Federal Government Extols Prohibition, as Substitute for Repealed Virtual Elimination, Authority under Amended CEPA: Are Canadians Being Sold a Bill (S-5) of Goods?
Blog By Joseph F. Castrilli, Counsel and Fe de Leon, Senior Researcher, CELA
Executive Summary: The repeal of virtual elimination authority by Bill S-5 amendments to CEPA has been justified by the federal government in its testimony to the Parliamentary committee studying the matter on the basis that the virtual elimination provisions have not worked, and that existing regulatory authority under the Act to prohibit substances is an adequate substitute. This blog examines these assumptions and comes to a different conclusion.
As the House of Commons standing committee studying Bill S-5, the first major amendments to CEPA in over two decades, grinds closer to completing clause by clause review, the federal government’s justifications for some of its changes to the Act become clearer if more alarming. One change that rings particularly off-key is the repeal of the virtual elimination provisions of CEPA and the government’s explanation for reliance on existing prohibition regulations under the Act as a complete substitute. As set out more fully below, prohibition will not mean virtual elimination and, as applied by the federal government, may not even mean prohibition. To understand the full scope of CELA’s concern requires understanding the historical context for the original inclusion of the virtual elimination principle in the Act in 1999.
History of Virtual Elimination
The story begins with what the 1995 House Standing Environment Committee report envisaged for CEPA’s virtual elimination provisions. What the Standing Committee wanted was: (1) to define those substances which should be tracked for virtual elimination through a sunsetting provision; and (2) the “elimination of the generation, use and release of such substances” [emphasis in original]. The Standing Committee was of the view that what the federal government wanted, however, was to ensure that proponents demonstrate that such substances will not be released. Those are two very different visions.
CELA took a view like that of the Standing Committee. In its submissions to the Senate Standing Committee on Environment and Energy during the Committee’s late 1990s consideration of Bill C-32, CELA noted that:
“One of the recurring themes in the CEPA review has been the goal of addressing the environmental and human health problems arising from the most dangerous substances…
There are a number of substances that are persistent, bioaccumulative and toxic. A significant amount of scientific work has been undertaken with respect to the environmental effects of toxic substances, particularly in the Great Lakes region. Throughout the CEPA review, public interest groups and the Standing Committee on Environment and Sustainable Development agreed that there is no safe level for these types of substances. It is for this reason that one of the most controversial issues in CEPA has been to determine what should be the ultimate goal with respect to these most dangerous substances.
Public interest groups have consistently taken the position that the only legitimate goal for the most dangerous substances is “elimination”. In this context, CELA proposed a definition that sought to eliminate the use, generation and release of substances that meet certain criteria.
….s. 65(1) In this Part, “virtual elimination” means the cessation of the intentional production, use, release, export, distribution or import of a substance or classes of substances.
(2) Where a substance is produced as a by-product of the production or use of another substance, virtual elimination means changes to processes or practices or substitution of material or products to avoid the creation of [the] substance in question.”
CELA renewed this concern when it commented on the final version of the virtual elimination provisions after Bill C-32 was enacted (the provisions currently in force in CEPA):
“The issue concerning virtual elimination has been debated for many years and can be stated as such: are there certain pollutants that are so dangerous owing to certain characteristics that there is no safe threshold? If there is no safe threshold, should not these substances be subject to a phase-out (that is, ensuring that there is no use or generation of the substance in question) rather than some emission limit, no matter how small?
Unfortunately, the virtual elimination goal still fails to meet the expectations of the environmental community. One could argue that the definition is still inconsistent with … the pollution prevention declaration of the act (because the definition is oriented to emission reductions like a pollution control regime rather than use and generation issues as required by a pollution prevention approach) and with the Great Lakes Water Quality Agreement [which as interpreted by the International Joint Commission views virtual elimination as meaning the complete elimination of persistent toxic substances].
The 2007 House of Commons Standing Committee review of CEPA, (the first to review the current version of the Act), sounded some of the same themes of concern as had been raised a decade earlier. The 2007 Standing Committee report noted that the virtual elimination provisions of CEPA had yet to be used and were “an abject failure”. Part of the problem in the view of the 2007 Standing Committee was the requirement that before the Minister could place a substance on the virtual elimination list established under section 65(2) of the Act the Minister first had to specify a level of quantification for the substance and only allow releases of the substance below that level of quantification. Because establishing a level of quantification was often extremely difficult to do, few substances ever made it on to the list. As a result, the 2007 Standing Committee recommended that the requirement be eliminated. In CELA’s view, the problem with the level of quantification requirement stemmed from only trying to control releases of a substance rather than eliminate the substance from commerce altogether.
