ENVI Committee Meeting

    Good morning, everybody. I'd like to call the meeting to order. Just for your information, given the fact that we've changed rooms, the meeting will not be televised.

    We are meeting pursuant to Standing Order 108(2) and section 343 of the Canadian Environmental Protection Act of 1999, statutory review of the assessment of substances--virtual elimination. We have a series of witnesses.

     Could you please limit your presentations to ten minutes and also introduce yourselves.

    We'll start off with Mr. Gordon Lloyd.

    My name is Gordon Lloyd. I'm with the Canadian Chemical Producers' Association. It's good to be here, again. Hopefully we won't get a fire alarm today.

     I'd like to thank the committee for the opportunity to participate in this round table to discuss virtual elimination. Last May when CCPA appeared before the committee and tabled our detailed submission on the CEPA review, we did raise this issue, and we specifically suggested amending CEPA to modify the requirements to establish limits of quantification, LOQs, for the virtual elimination of substances that are present as trace contaminants.

    Today I'd like to first provide a little background and context on virtual elimination, particularly in relation to the Stockholm Convention, and then address the specific LOQ concern and recommendation we have.

    Virtual elimination stems from the government's 1995 toxic substances management policy. That policy is reflected domestically in CEPA, and it was also successfully carried forward by Canada at the Stockholm Convention on POPs, persistent organic pollutants. Virtual elimination in CEPA and in the toxic substances management policy was also developed to address the International Joint Commission philosophy of zero discharge, an approach to virtual elimination for persistent toxic substances.

    Under CEPA, substances that are man-made, persistent, bioaccumulative, and found toxic after a risk assessment—and I'd like to emphasize the risk assessment part—are subject to virtual elimination, and this is a mandatory provision in the act. “Toxic” here is used in the sense of doing a risk assessment under section 64 of CEPA. This is quite different from inherent toxicity, which is hazard-based, and which is one of the criteria for DSL categorization, which the committee has been talking about more recently.

    What is subject to virtual elimination is risk-based, and this is different from the hazard-based categorization results. Virtual elimination is set out in the act in terms of ultimately reducing releases below the level of quantification, or the LOQ. This is the lowest concentration that can be accurately measured using routine scientific analytical methods.

    The purpose of establishing this LOQ was twofold. It was supposed to reflect that it's meaningless to require any further reductions, which couldn't be accurately measured and would not be enforceable. Also, it was put in to reflect the point made in policy discussions leading up to the virtual elimination policy, that it doesn't make sense to be chasing the last molecule, as it was called.

    The act also requires that release limits for virtual elimination be set taking into account environmental and health risks; social, economic, and technical factors; and other relevant factors. Virtual elimination requirements apply to releases from plant operations and from products. As such, they apply to a substance occurring as an unintentional trace contaminant in products, even if there is no sense in trying to reduce it further, because the release is so small. This is a waste of resources, in CCPA's view, and is the LOQ issue that CCPA would like to see fixed by amending the legislation.

    Before proceeding to discuss that specific concern in the amendment, I think it's worth noting how virtual elimination compares to the approach taken in the Stockholm Convention, and how that convention addresses the specific concern that we would like to see fixed in CEPA.

    The Stockholm Convention addresses the same kinds of substances as virtual elimination. The convention first has substances nominated that have persistence and long-range transport and bioaccumulation characteristics and what the convention describes as toxic or adverse effects. However, in translating the last criteria into the CEPA language, what the convention refers to as “toxic” is what CEPA refers to as “inherently toxic”. Here we get into the issue of the confusion between the Canadian approach and the international approach. The convention then takes substances that meet these candidate criteria and, before there is a determination that the substance is a POP, applies the additional steps of doing a risk profile, which is like our risk assessment in CEPA, and considering socio-economic factors.

    To summarize, to be a POP, a substance needs to meet the same factors as virtual elimination in CEPA--persistence and bioaccumulation--and has to undergo a risk assessment similar to the section 64 CEPA finding. Also, a long-range transport criterion that applies to POPs doesn't apply to virtual elimination in CEPA.

     The persistence and bioaccumulation criteria under the convention and for POPs in CEPA for virtual elimination are almost identical, although there are some minor technical differences.

    Under Stockholm, for releases from products, there are two annexes. One annex has the objective of elimination, the other annex has the objective of restriction of production and use. In CEPA, this is dealt with under the regulatory powers in section 93, where production and use can be banned or restricted.

    Under the Stockholm Convention, there is a separate annex for releases from plant operations as opposed to products, which are dealt with in the first two annexes. Here, the objective for releases and the approaches are very similar to virtual elimination in CEPA. The convention stipulates measures to reduce or eliminate these releases in terms of establishing a goal of continuing minimization and, where feasible, ultimate elimination. This is very similar to the ultimate reduction to the LOQ language for virtual elimination in CEPA. Also, just as CEPA takes into account environmental and health risks as well as social, economic, and technical factors in setting release limits, the Stockholm Convention requirements for POPs releases are described in terms of “...application of available, feasible, practical measures...”, “...expeditiously achieve a realistic and meaningful level of release reduction...” and “best environmental techniques”. So the objectives and the approaches in the convention for POPs releases are very similar to those in CEPA.

    On trace contaminants, given the similarities of the Stockholm Convention for POPs and CEPA for virtual elimination, CCPA would suggest looking at the convention to fix the problem that we see with CEPA for trace contaminant levels of virtual elimination substances and products. As our ability to measure continuously improves, we will find trace contaminant levels for virtual elimination substances in products at levels that may not be of environmental or health concern. But Environment Canada would still be required to establish LOQs for such contaminants, even when they are convinced that there is no sense in doing so.

     Establishing LOQs for substances and products will be technically challenging, expensive, and time-consuming for both government and industry, and it should not be done when it doesn't make sense to reduce the contaminant level. It should be reserved for when it does make sense to do so.

    This very same issue was addressed in the Stockholm Convention in the annex of POP products that are to be eliminated. There is a note that says “Except as otherwise specified in the Convention, quantities of a chemical occurring as unintentional trace contaminants in products and articles shall not be considered to be listed in this Annex”.

     So Canada and other countries in the POPs convention have agreed to not address unintentional trace contaminants as a matter of course, but only to do so when there is a specific decision that this is necessary and is worth doing. Incorporating similar thinking and language into CEPA would mean that, for trace contaminant levels of virtual elimination substances in products, there would no longer be a need to waste resources and establish LOQs as a matter of course. This would only be done when there's a decision in a specific case that there is a need for it. The contaminant levels would still be addressed by the simpler approach of using section 93 powers to establish concentration levels, but without the need to develop the difficult-to-establish LOQ for products.

    Since the proposed amendments that we are discussing and the reasoning behind them arise from the Stockholm Convention--and environmental groups, industry and countries around the world supported the convention--we hope that everyone will readily agree to incorporate the type of thinking and provisions that we're proposing in CEPA.

     Our proposed amendment is set out in my written notes before you and in our detailed submission that we filed last time. I won't read it here, in terms of technical drafting, but it's modelled after the language in Stockholm.

    That addresses trace contaminant levels from products. I would note, though, for plant operations that result in emissions subject to virtual eliminations, we believe that LOQs remain appropriate. They are more easily developed here than for product contaminants, and they would still be required. Here the LOQ, we believe, is an essential part of the virtual elimination equation in CEPA, reflecting our ability to measure and the common sense to not chase the last molecule.

    Thank you very much. I look forward to participating in the discussion on this.

    Thank you very much.

     We now go to Derek Stack.

    Good morning. I'd like to step back a little bit further.

    The roots of virtual elimination actually trace back to the 1979 Great Lakes Water Quality Agreement, in which the VE policy states that “The discharge of toxic substances in toxic amounts be prohibited and the discharge of any or all persistent substances be virtually eliminated”.

    I respectfully remind the committee members that CEPA is the primary domestic tool through which Canada meets its commitments to the water quality agreement. CEPA 1999 recognizes a sort of virtual elimination, but the statute did not adopt the definition agreed to in its original water quality agreement context, and it departs significantly from the definition proposed by the international joint commission. The IJC recommends a VE policy that, among other things, applies to “all sources, pathways...and media” and “addresses the complete lifecycle of targeted chemicals”.

    Unlike the IJC but consistent with a weakness in the water quality agreement, CEPA focuses on anthropocentric releases, ignoring the health impacts of some legacy toxics in sediment. What comes to mind there primarily are the areas of concern—the most toxic hot spots in North America.

    CEPA focuses away from naturally occurring elements in its VE definition, so when you look at something like chlorine, which forms the chemical basis of some of the most persistent bioaccumulative toxics known, this further undermines the act's capacity to foster real pollution prevention. A focus on chemical precursors, at least in some instances, could effectively virtually eliminate whole classes of persistent bioaccumulative toxics. The IJC found that “approximately half of the 362 chemicals confirmed to be present in the water, sediment, or biota of the Great Lakes Basin Ecosystem are synthetic chlorinated organic substances, and many of these are expected to be persistent toxics.”

