categorization, is on track according to CEPA, but I think our major preoccupation on the DSL would be around resources and trying to determine whether the departments really do have the capacity to both assess and ultimately manage any substances that fall out of that exercise. As I mentioned at the outset, resources were a problem in 1999 and again in 2002. I'm not aware that there's been a major infusion of resources into either department to cope with future demands, yet the future workload is growing through the domestic substances list.
I hope that wasn't too short, Mr. Chairman and members of the committee. We wanted to touch some of the highlights very briefly; there's an awful lot of underlying detail, but I think I'll stop there.
We are available for questions.
:
Mr. Chairman, I don't think you have to worry about Mr. Reed hesitating to jump in.
I can give you an update of the status of the PSL. As I think you know, the ministers over the course of the 1990s assembled two PSL lists, PSL1 and PSL2. PSL1 contained 44 substances, some of which were individual chemicals and some of which were broad effluent streams. I'll give you a quick status on this.
All but two of those assessments are completed. Twenty-six out of 44 have been found to meet the criteria in section 64. They're toxic under the act. All 26 of those have been added to schedule 1. Twenty-five of those are managed by instruments under CEPA, and one, which is one of the phthalates, has been managed by the Minister of Health.
One has been proposed toxic, so the assessment is completed. The first notification has gone out suggesting that the substance is toxic and that it be added. That process isn't complete. That's used crankcase oil.
Thirteen of the substances are not toxic, did not meet section 64. Two of them were found to in fact not be in use and are therefore subject to the new substances notification regulations. In other words, the departments didn't conclude one way or the other. They didn't need to; the stuff's not out there. If it ever comes in it will be subject to the reverse onus provisions in the new substances regime.
Two of the assessments are in the process of being updated and revised. In terms of monitoring those substances, 23 of the 26 declared toxic are currently being monitored under the NPRI. Eleven of the 13 declared not toxic are also being monitored under the NPRI.
PSL2 had 27 substances. Nineteen of those have been found to meet section 64 criteria; they're toxic. Seventeen have been added to schedule 1. One, radionuclides, is being managed by another federal agency, the Nuclear Safety Commission. It's a much better place to manage that substance.
Road salts were not added to schedule 1 but are nonetheless being managed by a memorandum of understanding. I'm not sure exactly who it's with; I can get you that detail. Seventeen of the 19 are being monitored by the NPRI. Six of the substances have been found to not meet the criteria in schedule 1. Two of the assessments have been suspended pending further research.
So of the 71 substances, all but four of the assessments have been completed, and where appropriate, management regimes have been put in place.
I repeat what I think I said in an earlier meeting: to date the departments have not added to the virtual elimination list all substances that they have prohibited.
In 1998, after the departments developed the toxic substances management policy, the departments identified 12 substances for virtual elimination. Eight of those were pesticides, and there were four other substances. All eight of the pesticides are not registered with the Pest Control Products Act; in other words, they cannot be used as pesticides. Adding them to the virtual elimination list doesn't do anything over and above the step that's been taken by the pesticide management folks, so it would be additional government effort for no value added in terms of risk management.
The other substances have been subjected to the prohibition regulations, so again their use is prohibited in Canada. Again the conclusion was that going through the administrative steps to add those substances to the virtual elimination list would not add any benefit to the risk management of those substances, because what needed to be done had already been done.
You also asked about whether there are administrative problems with virtual elimination requirements in CEPA. I think it's fair to say the answer is yes, there are.
The virtual elimination provisions are complicated and hard to follow, but essentially what they say is that if a substance meets the criteria in the regulations to be considered persistent or bioaccumulative, and inherently toxic, the minister shall implement virtual elimination as it's defined the act. That means the minister must add the substance to the virtual elimination list, identify a level of quantification, and then develop a release limit regulation.
What we found is that many of the substances on the horizon that we anticipate may be subject to these requirements are contaminants in products; they're not being released through industrial emissions. We've learned that it's extremely hard, technically, to develop a level of quantification for a contaminant in a product that is inadvertently released, and that indeed the better approach for addressing these substances, in many cases, is simply to prohibit their use. Going the VE route--virtual elimination--would then just add some burdens that are hard to comply with and again won't add a lot of environmental or health benefit.
