Committee recommends major overhaul of CEPA

On June 15, 2017, the Standing Committee on Environment and Sustainable Development released its study on the Canadian Environmental Protection Act, 1999. Entitled Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999, the report proposes to improve protections from chemicals of high concern by requiring industry to prove their safety prior to use.

Significantly, the Committee recommends that Part 5 of CEPA be amended to require "a reverse-burden approach for a subset of substances that are of very high concern, including carcinogenic, mutagenic, and toxic to reproduction; very persistent and very bioaccumulative; and persistent, bioaccumulative and toxic. "Substances in any of these categories should be prohibited unless industry can provide the government with adequate certainty that the substances can be used or emitted safely in specific applications and that there are no feasible substitutes," the Report notes (Recommendation #41).

Further, the Committee recommends that parts 3 and 5 of CEPA be amended to expressly allow information-gathering and regulation-making to target the design and functioning of products, and to apply to manufacturers, importers and/or distributors of the products, rather than only to the users. (Recommendation # 55).

Generally, the committee’s majority report acknowledges the need for stronger measures to address the risk of long-term and continuous exposures to toxic chemicals and tighter timelines for regulatory action. In all, the report contains some 87 recommendations designed to improve chemicals management under CEPA. These recommendations include:

 

• a greater emphasis on environment rights (Recommendation # 5) along with greater powers to enable citizens to bring environmental civil actions, where government is found negligent in its duties, or when the Act is being violated (Recommendation #18);
• lowering the threshold for bringing an environmental protection action from an allegation that the offence caused ‘significant harm’ to that it caused ‘harm’ to the environment (Recommendation #30);
  
• revising the definition of "toxic" to ensure that it addresses endocrine disruptors (Recommendation #39) and bringing in specific measures to deal with this group of substances (Recommendation #44);
• reinforcing a consumers ‘right to know" through mandatory hazard labelling of all products containing toxic substances (Recommendation # 15);
• modifying the Chemicals Management Plan website to include a system whereby anyone can submit data, evidence, and arguments for consideration (Recommendation # 24);
• introducing a mandatory substitution test to ensure that decisions about how to regulate toxic substances are based, in part, on information about substitutes, with a goal of replacing toxic substances with safer alternatives (Recommendation # 58);
• automatically adding substances to the List of Toxic Substances once a finding of toxicity by the Ministers has been made (Recommendation # 52);
• disclosing the explicit chemical or biological names of substances or living organisms after risk management instruments have been put in place (Recommendation #16);
• setting legal minimums for air and water quality standards (currently there are only non-binding objectives); and .
• introducing special protections for vulnerable populations, including children, the elderly, First Nations and poor communities, in recognition that they are more likely to suffer from the effects of poor environmental health

The Committee also recommends that the National Pollutant Release Inventory (NPRI) be improved by:

•removing the exemption for oil and gas exploration and drilling;

•including separate NPRI spills reporting requirements in CEPA;

•requiring reports on facility operational performance on pollution prevention and reduction;

•including daily, weekly and monthly pollution data;

•lowering thresholds for NPRI reporting; and

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

 

CWWA will be following these intitiatives closely. The proposed changes to the NPRi seem especially onerous for industry, and would duplicate some existing legislative requirements, especially around spills. More detailed data would also make synchronization with provincial programs more difficult.