     I invite committee members to consider a recent study by the Toxics Use Research Institute of Massachusetts that “considered whether less toxic alternatives were available for lead, formaldehyde, perchloroethylene, hexavalent chromium, and di(2-ethylhexyl)phthalate (DEHP).” The study found that “in every application studied, at least one alternative was identified that was commercially available, was likely to meet the technical requirements of some users, and was likely to have reduced environmental and occupational health and safety impacts.”

    In response to industry cost concerns, which inevitably come up when we're talking about virtual elimination, I draw the committee members' attention to a report commissioned by the VE task force seeking to identify economic instruments for realizing our virtual elimination goals: “To the extent that that innovation leads to the development of new substitutes less expensive than existing substitutes, the estimated costs of virtual elimination are overstated.”

    The report recommends the IJC encourage parties to the water quality agreement to adopt pilot programs to test economic instruments. In so doing, the report later points to a guidance offered by the polluter-pays principle recommended by the OECD in 1975. It further suggests that the parties to the water quality agreement consider marketable permits, taxes, subsidies, deposit refund mechanisms, and other tools in pursuit of virtual elimination.

    Two additional CEPA clauses undermine the act's capacity to protect human health and the environment. The first is that a level of quantification is needed prior to any action, and second is the pollute-permissive language of the act, which focuses on what levels can be released rather than what cannot be released. Quoting directly from the act, “When the level of quantification for a substance has been specified...the Ministers shall prescribe the quantity or concentration of the substance that may be released”. Recognizing that technical innovation will allow for ever smaller quantifiable concentration, the act's pursuit of levels of quantification is a bit of a red herring.

    In 1994, the IJC's VE task force, in identifying gaps and impediments to achieving VE goals, noted that “The governments' “pollution prevention” approach generally pertains to control (rather than prevention), focuses on releases (rather than uses) and attempts to determine acceptable levels (rather than elimination requirements).” The task force recommended that the parties promote development of technologies, products, and processes that will eliminate the creation of persistent toxics and thereby eliminate their input into the Great Lakes Basin ecosystem.

    Although the task force recommended domestic measures to address this failure long before 1999, CEPA 1999 entrenched what was already recognized as a problem. CEPA's largest failure, however, is that it not only allows but requires the political repercussions of measures to virtually eliminate the most deleterious chemicals to human health and the environment.

    It may seem trite to note the influence of political realities, but I respectfully remind committee members that following years and years of review, analysis, and identification, not a single chemical has been added to the list. Only one toxic pollutant, hexachlorobutadiene, has been recommended for action. This isn't due to a lack of scientific uncertainty regarding the toxicity of some of these chemicals. Many of them, such as DDT, PCBs, dioxin and other candidates for VE, are recognized as the most toxic among toxins and they are regulated globally. It's a reflection of the regulatory opt-out that consistently plagues and undermines the operationalization of CEPA.

    I hope that historical context is of a benefit to the committee.

    Thank you very much.

    Mr. Weiner.

    I'm Joel Weiner I'm the senior adviser in the Canadian section of the International Joint Commission. With me is my colleague Mr. Jim Houston, our environmental adviser. We've been asked to come and explain the connection between the Great Lakes Water Quality Agreement, about which you heard a little bit from Derek, and virtual elimination.

    As you have already heard from Derek, the IJC has had something to do with this. We are not involved at all in the implementation of CEPA; we're not in a position to comment on it. Frankly we're limited to making comments about what the commission has pronounced on, over the years that the water quality agreement has been in effect. The current commission has not dealt with either CEPA or virtual elimination. So we have nothing to report to you about what the current commission's views are.

    What we can tell you is how the commission contributed over the years to the evolution of the concept of virtual elimination and perhaps shed some light on how it came to be included in the Great Lakes Water Quality Agreement, and then how it made its appearance into the Canadian Environmental Protection Act.

    If that satisfies the chair and the members of the committee, I will continue. I had planned to spend a bit of my remarks telling you a little about the IJC, which is on the verge of celebrating its centennial, since it was established by the Boundary Waters Treaty Act of 1909 between Canada and the United States. However, in the interest of time I will not do that.

    Mr. Chair, I brought copies of our annual report for 2005 with me.

    They are in English and in French, and I can table them before this committee, if you wish.

    I think it's important to say that, in a nutshell, article IX, one of the provisions of the Boundary Waters Treaty, gives to the parties, the governments of Canada and the United States, the ability to refer to the commission any matters they choose with respect to transboundary environmental issues. Our primary mandate is to try to resolve disputes where the parties think we would be helpful--to avoid them in the first place, to do research and ongoing investigations, and to bring matters to the attention of the parties.

    When the first water quality agreement was put into effect in 1972, it was largely as a result of recommendations that the commission itself had made when earlier it had received a substantial reference from the governments to look into the question of pollution in the Great Lakes. Among the things we recommended was that the parties needed to establish an agreement between themselves that focused exclusively on the question of water quality in the Great Lakes Basin.

    The 1972 agreement does talk about toxic substances, but it doesn't talk in a lot of detail about persistent toxic substances. That probably reflects the state of knowledge at that time.

    What's interesting to note is that between 1972 and 1978, when the new Great Lakes Water Quality Agreement took effect, the commission was publishing annual reports. The 1978 agreement mandated us to produce biennial progress reports, but up until that point we were obliged to produce annual progress reports.

    When you look back at those early reports of ours, you'll find that we did have an awful lot to say about the impact of persistent toxic substances and the need to control them. Many people, and I think maybe Derek to a certain point has alluded to this, go so far as to credit the work of the IJC and its network of advisory boards for giving rise to the concept of virtual elimination. My colleague Jim and I have done a search through our records, and we actually haven't found a case where we used it in one of our documents, although we haven't had a chance to do an exhaustive search. But we are told by government officials who were behind the closed doors during the negotiations between Canada and the United States, leading up to the 1978 agreement, that the work of the commission, and particularly of its advisory boards, was very much on their minds. They were familiar with the work. In fact, many of those government members were members of our various advisory boards.

    So I think the case can be made that the advice from earlier commissions between 1972 and 1978--that governments on both sides of the transboundary needed to get on with the job of addressing persistent toxic substances and their discharge into the Great Lakes Basin ecosystem--was something that was increasingly important. The commission was, I guess in those days, pleased to see that when the 1978 agreement came into effect, one of its very specific objectives was to achieve virtual elimination.

    Going back to our third annual report, in 1974, we started commenting as early as then on the need for the two governments to start addressing the question of persistent toxic substances. In 1975, for example, we said that toxic substances, including heavy metals and persistent organic contaminants, may well have been the most serious and long-term problem faced by governments in ensuring the future beneficial uses of the Great Lakes.

    If you will permit me, I will quote directly from that fourth report. This is what we said about toxic substances then: “They pose threats to water quality, the fishery, human health and ecology in general. Too little is known about these substances....Control and monitoring programs are imperative.” We went on to recommend that effective control laws be enacted and implemented to the fullest extent possible in both countries as quickly as possible. We returned to that theme in each of our ensuing reports.

    Suffice it to say that the concept of virtual elimination appears to have taken shape, in the negotiations that led to the 1978 water quality agreement, largely, or at least in part, because of the things we had said over the years.

    The 1978 agreement is still in effect today. It was amended by protocol in 1987, which basically means that new provisions were added to it. Very little, if anything, was struck from the 1978 agreement.

    I might point out to members that the 1978 agreement is currently undergoing a substantial review by the parties, by the two governments. This review began in April of this year. The 1978 agreement, which as I said was amended by protocol in 1987, has not been revised at all since then. The two governments, together with the provinces and the states and an incredible number of stakeholders through the Great Lakes Basin, have embarked upon a fairly comprehensive review of the agreement.

     In fact, today, later this morning, the commission will be transmitting to the two federal governments, to the Secretary of State in the United States and to the Minister of Foreign Affairs in Canada, the commission's own independent advice about what the parties, we think, should be doing about the agreement. My understanding is that members of the committee will be receiving copies of our report in the next day or so, and you'll probably be reading about it in the press tomorrow morning.

    In fact, this morning, as we're meeting here, there is a large assembly in Toronto. The way the parties have organized the review was that they established a large number of working groups looking at the various annexes and articles of the current agreement, and those working groups are spending the next two days in Toronto. These are binational working groups, Americans and Canadians working side by side, government officials and many of the environmental organizations, and they are presenting in one big assembly the considered output of their work.

    These are early stages of the agreement's review, but I think over the next year you'll be hearing a fair bit about that.

    Sir, am I using up too much time?

    The Vice-Chair (Mr. Mario Silva): You have one minute.

    Mr. Joel Weiner: Thank you.

