Blog: Why federal toxics law amendments need to address problems with carcinogens

This article was originally published on May 16, 2022 by The Lawyer’s Daily, part of LexisNexis Canada Inc.
Photo courtesy of  Aqnus Febriyant

Arsenic has been known since the age of the Roman Empire as the king of poisons. In the modern era it is a known or suspected cancer-causing agent and listed as a toxic substance under Schedule 1 of the Canadian Environmental Protection Act (CEPA). It is also symptomatic of Canada’s inability to curb emissions of a wide variety of such substances in the environment. Moreover, despite problems in controlling arsenic and other carcinogens, Canada has failed to address this problem in Bill S-5, the first major amendments to CEPA in over 20 years now being considered by the Senate. 

Playing regulatory whack-a-mole with dangerous chemicals 

The Canadian Environmental Law Association (CELA) examined 13 years of data on emissions of 43 chemicals that agencies like the International Agency for Research on Cancer (IARC) have declared to be known or suspected cancer-causing chemicals and that are also designated as “toxic substances” under CEPA. We looked at these emissions in three provinces — Ontario, Quebec and Alberta. What we found was that over the period 2006 to 2018 the federal government has been playing regulatory whack a-mole with some of the most dangerous chemicals on the planet. 

What we mean by this is that while on-site emissions to air of cancer causing agents that meet the definition for a toxic substance under CEPA were decreasing over this 13-year period, deposits of these same dangerous substances to land, such as through on-site disposal, were increasing. This kind of offset; i.e., moving a known or suspected carcinogen from one environmental pathway (air) to another (land) does not represent progress in protecting human health and the environment. 

It merely represents putting a different part of the environment and a different group of people at risk. It is not a solution to the problem of ever-expanding chemical production, which is occurring globally, as well as in Canada, and certainly not for potentially carcinogenic chemicals the federal government itself has branded “toxic,” and purports to impose controls upon. 

Looking at individual chemicals, such as arsenic, revealed a similar pattern. The CELA review found that in Quebec, for arsenic and its compounds, on-site air emissions increased 49 per cent during the period 2006 to 2018. However, on-site disposal/land release of arsenic and its compounds increased an astounding 10,828 per cent during the same period. 

While on-site air emissions of carcinogens have been reduced in Ontario, for example, over this 13- year period and CEPA is undoubtedly a substantial contributing factor, Ontario’s on-site air emissions of CEPA-toxic cancer-causing agents were still on the order of one million kilograms per year during this period. On-site disposal/land releases in Ontario were on the order of tens of millions of kilograms per year during this 13-year period and rising. As a result, the federal government cannot avoid responsibility for the continuing magnitude of emissions of substances it has itself designated toxic under CEPA. With the repeal of Ontario’s Toxics Reduction Act, which went into effect in December 2021, CEPA is really the only line of defence for addressing pollution prevention issues in Canada’s most populous province. 

What Bill S-5 has not done but should do 

In short, Bill S-5 does not appear to reflect the warnings contained in industry pollution data provided to, and reported annually upon, by the federal government. The data make it plain that business as usual should not be the option of choice, particularly if we are to protect vulnerable populations — children, women, workers, Indigenous peoples and people of colour — who are disproportionately at risk from exposure to CEPA-toxic cancer-causing agents. 

However, problems with the existing statute are left largely unaddressed by Bill S-5, particularly Parts 4 and 5 of the Act pertaining to pollution prevention and control of toxic substances, including: 

  • failing to make pollution prevention plans mandatory, instead of discretionary, for any toxic substance listed in Schedule 1 (this failure has resulted in only one-sixth of all substances in the Schedule in the last 20 years having a plan, a rate that, if continued, will mean that all existing 150 toxic substances in Schedule 1 will not have a plan before the year 2100);
  • stances, as predominantly a pollution abatement measure where only emissions are controlled — something a 1995 house standing environment committee warned against doing — has allowetreating the pollution prevention plan requirement in the Act, meant to control the creation and use of toxic subd such substances to stay in Canadian commerce and the environment;
  • failing to make substitution of safer alternatives to toxic substances a central focus of amendments to the Act placing Canadians and the environment at risk, and Canada at a disadvantage relative to other countries that have done so;
  • proposing to recognize a right to a healthy environment but failing to provide an enforceable remedy under Part 2 of the Act that would make the right effective (the existing remedy provision in CEPA has been unused for 23 years because of a wide variety of procedural barriers to its use recognized as a problem by previous house standing environment committees that have examined the issue);
  • proposed amendments in Bill S-5 relating to CEPA’s Schedule 1 List of Toxic Substances if enacted could create legal and constitutional problems that would invite unnecessary litigation:i) by undermining the constitutional law foundation for the Act, which is based on the criminal law power, by no longer identifying the Schedule as a list of toxic substances — something a 2007 house standing environment committee report said should not be done; andii) dividing the list of 150 substances in the Schedule into two classes with much the larger class, consisting of almost 90 per cent of the full list of substances in Schedule 1, including 40 of the 43 carcinogens in this group of 150 substances, being made subject to potentially less stringent measures. 

These and other problems with Bill S-5 are capable of being remedied. The federal environment minister has stated that he is open to amendments. The Senate now has the opportunity to advance that goal.
Joseph F. Castrilli is counsel and Fe de Leon is senior researcher at the Canadian Environmental Law Association