The additional requirement of having a release limit regulation is again something that in many cases has turned out to be unnecessary. If you ban the substance, there's not much point in developing another regulation that prescribes a release limit for it, because in theory you shouldn't be using the substance--so, yes, when we've tried to implement these provisions, we have encountered some administrative challenges.
:
I agree with you entirely. We made that point in the 1999 audit.
You have a process whereby a substance is determined to be toxic. You go through a process of identifying what you're going to do about it. Most of the time that's in the form of either a regulation or companies agreeing to voluntarily reduce the limit. The only reporting mechanism that existed at the time was the NPRI. We made the point in the chapter that many of the substances that are being declared toxic are not on the NPRI. There was no mechanism for tracking releases. By 2002 the departments had made a number of additions to the NPRI, and more and more of those declared toxics were being tracked.
I think your question remains pertinent today. That's why I said earlier that if we were approaching this topic again, we would probably go substance by substance. We would want to know what risk management measurement was in place, what reductions were you trying to achieve, what do we know about releases, and what do we know about ambient monitoring. It's one thing to know under the NPRI whether it's being released at a point facility; it's an entirely different question to know whether it's in our water, on the land, or if we're breathing it.
Most of the substances were not being monitored in 1999. I think you're onto the right thing, that if you don't have monitoring and tracking, you don't know—unless the instrument itself, like a regulation, has reporting built into it, such as an MOU sometimes. Even in a memorandum of understanding, the companies and the associations involved are often more than willing to try to report their progress. From a reliability standpoint, you have the ability to enforce a regulatory approach, but when you have a voluntary approach, we were asking the question, how do you know? And how can you use that tool to make sure it's working?
I must say, though, that on this count the Department of the Environment did respond to our recommendations. We had suggested they needed some policy guidance on when they would use voluntary instruments, when not, and what they should look like. I think we did report in 2002 that the department had made some good progress there. They actually found it quite helpful; they had some ammunition to use with industry, to say we need to have robust instruments.
:
I will try to respond briefly to a number of the points that were made.
In terms of ARET, I think it's important to say that the primary risk management approach for CEPA toxic substances was never to rely on ARET. Although ARET was an important measure, it was never the measure that was used to address a CEPA toxic substance. Indeed, CEPA 1999 made an important change in that it requires, by law, a regulation, or “instrument”, for each substance added to schedule 1. So we could not rely just on ARET, or an equivalent voluntary challenge, for a substance added to schedule 1, and have not done so.
The reporting mechanisms now extend beyond NPRI and include a number of air reporting mechanisms. Most CEPA regulations require reporting. The challenge that we have, and it's something we could do a better job on, is aggregating NPRI and similar air reporting and individual regulatory reporting to provide information to the public in a useful way.
I do want to emphasize that in 1995 there were about 1,800 facilities and 176 substances on the NPRI. A couple of years ago, in 2004, there were almost 9,000 facilities reporting on about 325 substances. So NPRI is expanding considerably, and continues to provide us with a better and better picture--not a perfect picture; it's important to understand that it's not a static tool.
The policy movement on voluntary measures, which Mr. Reed spoke about, is now documented in the form of a policy framework for environmental performance agreements. This is a formal policy that documents the circumstances in which the department will use non-regulatory performance agreements and specific requirements. Many of those requirements flow from the recommendations made by the commissioner and include such things as credible public reporting and some form of verification as a recognition that some of the voluntary measures that emerged in the 1990s were inadequate in being able to provide the information that the public and the government needed in order to determine efficacy.
In terms of ambient information, I think that is where we're weak. As Dr. Clarkson emphasized, that's not the only piece of information that is needed, but it is a critical piece of information. If releases are up or down, that's important to know, but really what we want to know is whether the environment and human health are better. You have to be able to make that connection.
Finally, in terms of the new substances regime and who does the work, and how credible that work is, the information is generated primarily by industry, but it has to be generated and provided in a form and following procedures that are prescribed in law by the government. Those procedures essentially require following standardized assessment protocols that have been developed throughout the OECD. It's not an unusual scientific thing to say that you must follow this procedure and document it in this way so that another scientist can review it and trust your data. That's the way the scientific world works, and that's essentially the way the new substances notification regime works.
:
We have said in the past with respect to the environment, and I guess I have said this too many times before this committee, that we need leadership at all levels.