    The virtual agreement makes its appearance in the 1978 agreement. It starts off right at the very beginning, at article II, which lays out the purposes of the agreement. As Derek pointed out, the two federal governments declare that it's their policy to prohibit the discharge of toxic substances in toxic amounts and to virtually eliminate the discharge of any or all persistent toxic substances.

    The concept is referred to as well in article VI. There's a special annex in the agreement that deals with persistent toxic substances and also sets out the principles by which governments are to establish programs to deal with persistent toxic substances.

    The very first principle I'm going to quote is: “The intent of programs specified in this Annex is to virtually eliminate the input of persistent toxic substances in order to protect human health and to ensure the continued health and productivity of living aquatic resources and human use thereof”.

    Once virtual elimination came into effect, we looked at it a number of times over the years, and--just basically to cut to the chase--we struck a task force, a task force that spent two years looking at how you could effectively implement the concept of virtual elimination. We produced a report in two volumes, called A Strategy for Virtual Elimination of Persistent Toxic Substances. Once again, it's my pleasure to table before the committee copies of this report in both English and French.

    Other witnesses have talked about the economic instruments that could be used to encourage the utilization of the virtual elimination concept. We produced a report on how in fact you could use economic instruments. We produced a report on how bio-indicators could be used to measure the success for virtually eliminating persistent toxic substances. We've had a whole string of reports. We, or at least previous commissions, have been commenting on this.

    It is from that perspective that the commission expressed some degree of satisfaction when it saw two developments that basically emanated from all this work. One was the establishment in the late 1990s of the binational toxic strategy, where the two governments basically established programs to aggressively deal with persistent toxic substances. The other one was the manifestation earlier, in CEPA, of the concept of virtual elimination.

     Hopefully that overview gives you some appreciation for the historical development of the concept and the role that earlier commissions played in it.

    Thank you.

    Thank you very much.

    Mr. Benevides.

     Thank you, Mr. Chair, and good morning. It's a pleasure to appear again on this most fundamental topic as it relates to the Canadian Environmental Protection Act.

    My name is Hugh Benevides, and I'm staff lawyer with the Canadian Environmental Law Association, as most of you know. Together with Environmental Defence, our project, PollutionWatch, has made a substantial submission to the committee on this review.

    With me again today is Dr. Kapil Khatter, also with PollutionWatch.

    I want to make seven interconnected points, and perhaps I'll begin with what was going to be part of my first point last. As we move from the Great Lakes Water Quality Agreement to the Canadian Environmental Protection Act, the weakened notion of virtual elimination, as Mr. Stack has mentioned, is one of the reasons PollutionWatch has made the linkage between the Great Lakes and the act. We see here how a strong binational policy has become much weaker law, and the review of CEPA is the opportunity to give effect to the direction of the agreement, which, as Mr. Weiner says, is now under way. It also allows Canada to lead, not follow, the United States in setting the policy direction. It's our hope that this committee can help to provide the necessary leadership that Canada will have in its report on CEPA.

    In the context of the review of the agreement, I should add that we have an opinion piece in today's Toronto Star, and it comments on the state and nature of the review of the agreement as it stands at the moment.

    What was initially my first point was just to take virtual elimination back to first principles, as some of the other witnesses have done to some degree as well. While there are a great number of technicalities involved with virtual elimination, one thing we can do is take it back to what is intended. It's very similar in nature to pollution prevention and also to what the International Joint Commission has called the philosophy of zero discharge.

    All of these notions are very similar and very straightforward, but what we've lost sight of is what we want to do with VE. I would say those things are twofold. First, virtual elimination should be used to provide new processes and new facilities or retooling of existing facilities, toward the objective of pollution prevention. Secondly, for substances that are already in commerce, virtual elimination can be put into effect by substitution, as has been said, by less harmful substances and processes.

    I point the committee to the long title of the act, which makes reference to pollution prevention; the declaration; the second and third recitals of the preamble; and paragraphs (a), (a.1), and (j) in the “Administrative Duties” section of the act, section 2, all of which make it clear that pollution prevention is a national goal and the priority approach to environmental protection. What I want to propose here—indeed, what we have proposed—are provisions that make those kinds of exhortations mandatory.

    So the second point, then, is that in addition to those declaratory provisions—the preamble, etc.—the law needs to say that virtual elimination is the mandatory approach for the worst substances, and not just the priority approach. The drafting of that is a task we'd be happy to assist with, but it's a necessary one.

    The current section 65, which is one of the key sections dealing with virtual elimination, is flawed because it doesn't take that first step of saying this is the mandatory priority approach. It focuses on releases. Indeed, most of the act, as it deals operationally with VE, deals with releases rather than pollution prevention. It is also flawed because substances can only be added by the CEPA ministers as a political decision, not a purely scientific decision. And I can come back to this point in terms of drafting particular provisions.

     Also, while I'm on the subject, section 65 expressly waters down the goal of virtual elimination by allowing the consideration of “relevant social, economic or technical matters” to affect the releases that are allowed. I don't say necessarily that those considerations should not be taken into account, but certainly those considerations are mandated elsewhere in the act and elsewhere in fundamental policies of the federal government, so they are routinely taken into account in any case.

    The next point is that we have long recommended a definition of virtual elimination that would give the desired direction and indicate that it's the centrepiece of pollution prevention. The focus should first be on that policy goal that I mentioned, so I'm going to read this definition that we've proposed in the past. I apologize that I haven't distributed it to the committee in advance, but I can provide it.

    Our definition says that virtual elimination means the mandatory cessation of the intentional production, use, release, export, distribution, or import of a substance or class of substances. Where a substance is produced as a byproduct of the production or use of another substance, virtual elimination means changes to processes, practices, substitution of materials, or products to avoid the creation of the substance. That ties back into what I said at the outset about the two branches of pollution prevention and virtual elimination for which we're advocating.

    As a companion to and tied into this is the need for mandatory language in the act that requires substitution of less harmful substances and processes, as well as stronger provisions for pollution prevention plans in section 56 of the act.

    The next point is getting into the release section, those provisions that are already in the act and have been spoken to this morning already. We're advocating more mandatory language. For those substances already in circulation, the need for substitution would be expressed through obligations for reduction and elimination of releases.

    The current section 65 needs to be linked with mandatory language to get to the ultimate reduction of the release of the substance—that wording that I believe Mr. Lloyd referred to this morning. Currently, there is nothing in the act linking that ultimate reduction to steps to get to that point, to what would amount to zero or close to zero.

    Part of the puzzle with virtual elimination is the wording of the decision to list the substance as toxic. If you refer to section 77, which is the point where the ministers make the decision whether to list a substance as toxic, also tied into that is the decision on whether a substance should be targeted for virtual elimination.

    This is a difference of opinion, but I believe we're talking about the same provision. Mr. Lloyd contended earlier that it's a mandatory provision. I contend that subsection 77(3) provides that where the ministers are satisfied that a number of conditions are in place, that is actually a quasi-mandatory or quasi-objective standard. It actually is a subjective standard. The ministers have to make a decision, whereas we would prefer that they rely on a scientific decision and that there not be any play in there for the ministers' satisfaction. It's cutting out that stage, and I have wording to eliminate those words. In the interests of time I won't read it, but I will of course provide it.

    As a result of that change, existing subsection 77(4) would be deleted under our recommendations, as it becomes unnecessary.

     The next point, which is tied to that, is on the issue that “the substance is not a naturally occurring radionuclide or a naturally occurring inorganic substance” is removed from the ambit of virtual elimination in the subsection that I'm suggesting be deleted, subsection 77(4).

    I believe the exception of “a naturally occurring radionuclide or a naturally occurring inorganic substance” appears somewhere else in the act as well.

    Part of the reason we would suggest the deletion is that it's not included in the Great Lakes Water Quality Agreement. I would recommend to the committee the excellent paper by your researcher, entitled “Virtual Elimination of Pollution from Toxic Substances”, from July of this year. It correctly identifies the addition of those words as weakening the concept of VE as it appears in the Great Lakes Water Quality Agreement.

    The last point, Mr. Chair, is on other discrepancies with international agreements. I point out in this context that the persistence and bioaccumulation regulations are regulations made under CEPA that allow the departments to determine whether a substance meets those two criteria and to set the criteria for persistence and bioaccumulation.

    Those criteria are three times higher for persistence in water than is recommended in the Stockholm Convention on persistent organic pollutants and three times higher than what is in the Great Lakes Water Quality Agreement. The criteria are two times higher for sediment than what is recommended in the Stockholm Convention.

    With those mixed, fairly straightforward, and also fairly technical recommendations, I leave it there and look forward to your questions.

    Thank you very much.

    We'll start the round of questions. We'll start with Mr. Godfrey.