The 2007 Standing Committee report also noted that because of the difficulty in establishing a level of quantification, the federal government resorted to using prohibition regulations under the Act as a means of managing substances of greatest concern. However, the committee was clear that prohibition regulations were a means to achieving, not a substitute for, the objective of virtual elimination.
The 2017 Standing Committee review of CEPA described the virtual elimination provisions of the Act as “dysfunctional” noting that the federal government was proposing a prohibition approach as a basis for repealing the virtual elimination provisions because: (1) implementing virtual elimination duplicates the risk management requirements that already exist by virtue of adding a substance to Schedule 1 and prohibiting by regulation use of the substance; and (2) virtual elimination only works in relation to point source releases of a substance, not diffuse releases of a substance.
However, the report of the 2017 Standing Committee also noted the testimony of those witnesses who pointed out that historically the federal government’s use of the Prohibition of Certain Toxic Substances Regulations (now SOR/2012-285, as amended) to achieve virtual elimination did not always result in prohibiting toxic substances and the products that contain them. This is borne out by reviewing these regulations and their schedules which, while they sometimes prohibit certain substances, also authorize permitted uses and concentration limits for many other toxic substances, thus allowing them to remain in commerce and, potentially, the environment. We have more to say about the implementation of these regulations below.
2023 Testimony of Federal Officials
Attempts to get the House Standing Environment Committee to reverse the Bill S-5 amendments repealing the virtual elimination provisions from the Act have been met with the same explanations from federal officials as noted above: (1) virtual elimination has proven unworkable; (2) it has had almost no impact on federal government decision-making or on prevention of actual risks; (3) while virtual elimination was defined as reducing the quantity or concentration of a substance in a release below the level of quantification specified by the Minister with the level of quantification in turn defined as the lowest concentration that can be accurately measured, in practice it frequently became impossible to quantify or measure the emissions, particularly if they were diffuse, as opposed to stack, emissions; (4) retaining virtual elimination authority and the virtual elimination of substances list the existing Act requires would result in a “proliferation of lists” under the Act that the federal government was concerned about; and (5) consequently, the federal government instead turned to its prohibition regulatory authority in the existing Act as a substitute for virtual elimination, a practice it now wants to rely on exclusively under the Bill S-5 amendments.
Problem 1 with Federal Explanations: Level of Quantification Approach Doomed Virtual Elimination Authority from the Outset
In 1999, the federal government’s preferred approach to achieving virtual elimination, but no one else’s except perhaps industry’s, was to address it through the level of quantification approach. The national environmental community advocated eliminating troublesome chemicals, not trying to fine-tune their releases to the environment. The federal approach had all the earmarks of a fatally flawed pollution abatement strategy. Inevitably, as the above history of Parliament’s review of the virtual elimination authority under CEPA demonstrated, the federal government’s preferred approach proved too difficult to implement (because it requires that a level of quantification be specified before a substance can be released below that level and is impractical when dealing with diffuse or fugitive emissions). The amendments that CELA recommended in 1999, noted above, and still advocates in 2023, would have nipped this problem in the bud. In short, the regulatory focus for substances that are persistent, bioaccumulative, and carcinogenic, for example, should have been, and still should be, on eliminating them from the environment altogether, not trying to engage in head of a pin measurements that end up frustrating control of releases to the environment. That was problem number 1 with the provisions Parliament enacted in 1999 at the behest of the federal government and is now the problem with the federal justification for the Bill S-5 amendments abandoning virtual elimination authority altogether in favour of “prohibition”.
Problem 2 with Federal Explanations: The Federal Government Should be Concerned with a Proliferation of Chemicals not a “Proliferation of Lists”
One federal justification for Bill S-5’s not retaining virtual elimination authority and the virtual elimination of substances list the existing Act requires was a concern about a “proliferation of lists” under the Act. This federal concern is a head scratcher. Twenty years ago, there were over 23,000 substances manufactured or imported into Canada on a commercial scale. Today there are over 28,000 such substances. A roughly 22 percent increase. If anything, Canadians are concerned about a proliferation of chemicals, not a proliferation of lists to identify and control them.