In the case of CEPA, it's clearly federal jurisdiction, and we are hoping that some progress will be made. We will be able to report on that next year. I would caution you not to use our 2002 conclusions too much, because things have evolved since then, and we cannot tell you how much progress has been made—and, in some cases, neither can the department.
What Mr. Reed was suggesting, and I will just re-emphasize this, is that the best way to see how CEPA is working is to go substance by substance and to look at what the status was a couple of years ago, before the CEPA review, and what has been accomplished since then. Then you will be able to draw your own conclusions on how much CEPA has been able to achieve.
If I may just expand a little bit, Mr. Chairman, on what we have said in the past and on what CEPA is all about.... Mr. Moffet has talked about the PSL1 and PSL2 substances. We have talked about assessment here; assessment is the first step in moving on and managing.... You still need to have a very good understanding of the status of the management of those substances.
Also, don't forget that collectively, as a country, we have to deal with the 22,000 substances on the domestic list, and some of those substances will get on the PSL2 list, so we will have to manage those too. When you raise questions related to the resourcing, you have to be forward looking and ask yourself if we will be able to manage those substances too. At the time of the 2002 follow-up, we said that if 1% of the substances were to make the CEPA list, it would take decades to deal with those substances. So always keep in mind the forward-looking aspect; there's not only the CEPA toxic list as we know it already, but we have the backlog and the upcoming substances that may end up on that list.
I haven't talked much, and I will stop here, because Mr. Reed can give you all the appropriate answers.
I just thought I would try to provide a quick update on some of the comments that Mr. Reed provided.
First of all, he mentioned that the toxic substances management policy and the federal pollution prevention policy applied at the time of his audit. Both of those policies still apply and still guide the decision-making under CEPA and other federal statutes related to toxics.
He mentioned that there was a general absence of science-based goals for risk management. After the implementation of CEPA 1999, the department developed toxic management procedures--which are on the website of the department--that guide the way each risk manager undertakes his or her activities. They prescribe a process. The first step in the process is to try to identify a science-based goal for the management of a substance. Then, of course, you have to turn to what is practical and what the actual goal will be that is articulated in the management instrument. That's the policy that guides the development of risk management.
I don't want to mislead you and suggest that that is actually carried out in every case: the identification of (a) a science-based objective, and (b) making a linkage between a science-based objective and the actual risk management measure is extremely hard to do in many cases. We may want an ambient concentration of X, but if we decide to regulate sectors A, B, and C, but not D and E for various reasons, deciding what level of emission control, for example, or that a percentage of a product can contain a certain substance and then making the linkage between that and the overall environmental or health outcome that one wants is conceptually extremely hard to do. So again, this remains an ongoing challenge for both departments.
With regard to the DSL requirement--I've mentioned this a couple of times in appearing before the committee--the obligation in the act is to categorize all 23,000 substances by September 14 of this year. That obligation will be met; the departments will meet that obligation. The ministers are preparing to make those announcements.
As I have mentioned in the past, and I think as Mr. Reed emphasized, the interesting questions will be what we do with that information and how that information will change the way we both assess and manage substances. The departments are starting to talk to industrial and civil society stakeholders about a proposal for a new regime, based on that information.
The assertion was also that the regulatory process is too cumbersome, and therefore there is a tendency towards non-regulatory measures. I won't comment on the cumbersome nature of the process—there are many steps involved—but again, I want to emphasize that the law does not allow us to rely exclusively on non-regulatory measures. We must, by law, have a regulation or instrument for each substance added to schedule 1. I think that's important to recognize. Whether that's good or not is an issue for you to decide.
There was a question about virtual elimination, whether virtual elimination is precautionary and whether virtual elimination requirements in CEPA are linked to pollution prevention. I would suggest that virtual elimination requirements in CEPA are precautionary in the sense that they say if a substance is PBIT, it must be virtually eliminated. There is no question about it being subject to other types of analysis; it must be virtually eliminated.
Do those requirements necessarily drive or force pollution prevention? I would say the answer is not necessarily. The way virtual elimination is defined in the act is focused on releases. One can reduce releases through control measures or one can address releases through pollution prevention. The act does not necessarily drive us towards pollution prevention in the way that it spells out or defines “virtual elimination”.
That's the extent of the comments I wanted to make in response to those comments that Mr. Reed made.