    For a layperson who is not a chemist, one of the questions is on whether, despite or because of CEPA and indeed our increasing awareness of these highly dangerous substances, one can actually say we are progressively reducing those emissions in North America. I take the representative list that Mr. Stack pointed out on DDT, PCBs, dioxins, furans, and so on. Whether we have virtual elimination or not, can one say for the worst of the worst that over a period of time there has been a progressive reduction of these things? Is that in any way connected to CEPA or to other matters? Is it true, and what is the cause of it?

     I invite anyone to answer. Mr. Lloyd.

    I think the answer to your question is yes. I can provide information to the committee. I didn't bring it with me this time.

    For the chemical industry, I provided information when I talked about our reducing emissions report last May, where I discussed in detail what we're doing on climate change. We also track what we've been doing on emissions of substances like dioxins and furans, and those have been substantially reduced.

    I know it's also the case in broader studies that have shown it outside the chemical industry. The government folks might want to comment on that.

    I don't think it means we need to stop in that process. I think it's a continuing process. The goal in Stockholm and the goal in VE say you keep going and you keep trying to get lower. We would agree with that.

    More needs to be done, but it is from a basis of a lot of progress already having been made. These are the worst of the worst substances, and there is no discussion or argument about that. We know we need to do whatever we can to reduce it.

    Thank you.

    I would certainly suggest that the dirty dozen are the worst of the worst by certain measures, which I don't have the background to go into and say why they qualify and others don't. But certainly on the long-range transport, among other characteristics, they exhibit those.

    I would simply point out the tonnes of emissions of pollutants that are emitted, which are accessible on pollutionwatch.org, and even more importantly, or in addition to that, the thousands of chemicals in circulation that have been through the categorization process, 23,000 or so. But roughly 50,000 other substances have not been categorized, have not been assessed, and are acting synthetically in the environment and in our bodies.

    For those numbers, understandably perhaps, some of them are perhaps coming down, but their effects are still occurring. In fact, in many cases, as we know with dioxins and many other substances, only the very smallest quantities have hazardous effects, until we get to zero on some of those substances.

    Mr. Stack.

    I would pick up where Mr. Godfrey left off. For some of the legacy toxics, we can turn to international agreements and other statutes to thank for the reduction. I think that CEPA itself has been quite weak in dealing with some of those.

    I want to pick up a point that you made in your presentation, which is that it excludes things that have been there for a while and have been building up at the bottom of the lakes and all the rest of it. It's all about releases, right? How do you get to the virtual elimination of something that has been accumulating at the bottom of the lake? It seems to be a much more challenging proposition to be in a position to say, well, we can hardly find any trace of this using conventional equipment, so to speak, when in fact that stuff has been building up.

     Are you really asking for the same degree of virtual elimination of things that have been building up? What would you have to do to get to that point so you could measure it?

    I'm not sure I'm entirely following your question. If you define virtual elimination as a release, then yes, you're right, you can't go after the sediment because it's not targeted for virtual elimination.

    Okay. I was trying to understand how you get at something that has been accumulating. What is it you're actually getting at?

    I'm suggesting that you can't use CEPA in that instance.

    So are you saying virtual elimination doesn't make any sense for that? You can't virtually eliminate the sediment in which the stuff is--

    You can clean the sediment. Certainly I'm not suggesting that we'd want to go and stir all that up, because there are a lot of problems with that.

    I'm just trying to understand the....

    I'm stumbling because I'm not quite following your question, and that's twice you've tried, so I guess I'm failing.

    No, I'm probably communicating badly, but maybe Mr. Benevides will be able to interpret me.

     I'll let Mr. Houston.

    With respect to the Great Lakes Water Quality Agreement, when you come back, it's about restoring the beneficial uses, and there are criteria for doing so. With contaminated sediment, the effects are still showing up in the wildlife. We've gone from gross effects to much more chronic, long-term effects at much lower levels. Arguments can be made--people can detect stuff to 10^-18. What does that mean for a biological end point? No one really can answer that question at this point in time. The effects are still showing up as they are. So the position, really, at the time was virtual elimination in the process--get it before it gets out there--and use the strategies and technologies then to change those processes. That's really what the strategy of virtual elimination was all about with respect to the commission, not the aftermath part. They realized at that time that was not realistically possible.

    May I add a point on that?

    We'll go to Mr. Benevides, and then go back to you.

    Very briefly, I think what was just said is certainly correct. Those contaminated sediments are certainly the legacy in the sense as well that they remind us why we need to take those preventive steps. In my breaking down, in what I thought was a helpful way, the talk into retooling and new facilities and then substances in commerce, perhaps I should have added a third, which is how virtual elimination deals with those kinds of sediments. We certainly know from remedial action plans and other instruments under the Great Lakes Water Quality Agreement and also issues around dredging of the Lachine Canal, etc., what the costs are and how controversial it is and what a huge difficulty it presents.

    I want to point out, in answer to your question, that with respect to contaminated sediments, the water quality agreement has been a tool in addressing them. That is because the 1987 protocol established what are called lake-wide management plans and remedial action plans. Based on advice from the commission, the parties identified 43 of what Mr. Stack called hotspots, and these are areas of concern. In some cases, contaminated sediments are one of the contributing factors that have led to the listing of an area as an area of concern. So under the water quality agreement, there's an obligation for each of these areas of concern to develop what's called a remedial action plan. Depending on whether contaminated sediments are an issue in that particular area of concern, you have to look at the individual or specific remedial action plan to see the strategy that has been adopted to address it.

    By the way, we did bring copies, Mr. Chair, of the water quality agreement in English and French, and we are pleased to make them available to members of the committee.

    Mr. Godfrey, you have 30 seconds.

    This is my last question, quickly.

    Political involvement for making these decisions is in the act, taking into account social, economic, and technical matters. Are there other jurisdictions where the possibility of doing that kind of thing is explicitly excluded--I don't know, maybe in Europe or in Sweden? Are there some jurisdictions where politicians don't get to make those sorts of judgments?

    Mr. Benevides.

    Again, I'll be very brief.

    I don't know of legislation that does that. I think when you look at the way the environmental objective is pitted against economic considerations, one could certainly find examples where the environmental objective is made because of the desire for faster, more effective action, where it outweighs the economic consideration. I have no idea whether we'd find it where the economic consideration is completely absent. That's all I'll say.

     Whether they're expressing laws as well as policies that act in the implementation of those laws, or whether those economic considerations are embedded in the processes.... It would be an interesting study.

    Thank you very much.

    Monsieur Bigras.

    Thank you very much, Mr. Chair.

    Thank you for being here, for dealing with a complex subject. I think that “complex” is the least we might say. What I understand is that virtual elimination amounts, as Mr. Lloyd’s document indicates, to a reduction of releases below the level of quantification. And, by definition, this level is the lowest concentration that can be accurately measured using precise analytical and sampling methods

    Here are my questions. How is this level of quantification set? How can we put in place a model that is scientific and enables us to set a level of concentration?

    I am really asking myself the question. Of course this may be written in the act. But what were the parameters used elsewhere, if any, to set this level of concentration?

    Would anybody like to answer that question?

    Mr. Lloyd.

    Sure. I can have a try at that.

    That was the point I was trying to make in my presentation. One of the reasons the LOQ is there is because that is as low as you can measure. It doesn't make sense to talk about going any lower; that's the stopping point in terms of the aim that's set out in CEPA. That's very similar to the Stockholm Convention, where they talk about the goal being continuous minimization and, where feasible, ultimate elimination. I think CEPA is actually a bit stronger than that, because the feasible language isn't incorporated into the goal; it's incorporated into the social, technical, and economic measures of how to get there.

     I think that's the reason the LOQ is part of the equation. It provides a stopping point that's necessary because you can't measure any lower.

    Thank you.

    Mr. Khatter.

    One of the keys in deciding what a release limit should be--and Mr. Benevides mentioned this--is to make sure the decision is first based on science. We need to look at what the health effects and environmental impacts are in terms of a chemical or substance based on the research and to try to make our decision as closely linked to the science as possible. Of course, there will always be some subjectivity, and there will always be some practical considerations in making the decision. When governments make those decisions, the best we can do is to be transparent as to how those decisions are made.

    Before I finish--just to keep this in mind for all of us--there are two different things we're talking about. There's the level of quantification and there's the release limit. Right now, one of the barriers is this need to figure out a level of quantification. When something is in a product, for instance, it's difficult to do. How do you figure out release limits from products? What we need to do is streamline the process by probably getting rid of the level of quantification and just making good science-based decisions as to what the release limits should be.

    Mr. Bigras.

    In connection with the REACH approach introduced in Europe, I read that there are regulations saying the opinion is that carcinogenic, persistent and bioaccumulative substances cannot really be controlled by industry and that therefore the regulation provides for and insists on the substitution of substances or the development of less dangerous substances.

    Do you feel that these regulations go further than the ones adopted up to now in Canada? Do you think that this approach tends towards the principle of precaution? Would you promote this approach, therefore, in accordance with your position in the debate about virtual elimination?

    Mr. Lloyd.