Problem 3 with Federal Explanations: As Implemented by the Federal Government, Prohibition is not an Adequate Substitute for Virtual Elimination
The federal government touts reliance on its existing Prohibition of Certain Toxic Substances Regulation, SOR/2012-285 as a complete substitute for virtual elimination. There are several reasons to be concerned about this reliance. First, this regulation is based on the general authority of the Act to prohibit totally, partially or conditionally. In the normal course, if one is talking about virtual elimination one is talking about total, not partial or conditional, prohibition.
Second, even a cursory review of the text of this regulation should give one cause for concern about its ability to act as a substitute for virtual elimination. This is illustrated below, based on the first two schedules in the regulation:
Table 1: Headings for Schedules 1 and 2 of Prohibition of Certain Toxic Substances Regulation, SOR/2012-285
Schedule 1 – Parts in Schedule
Part 1 – Prohibited Toxic Substances
Part 2 – Prohibited Toxic Substances Unless Present in Manufactured Items
Part 3 – Prohibited Products
Schedule 2 – Parts in Schedule
Part 1 – Permitted Uses – All Activities
Part 1.1 – Permitted Usues – Certain Activities
Part 1.2 – Permitted Uses – Use Only
Part 2 – Temporary Permitted Uses
Part 3 – Permitted Concentration Limits
Part 3.1 – Concentration Limit for Certain Uses
Part 4 – Reporting Thresholds
Source: Schedules 1 and 2 of Prohibition of Certain Toxic Substances Regulation, SOR/2012-285
The first two schedules have a total of 10 parts. Many of them on their face have exceptions to the prohibition, thus allowing permitted uses, temporary permitted uses, and permitted concentrations. Implicit in such headings, is that a substance under one of these parts will continue in commerce and raises the question of whether there will be environmental exposures. In this regard, Schedule 2, Part 1: “Permitted Uses – All Activities” includes 2-Methoxyethanol, which the schedule indicates can be used for adhesives and coatings for aircraft refinishing and the semiconductor manufacturing process. Canada’s risk assessment of the substance concluded that it is a toxic substance harmful to health with animal studies indicating a wide range of toxic effects such as malformation in the developing fetus, and adverse effects on male reproduction, blood and the immune and nervous systems. The assessment went on to indicate that emissions of the substance from industry are not in concentrations high enough to pose risks to the environment. However, Canada’s National Pollutant Release Inventory (“NPRI”) data shows total disposal (on-site and off-site) of 2-Methoxyethanol in Canada in 2021 was 63.63 tonnes, up from 39.57 tonnes in 2017, a 61 percent increase since 2017.
Third, even the Schedule 1, Part 1 list of “Prohibited Toxic Substances” turns out not to be a list of totally prohibited substances. In this regard, Hexachlorobenzene (“HCB”) appears in Part 1. Canada indicates that HCB, though not used commercially in Canada since the early 1970s, is released to the Canadian environment in trace amounts as a by-product from the manufacture and use of chlorinated solvents and pesticides, through long-range transport and deposition, and in emissions from incinerators and other industrial processes. Short-term exposure to very high levels of HCB may cause adverse effects on the nervous system such as weakness, tremors, convulsions, skin sores, liver and thyroid effects. Long-term exposure can cause damage to the liver and reproductive system and can cause developmental effects. Canada indicates that HCB is prohibited globally under international conventions (Stockholm Convention and the Protocol on Persistent Organic Pollutants) and the federal government relies on the Prohibition of Certain Toxic Substances Regulation, SOR/2012-285 to ensure compliance with its international obligations. However, NPRI data shows total releases to air of HCB in Canada in 2021 were 8403.58 grams, up from 3510.97 grams in 2017, a 139 percent increase since 2017.
Review of release or disposal trends with respect to other toxic substances in the Schedules to this regulation was largely not possible because they are not covered by the NPRI, whereas release information of many of their counterparts under the Toxics Release Inventory (“TRI”) in the United States is available. Does this mean that the NPRI is deficient in comparison to the TRI, or does it mean that there is no disposal or releases of other substances in Schedule 1, Part 1 of the regulation? It seems like an appropriate question to be answered for the House Standing Environment Committee in its continuing review of Bill S-5 and the federal government’s reliance on this regulation as a substitute for virtual elimination.
Finally, whether disposal of 2-Methoxyethanol, or release to air of HCB, poses environmental risks are also open questions. But it should be concerning that both disposal of 2-Methoxyethanol and air releases of HCB are occurring, let alone increasing. These two examples provide some information about what “prohibition” looks like under this regulation. What it does not look like is “virtual elimination”.
Photo of Lake Nippising during a beautifully colourful sunset in North Bay, Ontario, Courtesy of Shutterstock.