By Joe Castrilli, CELA counsel and Fe de Leon, CELA senior researcher
Update (May 31, 2023): Bill S-5 passed third reading on May 30, 2023. It has been sent to the Senate for consideration of amendments made by the House of Commons.
The government of Canada has been given yet another reminder in recent news reports of the problem it is creating for the health of Canadians with its Bill S-5 decision to split the Canadian Environmental Protection Act Schedule 1 List of Toxic Substances into 2 parts and give priority to prohibiting only 13 percent of all the substances in the Schedule (i.e., those in the newly created Part 1 of the Schedule).
The news comes in the form of a ground-breaking study, published in the Journal of the American Medical Association Neurology (“JAMA”) as reported in various Canadian media (e.g., Joshua Chong, “Chemical detected in the air inside Canadian homes also linked to 70% increase in developing Parkinson’s disease, says new report”, The Toronto Star.
The chemical at the heart of the study, the solvent Trichloroethylene (“TCE”), is still used in Canada in connection with dry-cleaning operations, paints and paint removers, and a variety of imported household products, despite the cessation of domestic production in the 1980s. The JAMA study indicated that TCE is highly persistent in soil and groundwater, and can be absorbed through inhalation (e.g., vapour intrusion in homes and businesses due to soil contamination) or ingestion of contaminated food and water, and has been detected in human breast milk, blood, and urine. It has been linked to miscarriages, congenital heart disease, autoimmune disorders, and various cancers. The new JAMA study found that personnel exposed to TCE at one military base in the United States had a 70 percent higher risk of developing Parkinson’s disease in comparison to personnel at a second military base where there was no TCE exposure.
In one of CELA’s early 2022 submissions to the federal government on Bill S-5 we noted that the National Pollutant Release Inventory (“NPRI”) program under CEPA reported between 2013 and 2019 that there was a 109% increase of on-site air emissions of TCE in Canada (i.e., approximately 34,000 kg in 2019 vs 16,000 kg in 2013). The situation in Ontario, as reported under the NPRI program, was even worse; a 595% increase of on-site air emissions of TCE between the period 2013 and 2019 (i.e., approximately 23,700 kg in 2019 vs 3,400 kg in 2013).
The relevance of this to the Bill S-5 bifurcation of Schedule 1 is that TCE has been relegated to the new Part 2 of Schedule 1 (along with 87% of all Schedule 1 toxic substances) where the amendments indicate there is not a priority on prohibiting totally, partially, or conditionally such substances, or subjecting them to analysis for safer alternatives. The European Union, by contrast, lists TCE as a substance that is subject to authorization under its REACH program for substances of highest concern where they are subjected to an analysis for feasible alternatives to their use before determining if they are to stay in European commerce.
CELA has also noted previously that while Bill S-5 would place approximately 5 cancer-causing agents in the new Part 1 of Schedule 1, where there will be a priority on prohibiting them from commerce and subjecting them to examination for feasible alternatives to their use, the Bill places upwards of 40 carcinogens in the new Part 2, where there will be no such priority. In short, Bill S-5 places eight times as many carcinogens in Part 2, as in Part 1, while subjecting the former to less rigorous environmental control than the latter.
This situation would not be as much concern if Bill S-5 had not amended Schedule 1 in this way. But it has and Parliament is very close to final approval of these amendments. Indeed, in debate on Bill S-5 as recently as this week, one member of Parliament had this to say about bifurcation of Schedule 1:
“The nub of what we debated ad nauseam at committee was the whole issue around the two lists, because there are now two lists of toxic substances. We wanted to make sure that we got this right. There are thousands of so-called toxic substances in Canada. Canadians would be bewildered to find that the plastic they use in their kitchen is considered a toxic substance. This delineation of lists is to make sure that the actual toxic substances that need to be regulated, monitored and reduced in the environment, and some completely done away with, are listed on one scale; those that are used for other purposes, as long as they are used effectively, are on a lower scale. That is effectively the major change we looked at here in making sure that we are addressing getting rid of the real toxic substances and getting them out of the environment for Canadians.”
If the situation with TCE is any indication, Parliament did not get this right. Fixing something that wasn’t broken is never an advertisement for getting it right. It is often, as in this case, a recipe for producing an un-forced error that can lead to an environmental health train wreck.
With Bill S-5 scheduled to return to the Senate shortly, perhaps there is still time for sober second thought to prevail.