    Yes, I'll go first again.

    I think CEPA already has powers that would allow that. Under section 93, the government can decide it wants to ban something, and if it does, then another substance would have to be used. So effectively we do have the ability to do that.

    For products, I think section 93 is a part of the act that more logically fits, rather than using virtual elimination. I agree with what was just said—and I made this point in my remarks—that the LOQ for products is a very difficult thing to do. We're suggesting that it not have to be established for products. I think it isn't so difficult for emissions from plants, and it should remain there. But there is an issue about establishing LOQ in relation to products. It think it probably would make more sense if the government didn't have to do that; it would still retain the power to do so if it felt it were necessary, but it shouldn't be mandatory. And I think in most cases the government would probably choose to use the powers in section 93, which can have the same effect as substitution.

    Mr. Benevides.

    Yes, this is why we advocate changing the focus from the individual releases back to that policy goal, and substitution is among the tools you would then use. And certainly that's exactly what REACH will encourage, to a greater or stronger effect, which we'll see in the months to come. I would point out as well that the competitive reality for those companies affected by REACH, including Canadian companies, is that substitution is beginning to have an effect, even though REACH is not yet in effect.

    I saw a website yesterday called “www.reachready.co.uk”. It's a business wholly owned by the Chemical Industries Association, I assume, in the United Kingdom, which is now providing the service to companies to give all of the information that we would say should be available publicly. There you have to pay a fee; nevertheless, this is now spurring new business. And it behooves Canada to also take this kind of approach, because it's clearly the direction that the world, led by Europe in this case, is moving.

    Thank you.

    Monsieur Bigras.

    Here is what I would like to know from the department’s representatives. Has an estimate of the costs been made, should Canada decide to adopt the REACH approach? I gather that in Europe there are contradictory studies, depending on whether the environmental costs are factored in or not. So in Canada has a study been conducted concerning the application of this approach?

    Ms. Wright, would you like to say a few words? I just want to let you know there are about two minutes left.

    As far as I know, there is not. In Canada, we base ourselves on a certain equation, since we estimate that 2% of factories produce chemical products. But we have not done any studies as such, as have been done for the REACH approach.

    The principle of virtual elimination, according to the industry, represents a burden and a cost that are unacceptable to it. Have you made an estimate of the costs of applying this principle?

    We have not heard the industry complaining about the burden that adopting regulations would represent. To clarify, let us say that there are not as yet any regulations associated with REACH. However, if, under the CEPA, it becomes necessary to put regulations in place, we will of course have to consider the costs, benefits and alternative substances. Up to now, though, as far as substances that are the subject of virtual elimination, such as dioxin and furan, go, we have estimated the costs and we are approaching the limits [Editor's Note: Inaudible].

    I think that the witnesses Mr. Stack and Mr. Benevides wish to say something, but only 30 seconds remain.

     I'm simply going to point out that encouraging and requiring substitution actually brings us upstream for pollution prevention instead of end-of-pipe controls.

    Merci.

    Mr. Cullen.

    Thank you, Chair. This is a place I wanted to start.

    In trying to compare this to other regimes, it seems that under the regime we have in Canada right now we're looking at end-of-pipe solutions, at what happens when something's released. Is there a list available? Does the government make a list available to the companies of a certain number of chemicals that you simply can't use in your manufacturing process?

    Right now that list would be what would be scheduled on the toxic schedule in schedule 1 after they'd done a risk assessment, if they decided that banning that chemical was the risk management approach to take.

    How many chemicals are on that list?

    I'd rather let the government people answer that.

    I think, Gordon, I'd have to correct you. The list of toxic substances is not a list of banned substances or prohibited substances. We do have under CEPA, though, the prohibited substances regulations, which set out those substances that are prohibited from use in Canada. And I'm sorry, but I'd have to go back and check the number.

    Are we talking tens, hundreds?

    No, tens, maybe ten to twenty.

    So what's curious to me--and this is something I'm trying to understand from the witnesses--is knowing the vast number of chemicals out there that at the bare minimum achieve the definition of “toxic, persistent”--bioaccumulative is another consideration--why does the government have so few chemicals available on a list, or something to prescribe, to stop the actual use of the chemicals in the first place rather than trying to remedy the effects of those chemicals once they hit the environment?

    Forgive my naïveté on this. I don't understand why we would allow them in the production, or not prohibit them is probably a more correct way to say it, and then have these extremely complicated, onerous processes for the companies and the government to then go through to try to then pull them back out of the system, if we knew in the first place that they're quite toxic, and harmful, and persistent to human health? Are we going about this the wrong way?

    I think, again, it's a part of a legacy problem, plus what is also going on presently in the environment. At the point in time when a number of these things came up with virtual elimination, there was also a major study done in the United States called EDSTAC, which went through a whole process to look at hormone-disrupting chemicals. That process we didn't have in Canada, but we followed that very closely. And I think it's a case of we continue to learn after the fact. Right now in the Great Lakes, the amounts of PFOSs, fire retardants, are reaching much higher, elevated levels. Some of the science is now showing there are effects showing up. But again, it's after the fact.

    So it seems to me then that the basis of the precautionary principle is not applied to the way we go about using chemicals in industry, because in the scenario you just pointed out, we've learned about PFOS afterwards. The application of the precautionary principle, under the most broad definitions, would have allowed a more cautious approach to permitting this chemical into the ecosystem.

    I'm not sure when exactly it was developed as a chemical, but in fact maybe the precautionary principle wasn't even around at the time that particular chemical started to be used.

    Mr. Benevides, and then Ms. Wright wants to say a few words right after that.

    Mr. Chair, the question was whether we're headed in the wrong direction. I think the spirit of our comments today is that we have the tools to take action, as evidenced by the list of...I have nine here--and Ms. Wright informs me that it's now ten--on the list of prohibited substances. Clearly, with a list of nearly ten, we need to have some kind of change in direction, and it's those additional provisions that really mandate us in a different, more aggressive direction for all the reasons we've heard today that we're advocating.

    We've been focusing on the virtual elimination discussion today around releases, which is generally associated with the substances already in use. I just want to remind members that the virtual elimination concept, or the prevention of releases of persistent biocumulative toxic substances also applies to the new substances program. So that's the prevention, and it's been in place since 1994.

    We also used the same concept in environmental assessments and a number of other policies related to contaminated sites and other things like that. So this policy drives more than dealing with the releases.

    I know you're also familiar with the categorization exercise, and one of the purposes of that exercise was to identify what further substances we should be focusing on to prevent--

    You'll forgive me any concern with having so few, if no, chemicals listed on the virtual elimination list to rely on that particular tool.

     I guess this is a question to the committee at large. It seems there's a lot of backdoor clauses built into CEPA to allow the politics to interfere with the science. The process of actually getting something on the virtual elimination list, just by the evidence, the fact that there's nothing there--one proposed, of all these thousands of chemicals.... Certainly the intuitive person says there must be more that we certainly just don't want in our environment.

    I have a question for Mr. Weiner. I've seen a number of reports around the Great Lakes in terms of point source. I know you can't comment specifically on CEPA. How do Canadian sources stack up against our U.S. counterparts around the Great Lakes in terms of the amount of toxic emissions that are going on? Has the IJC ever done a study as to total emissions on a national basis?

    No. We're a binational organization and we looked at the Great Lakes as an integrated ecosystem. Data like that are available. There are release inventory data published in the United States and in Canada, and we utilize those data for the production of our own analyses and reports.

    So let me turn to Mr. Stack, then.

    I seem to recall testimony from you before, comparing Canadian and U.S. companies. There's a perception, certainly, in the Canadian public that Canada is just a cleaner place, that we do better by the environment, that we pollute less than our American neighbours.

    Well, I don't think that perception is entirely fair. We have one-tenth of the population, or even less, so on a net basis, no, that's not in fact true.

    I would actually point out that in the testimony I was referring to a report by PollutionWatch, and since some of them are on the panel today, it's only fair to hand that question over.

    For the witnesses and also for the members of the committee, perhaps you could try to address the remarks through the chair. It makes things a lot easier and then I'll know whom to point to.

    Mr. Benevides.

    Thank you, Mr. Chair.

    Unfortunately, neither Dr. Khatter nor I have our finger on the precise numbers today, but fortunately our website, pollutionwatch.org, and our reports--and I say this because the information is there, not to do a commercial--on air emissions and water emissions to the Great Lakes and across the country make those available.

    As a general narrative, though, how does Canada stack up against the U.S.? Are we doing better? Do we tend to do better as a nation state, or is this a wrong comparison?

    I think it's a very difficult comparison, because for every one comparison you have a competing one.

    Thank you.

    Dr. Khatter, did you want to say a few words?

    I would like to give you some examples. If you think about air emissions in Canada or air standards, air quality in terms of air pollution, if you look at the EU, if you look at Australia, if you look at the United States, Canada is the only country that has guidelines rather than standards. Although three of our guidelines are stronger than the ones in the U.S. in terms of the core air pollutants, and two of theirs are stronger than ours, theirs are actually standards and ours are guidelines. Our guidelines are weaker than the World Health Organization's standards across the board, than Australia's, and than the EU's.

    The question becomes more complicated when we're talking about chemicals. It really depends on which chemical you're talking about. In some places we're definitely behind in some of the newer persistent and biocumulative chemicals that we're finding now. In some places, at times, CEPA can be stronger.

    Some of the Great Lakes statistics that we presented before in briefs and submissions have shown that in the Great Lakes Basin in particular, per facility, we are doing worse than the U.S. in terms of the written amount of reproductive and developmental toxins and the number of carcinogens we put out of smoke stacks.

    Thank you very much.

    Mr. Warawa.

    Thank you, Mr. Chair. I'll be sharing my time with Mr. Vellacott, so please let me know when five minutes are up.

    Thank you to the witnesses for being here today. I found the information helpful. As was pointed out, we aren't scientists and we're relying on your expertise and advice.

    I have a comment to PollutionWatch on that.

    I've been very happy that you've been part of this CEPA review process. Each meeting, you have representatives either presenting or listening and participating. I think this is your fourth or fifth time actually as a witness at the committee. Having a written brief prepared and presented, as we receive from some of the other witnesses, is very helpful to me and I think to the majority of the committee. It gives us an opportunity to read your brief ahead of time and prepare some questions and get our minds around a very scientific and complex issue. You've identified the different topics you want to be part of; you have indicated you want to be here. If in the future you could provide briefs—because you know it's coming—it is very helpful. But I do appreciate your comments.

    Mr. Cullen brought up some interesting discussions regarding the assessments. I think there's a confusion about how the assessments are done. They are done on a risk base rather than a hazard base. That question came up at a previous meeting, how we base them. Apparently, internationally it's based on risk. You can have a substance that may be persistent, bioaccumulative, and inherently toxic, but that does not present a risk to the environment because it's not being used.

    Mr. Cullen has brought the issue before Parliament of phthalates. There are different types of phthalates, but some are deemed by science not to present a risk, based on a risk assessment for the uses they are being put to. Again, we have to be careful that it's based on the international standard, which is risk-based, not hazard-based. I'd appreciate some comment on that.

    The primary focus of my question is virtual elimination. To this point, we have no substances that have been targeted to be virtually eliminated. My question is for the department and for others who want to comment. Why, to this point, do we have no substances that have been targeted to be virtually eliminated? Is there a problem, then, with—as we heard Mr. Stack saying—having the minister able to make the determination whether or not it creates a hazard or a risk?

    We have no substances that are virtually eliminated, so what is the problem? Maybe the department could comment.

     I'll make three points. Somebody referred to the dirty dozen. There were 12 substances for which I think the departments pioneered in the concept of virtual elimination. They were acted on under the toxic substances management policy of 1995. Some actions were taken under CEPA, some actions were taken by provinces, and there were other types of actions.

    Most of them were pesticides. For those, we were satisfied that there would be no additional benefit from putting them on the virtual elimination list, and it would also create an obligation, if they were on the list, to prescribe the release limits that you've heard and the limit of quantification. We believed there was no benefit to be added by that work. In other words, the releases were all being managed. To add them to the list and create those burdens of doing the limit of quantification and the release limit would not achieve any environmental protection or human health protection.

     The third point to make is that there is the issue of a problem with the limit of quantification concept when the substance is actually a contaminant in products. I think you heard PollutionWatch and the Chemical Producers' Association raise that point. That's an additional challenge that the departments have been struggling with. When the substance is a contaminant in product, the whole concept laid out in the regime in the act for the limit of quantification and the release limit just doesn't appear to make a lot of good sense.

    In other words, we would use a section 93 regulation, under the powers of the Governor in Council, to add it to the prohibition list, and that would be a stronger tool than the release limit and a more necessary tool to protect human health and the environment.

    My first question I want to direct to Dr. Khatter, Hugh, Derek, and then Gordon. It's on the issue of the Stockholm Convention, which was referenced a few times here today. It talks about trace contaminants. They suggest in the annex of the Stockholm Convention that “quantities of a chemical occurring as unintentional trace contaminants in products and articles shall not be considered to be listed...”.

    What do you see as the benefits or risks of the approach suggested in the Stockholm Convention?

    If we go through this discussion, we will probably come to a consensus that the idea of chasing down the last molecule, of working too hard at trying to find levels of quantification, is bogging us down, and that we need to streamline virtual elimination. I'm not clear on how the wording in the Stockholm Convention would transfer to CEPA, but we ought to make it clear in the act that we aren't worried about every last molecule. We're trying to move upstream.

    We had discussions on what we were going to do about the stuff in the sediment. Virtual elimination doesn't mean cleaning the environment of everything. It means coming as close to zero discharge as we can. Let's move upstream. Let's get rid of the use in addition to the release of the substance, so that we don't have to worry about the amount coming out of the smokestack. We should use the substitution principle. This way, whenever we get rid of the use of something and replace it with something else that's economically feasible, we don't have to worry anymore about trying to measure the exact quantities of the substance.

    So you don't have a major problem with the statement in the Stockholm Convention. You just have concerns about how it would apply with respect to CEPA.

    Yes. We haven't had a problem with this part of the Stockholm Convention. I've seen the language the CCPA has offered to CEPA. It's not clear to me whether it's an accurate transition. They propose that the quantities of the substance would not be under schedule 1—I can't give the exact wording.

    We wouldn't be happy with the idea that trace contaminants that come out only in small quantities but could still be harmful, such as dioxins, wouldn't be eligible for schedule 1. Some things are harmful in small amounts, and we still need to deal with those.

     Derek.

    I would echo a lot of what Dr. Khatter has said. It makes sense not to focus on the trace elements, but we would want to exclude those elements that we know are highly toxic. At a minimum, we might want to look at upstream pollution prevention, at using different chemicals and precursors.

    Dr. Khatter, to what degree should the availability of alternative substances influence whether or not the virtual elimination principle should be applied?

     It's a difficult question and it has to be looked at in two different ways. There's a double edge to it. On the one hand, the availability of alternatives should allow us to move more quickly to get rid of substances we don't need to use. On the other hand, we can't be stuck in a place where, if there is no alternative, we can't do anything at all. We also need to realize that when the science is strong enough to identify something that's causing a considerable risk, we need to do something about it. This will be a driver for the development of substitution or alternatives.

     There seems to be consensus that the thinking in the Stockholm Convention should be incorporated in CEPA in terms of the LOQ issue and trace contaminants. Our language may not be the proper drafting language, and I wouldn't be surprised if it could be better written, but I think it's important that there be consensus on this issue. The department has also noted that there is a difficulty in establishing LOQs in the product area. I don't think there's often consensus in this area, but it would be worth picking up on.

    We will now begin round two, which is for five minutes.

    Mr. Scarpaleggia, go ahead, please.

    Thank you, Mr. Chair.

    It's interesting that, at least the way I understand it, both Mr. Lloyd and Dr. Khatter believe that we shouldn't be chasing the last molecule. Is that correct?

    Where do you differ in your approach, Dr. Khatter and Mr. Benevides? You suggest that we should be stricter on the issue of release upstream. Is that correct?

    Mr. Chair, there are a couple of different areas. One is that, for different reasons perhaps, there is a reluctance to dedicate resources to chasing down the last molecule even in the sense of determining what is an unsafe level. We also expressed that we weren't in favour of the specific wording that Mr. Lloyd's organization had proposed, so that's sort of a sub-issue. Certainly our emphasis today and indeed throughout, quite apart from the release focus, is how we can act upstream to prevent pollution in the first place. Our primary way of doing that is through the act, to force that kind of technology change, to force substitution, as we think will happen with REACH. The act is the core of that.

    We may let Mr. Lloyd respond, to clarify his part of that.

    It's similar to the response I gave before, on which Mr. Clarkson corrected me. My understanding is under section 93 the government can decide that something should be banned, and if they do decide that, it will be banned. I thought they were able to put that on schedule 1. Maybe it goes on a different schedule. If there is a need to do that for a substance after a risk assessment, fair enough. The industry involved may provide information saying they are not all that keen on it, but the government will ultimately make a decision, and then we will have to find a substitute. The substance in question would have been banned or limited, whatever the limitations were.

    That's similar to the Stockholm Convention. Annex A is for things that are going to be completely banned, with no more use at all. Then under annex B there is room for banning in some areas but restricting in others. I think we have the powers to do that under section 93 right now. The pollution prevention powers that are separate allow the government, before they develop regulations, to direct industry to the effect that this is something they would like them to look at and respond to, as far as what they can do on it goes, to see what industry can do on its own. If industry doesn't do a good job, then the threat--I guess that's the right term--is that they will come back with the regulation under section 93.

    Very briefly, I'd point to the fact that, as Mr. Lloyd correctly says, we have the powers, but then we look at the emergence of chemicals that come up that turn out to have these harmful properties. We look at brominated flame retardants and other examples. How is it that our legislation has failed to prevent pollution by those? That's the approach. We're looking for ways to ensure that substances like that are dealt with not after the fact but in advance.

    Did the government not announce recently that it was going to act on flame retardants?

    Mr. Clarkson, do you want comment on that?

    Yes. There was a publication in Canada Gazette Part 1 on July 1 that had the ministerial recommendations to the Governor in Council for action on seven polybrominated diphenyl ethers fire retardants, six of which were going to be slated for prohibition in Canada.

    Go ahead, Mr. Benevides.

    Mr. Chair, I'd like to point out that among the list of brominated flame retardants that are not being proposed for elimination, one of them, decaBDE breaks down, I understand, to some of those other flame retardants that are being removed, so we ask, for example, why the deca is not being slated in the same direction as the others are.

    It's an interesting point, Mr. Benevides, because it brings me to this issue of substances being banned by ministerial decision as opposed to a more arm's-length science-based approach.

    So the decision to ban--

    Your time is almost up, so could you wrap it up? Do you have the question?

    Well, it brings me to my question, which is this. When the minister decided to ban certain flame retardants and not others, was the science not saying we should ban them all? Did the minister not have to make some kind of political decision at one point?

     I think that issue should be explored by subsequent questioners, if they wouldn't mind.

    I see that nobody wants to answer that, so we'll move on to Monsieur Harvey.

    Thank you, Mr. Chair.

    Earlier, Mr. Lloyd talked of 10^-18 as being the end point for finding a molecule or traces of substances. Is that right?

    I believe so. I wouldn't disagree with that. But someone else used the precise number.

    I had a bit of fun writing all that out, 10^-18 , and in the end I do not know how to say this number, but if ever I brought this down to a ratio in terms of millimetres or kilometres, I would take the distance between the earth and the moon, and finally every millimetre, to the closest ppm, would be analysed. Is that right?

    The number comes from the Agency for Toxic Substances and Disease Registry out of Atlanta, Georgia, from some of their scientists. Actually, the work is maybe not being done so much for health-related reasons as for security reasons over the last few years, to be able to detect molecules or particles that at a certain....

    What we were told at the time we visited is that they were able to detect a substance at 10^-18 , which I believe is the quintillionth.... I'm not sure. I'd have to go back and look at my notes. No, it's not a quintillionth; that's only 1^-5....

    We are not even talking anymore in terms of nanos, but you are sure of this number. All right.

    Heritage stocks in the Great Lakes were mentioned. Could we dredge these lake bottoms? Or would the disadvantages of stirring up the bottom outweigh the advantages of cleaning it?

    Well, the point being made on the number itself is that we really don't know what the biological end points would be for some chemicals. There are different biological end points for their impact on a biological process.

    So whether it's 10^-3, 10^-5, depending on different chemicals, you will see different effects--also synergistic effects between chemicals. Whether we can dredge to 10^-18 I highly doubt, depending on.... In answer to your question, I just don't know.

    The point is that although detection limits have come down a long way from what we were able to do back in the early 1970s and 1980s, now that they're able to make these detections, the relationship between that and the effect on wildlife and on humans has not been.... We just haven't got to that point yet, although we can detect.

    Mr. Chairman, may I add something?

    I would like to add a few words.

    I remarked earlier about the fact that in the Great Lakes, at least, there are designated areas of concern, and in some of these areas of concern, contaminated sediments are the heritage stocks that I think you're referring to.

    So, if I understood your question,

these sediments could be factors that contribute to the reason that these are designated as areas of concern. The remedial actions plans that are developed for each one of them can be different in how they address these legacy stocks of contaminated sediments. In some cases the decision is made, based on science and cost, to actually dredge and remove them, and in some cases the decision is made to leave them or cover them. It's almost on a case-by-case basis, depending on what science tells the managers of these remedial action plans and the government agencies is the risk.

    Did I answer your question?

    There is another element that we have not talked about a lot. That is the traces of hormones and antibiotics in untreated waters, which are found in ever greater concentrations.

    In this connection, I would like to talk to the department’s representatives to find out whether we are going in that direction with our work or whether we have any reduction goals in this area.

    Yes.

    I apologize.

    Mr. Lussier.

    Thank you, Mr. Chair.

    My question is for the representatives of the International Joint Commission. With regard to adjusting the air pollution standards between Canada and the U.S., I am intrigued by your Annex 1 on toxic products and especially the supplement, where you add product lists 1, 2 and 3.

    This is my question: how was the list negotiated with the Americans? The 1972 list changed in 1978, then in 1987. Did it change in 1999, with the introduction of the CEPA?

    Personally, I think that that is a question for the government’s staff who were involved in the negotiations. The International Joint Commission made recommendations to the governments, but it was up to the governments to decide what they were going to do with them. To my mind, it would be better to ask this of the government.

    Does the government have an answer to that? Has the 1978 list changed?

    Yes, it was influenced by the work done by researchers at Environment Canada and Health Canada. Actually two things were affected: the annex on water quality and also the list of substances to be evaluated in the CEPA. So there was always an integration between the two.

    The two governments.

    As for the hot spots, Mr. Weiner, was it the International Joint Commission that identified them?

    Yes, sir.

    Are you responsible for handling them or suggesting remedies for these hot spots?

    Yes. Under the agreement, for example, in worrisome sectors for which there are improvement plans, managers have to submit three progress reports to the Commission. We are responsible for evaluating these reports and giving an opinion.

    Who funds these projects?

    Here, in Canada, the costs are covered by the federal Department of the Environment with the Province of Ontario; and in the U.S., by the United States Environmental Protection Agency, in collaboration with the States.

    All right.

    There are still two minutes.

    The second question is for Mr. Stack.

    You mentioned in your report that there are a lot of organochlorine compounds in the water of the Great Lakes. We also see that, on the list of chemical products in Annex 1, there are a lot of organochlorine compounds.

    In your opinion, to what extent does the pulp and paper industry contribute to that, and what about the chlorine that comes from the filtration and purification plants?

    I'm sorry, I cannot answer that question on the spot. I couldn't break down those 362 for you, where they're coming from.

    Do you think that there is an effect?

    An educated guess would be yes, but I would have to do a little bit of research to answer that question more accurately.

    There is still one minute remaining.

    Ms. Wright, what is the dirty dozen?

    I have a list that I can give the committee. These are substances found in the Toxic Substances Management Policy of 1995. There are 800 pesticides, in addition to dioxin, furan,

polychlorinated biphenyls and HCBs--that's hexachlorobenzene--and that's a contaminant in chlorinated solvents.

    I can provide you with the whole list, if you like.

    Thank you.

    You have done very well: four questions in four minutes, that is fantastic.

    Mr. Vellacott.

    Before I go to my main question, this one intrigues me a bit, in the fact that the definition of virtual elimination applies only to substances released as a result of human activity. Could you give me a bit of background in terms of why substances must be released as a result of human activity rather than being found in nature? Is it that we don't deal with that in any way, or that it's a different matter altogether? I don't know if a departmental official wants to respond to this.

    We do take action on substances like mercury, which are present in the environment both as a result of human activity as well as naturally occurring. The wording in the act, focusing on those primarily from human activities, was to recognize that you wouldn't be able to virtually eliminate substances that are released as a result of naturally occurring events like fires, or naturally occurring phenomena in soils and things like that. It was more a translation of policy into legal terms.

    So we try to address that nevertheless, but not by way of this virtual elimination....

    Correct, using our other powers under the act, primarily the regulation authority under section 93.

    The other question then--

    I want to give Mr. Benevides an opportunity to respond, then I'll come back to you later.

    Thank you, Mr. Chair.

    It's to identify the somewhat problematic language of determining, as is required.... It's the same provision, paragraph 77(3)(b) that I referred to earlier, “determining that the presence of the substance in the environment results primarily from human activity.” I think that's probably impossible to determine. I think that question is different from the question, is the substance a naturally occurring one and is it present in the environment? Does it enter the environment or is it present in the environment and did humans release it?--that question is different from whether it “results primarily”.

    I simply point out that it would be very difficult to determine whether and how it results primarily from human activity, so it's a problematic phrase.

    I don't think there's much disagreement around the table here that we need to act faster in terms of the addition of substances to that virtual elimination list, since we have not had great progress there. But how do we do that in a manner that ensures that the listing and the regulatory limits are based on sound science? If we want to get there faster, maybe we have to get down in terms of the LOQs and so on, or remove that factor. How do we do it while we still make sure it's based on very sound science?

    Mr. Benevides first, and then we'll go to whoever wants to speak after that.

    Thank you, Mr. Chair.

    Before getting to the sound science part of the question, I appreciate the question because it's an opportunity to make it very clear that we believe the virtual elimination list, while perhaps it should be retained in the event that it can be used, is not the approach that should be taken. Rather, the substance that has been proposed for virtual elimination but that still hasn't made it on the list has made it on the list of prohibited substances under the prohibition of certain toxic substances regulations. The evidence from that shows it's a way that can be made to work, whereas we would not continue down that path of the VE list, including for the reasons around level of quantification that we've recommended. That's again why we're proposing to refocus on the overall purpose of VE rather than all of this focus on the level of quantification question.

    Mr. Chair, then maybe I'll reframe it slightly. Would others agree that because of the level of quantification, we just dismiss it as virtual elimination, that particular approach, and go to another approach? Would that be the consensus for others as well?

    If the government wanted to do away with the virtual elimination approach, we wouldn't object, but I think that when you operate a plant and maybe have dioxins coming out of your plant operations, virtual elimination and LOQs and the architecture in here, I believe, make sense. It parallels the way the Stockholm Convention deals with this in its annex C for unintended releases.

    I think the real problem occurs with the issue of trace contaminants in products. We've heard a number of people indicate there's an issue with that. We've heard the government say their preference would actually be to deal with that issue through section 93. As I noted in my submission as well, it makes more sense and is more parallel to the Stockholm Convention. They have a separate annex that treats products differently from the way they treat releases.

    I think the architecture does make sense and is consistent with the Stockholm Convention for plant releases. Now, if Parliament wants to get rid of that, we aren't going to object, but there is some usefulness in having the goal there of continuing to do as well as we can to continuously reduce emissions like dioxin.

    We'll allow Mr. Cullen to be the last speaker at the committee, because we have only a few minutes left after that and we have to discuss our next meeting, which is next Thursday. I'm also at another standing committee at 11 o'clock.

    I'll try to be brief, Chair.

    The main question I wanted to go at, Mr. Weiner, is with respect to the substitution. Part of the question when we raised the spectre of eliminating a chemical was that the cost will be onerous and burdensome; we're going to lose jobs. The economic balance ticks out of whack. You mentioned a study that you folks have engaged in, I believe; was it around substitutions?

    We looked at a variety of economic instruments that could be used to encourage substitution. In fact, we did four case studies of how our proposed virtual elimination framework could actually be applied, so there are some case studies.

    This seems to be a critical component. What we're hearing now, perhaps, about virtual elimination is that things are not getting to the list in Canada, and that maybe it's not the most effective tool. I'm hearing different things. If we go back to the intention to have harmful chemicals removed and one of the blocks is that the companies involved in producing those chemicals say the costs are prohibitive, a sound understanding of the options available to the government seems extremely important.

    That was certainly the commission's view at the time. That is why there was a special report, which I tabled before the committee with the chair. Most of the documents I brought today are in English and French. I believe the one on the use of economic instruments was in English only, but it's worth reading through, Mr. Cullen, if I may say suggest.

    There's the concept of the balance. We've touched on this topic about the politics and the science with a few witnesses. There's this ideal of having science make the decisions on things that are harmful for human health and then having those decisions implemented. The challenge for the politicians becomes balancing out what the cost to society and the economy might be. It seems to me that as CEPA is written right now, section 77 and others allow so much room for interpretation as to what those costs may or may not be that it allows the minister and the government not to act.

    Here's an identified chemical. The scientists--Health Canada, Environment Canada, whoever--have come forward and said it is harmful and causes health detriments and costs and pain, but the minister has a get-out-of-jail card on this one because there may be some cost to industry or society at large. By the act as defined right now, it's too loose.

     Is that a fair assessment, or am I exaggerating the case?

    Mr. Benevides is first, and then Mr. Stack.

    Mr. Chair, in answer to that question, I believe it's a fair assessment.

    Going back very quickly to the previous question, I believe that substitution prevents an opportunity, not a threat, to proponents. I'm not sure if Mr. Stack mentioned a study by the Toxics Use Reduction Institute. There are two studies I want to mention quickly on the subject of the feasibility of substitution and how it's being done in other jurisdictions. The Toxics Use Reduction Institute in Massachusetts published a report this summer called Five Chemicals Alternatives Assessment Study, and another is on the Greenpeace International website called Safer Chemicals Within Reach, clearly involving the REACH legislation in Europe.

    I'd ask, through the chair to the clerk, if we could pull some of those studies up. I think this is an integral part of our conversation that we haven't had yet.

    Mr. Stack, Mr. Lloyd, and then we have to wrap it up.

    I would agree also with the assessment. I don't think anyone is suggesting that the minister shouldn't consider the politics or the socio-economics at play, but rather that those politics not trump human health and the environment at every turn.

    In addition to the fact that when we go looking for substitutes they seem to be easily enough found, the report that Mr. Weiner referred to actually--and I think I quoted it in my submission--says that the costs for virtual elimination are overstated.

    Who are they overstated by?

    By those who would claim.... I forget the actual name. I would have to turn to it.

    By the companies themselves.

    Yes.

    Mr. Lloyd.

    In this section that we've been talking about here a lot, subsection 77(3), for virtual elimination, the intention of Parliament was to make this mandatory. That's why they used the word “shall”. There are conditions that the ministers have to be satisfied about beforehand, and I guess there is some degree of subjectivity there. But if those conditions are satisfied, then the action is mandatory. I would partly agree with your statement, but there is an element of mandatoriness that was intended for virtual elimination. I think that is reflected in the legislation.

    As for the preconditions, though, you do have to be satisfied they're met. Again, that's similar to the Stockholm Convention. I keep going back to that analogy, but I think there are a lot of parallels between it and virtual elimination.

    Thank you, Mr. Cullen.

    Just for your information, if you wish to look at the reports, the reports will be in the clerk's office because they have not been translated. So you can get them in there, if you like.

    We won't have the next five minutes to discuss the next meeting because it's not on the agenda and I've been challenged not to in fact have a discussion on that. Given that's the case, we'll go now to Mr. Harvey.

    Mr. Clarkson told me yes, earlier. What then?

    I have a point of order on our process. A number of things have been presented to the committee in terms of priorities and order. The government has consternations, as does the opposition.

    I agree it would be good if we could discuss what we're going to be discussing next Thursday. But I would need to have at least the consensus of the committee that in fact they wish to proceed over the next five minutes in discussing what we're going to do next Thursday.

    I would make that suggestion then, because I've had members from all sides express concern over the agenda for the committee over the number of weeks.

    I've been told by the clerk we need consent. What's on the agenda is what's on the agenda, and that's what we'll be discussing this far.

    So just to understand--sorry, Mr. Harvey, about the time--as the agenda stands right now, we have bookings for next Tuesday and Thursday already?

    No, we have a meeting next Thursday. At that meeting we will discuss what we're going to be doing at that meeting--this coming Thursday.

    This coming Thursday we're going to have time set aside to plan--

    No, that's what the meeting is. It's to discuss what we're going to do.

    Monsieur Harvey.

    I repeat my question.

    There is a group called the Federal-Provincial-Territorial Committee on Drinking Water, which has been concerned with, and has looked at, the issue of contaminants like pharmaceuticals and personal care products in source water for drinking water.

    There is a group in Health Canada that is concerned with...from the result of CEPA 1999 and its provisions for exemptions, or recognition of other acts, such as the Pest Control Products Act, as CEPA equivalent. The Food and Drugs Act did not meet those requirements, so there is an effort under way to look at environmental impacts of a number of chemicals that were identified as pharmaceuticals, personal care products, and so on.

    That is why I said yes. I am not involved in any of that work directly, but I do know also that several provinces were concerned about the pharmaceuticals showing up in source water and a potential impact on drinking water. I know work is going on, but I can't give you any details.

    How much time is left?

    There are still two minutes.

    Since a little while ago, we have been talking about reducing emissions at the source, which is clearly simpler, to my mind, than having to clean it up once it has got into the environment.

    On the weekend, I spilled a glass of wine on a carpet. Until I had to clean up the mess, I had never realized how much a wineglass could hold. I think it is probably the same thing once a product has spilled into the environment. When the time comes to decontaminate, it is definitely more complicated.

    I do not understand how it is that still today people wonder whether certain products should be completely withdrawn rather than running the risk of spilling them and watching them end up in the environment.

    In 1990, the International Joint Commission, in one of its semi-annual reports, had a few words to say on this subject. Here is exactly what it said in English:

     We said it was time for a choice; should we “continue attempts to manage persistent toxic substances after they have been produced or used, or...eliminate and prevent their existence...in the first place?”

    Mr. Benevides, do you have a short remark to end the meeting?

    Mr. Chair, I only hope the member is not proposing the banning or prohibition of wine. That's my only concern.

    Some hon. members: Oh, oh!

    On that note, it is 11 o'clock. I want to thank the witnesses for coming forward.

    The meeting is adjourned.