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ENVI Committee Report

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LIST OF RECOMMENDATIONS

Recommendation 1

The Committee recommends that subsection 343(1) of CEPA be amended to require a Parliamentary review every 10 years rather than every 5 years.

Recommendation 2

The Committee recommends that CEPA be amended to expand and strengthen duties and rights for transparency, public participation, accountability mechanisms and consultation.

Recommendation 3

The Committee recommends that the preamble of CEPA be amended:

  • to recognize a right to a healthy environment;
  • to mention the importance of considering vulnerable populations in risk assessments; and
  • to recognize the principles put forward in the United Nations Declaration on the Rights of Indigenous Peoples.

Recommendation 4

The Committee recommends that the government consider amending CEPA to include the right to a healthy environment in the administrative duties of the Government of Canada (section 2), in the development of objectives, guidelines, and codes of practice (sections 54 and 55), in the assessment of the risks of toxic substances (section 76.1), and the development of risk management tools (section 91).

Recommendation 5

The Committee recommends that a series of substantive and procedural improvements be incorporated into the various sections of CEPA to give greater force and effect to environmental rights, including as set out in recommendations 2, 4, 15–34, 36, 37, 39–50, 52, 54, 56–60, 62, 75, 76 and 80.

Recommendation 6

The Committee recommends that – in consultation with Indigenous peoples – the government revisit and potentially amend the definition of “aboriginal government” in CEPA to better reflect current Indigenous governance structures.

Recommendation 7

The Committee recommends that section 9 of CEPA be amended to strengthen the criteria for the establishment of administrative agreements and enhance monitoring and reporting of the performance of entities that enter into such agreements with the Minister.

Recommendation 8

The Committee recommends that the provisions of CEPA regarding the criteria required to establish equivalency agreements be strengthened, and that the requirement for monitoring and reporting of performance under any agreements by the affected province and by Environment and Climate Change Canada be strengthened.

Recommendation 9

The Committee recommends that subsection 10(3) of CEPA be amended to add the following third precondition to a declaration of equivalent provisions: that the government of the jurisdiction has in place an enforcement and compliance policy similar to that issued by the Minister providing for effective enforcement and compliance of  the provisions described in the two current preconditions.

Recommendation 10

The Committee recommends that CEPA be the principal statute for regulating products containing toxic substances.

Recommendation 11

The Committee recommends that CEPA be amended to formally allow the Minister of Health to be the lead in developing and recommending instruments and regulations under CEPA for a toxic substance in circumstances where the risks posed by the toxic substance are  health related.

Recommendation 12

The Committee recommends that CEPA be amended to provide the Ministers with the express authority to request the following information under section 71 for the purpose of assessing whether a substance is toxic or capable of becoming toxic:

  • other information, such as methodology, data, models used, etc.;
  • samples of the toxicological tests and/or the other tests; and
  • any other information relevant to the assessment of a substance.

Recommendation 13

The Committee recommends that CEPA be amended to allow sections 46 and 71 notices to require that information be updated if it changes and to ensure that there are clear, consistent time frames (e.g., 7 years) for the maintenance and retention of records related to regulations, instruments and information gathering, but also allow these timeframes to be tailored if needed, in specific circumstances.

Recommendation 14

The Committee recommends that the Ministers seek out relevant and reliable data from other jurisdictions, including data from REACH, so that Canadian assessors may benefit from other efforts deployed to conduct those assessments.

Recommendation 15

The Committee recommends that, following stakeholder consultations on the implementation of hazard labelling, CEPA be amended to require mandatory hazard labelling of all products containing toxic substances.

Recommendation 16

The Committee recommends that sections 88 and 113 of CEPA be amended to require the disclosure of the explicit chemical or biological names of substances or living organisms when risk management instruments are in place for the substance or living organism.

Recommendation 17

The Committee recommends that sections 88 and 113 of CEPA be amended so that a masked name may be used for five years, and after that time the government may release the explicit chemical or biological name of a substance or living organism, subject to providing the proponent with an opportunity to demonstrate that the chemical or biological name should remain confidential for a longer period of time.

Recommendation 18

The Committee recommends that section 313 of CEPA be amended  to specify that information provided to the Minister under the Act is presumed to be public and to require persons who submit a request for confidentiality under section 313 to provide the Minister with justification to support the request.

Recommendation 19

The Committee recommends that the National Pollutant Release Inventory be improved by:

  • Removing the exemption for oil and gas exploration and drilling;
  • Including separate NPRI spills reporting requirements in CEPA (amending sections 46 and 201);
  • Requiring reports on facility operational performance on pollution prevention and reduction;
  • Including daily, weekly and monthly pollution data;
  • Considering lowering thresholds for NPRI reporting; and
  • Amending CEPA to enable public input to NPRI reports and requiring timely government response.

Recommendation 20

The Committee recommends that CEPA be amended to require that  all substances known to be persistent and/or bioaccumulative be included in the National Pollutant Release Inventory.

Recommendation 21

The Committee recommends that CEPA be amended to require mandatory monitoring of listed toxic substances.

Recommendation 22

The Committee recommends that CEPA be amended to define  “hot spots.”.

Recommendation 23

The Committee recommends that CEPA be amended to require publication every five years of a comprehensive state of the environment report and that such a report incorporate specific environmental justice reporting on exposure levels in hot spots and assessments of health inequality.

Recommendation 24

The Committee recommends that the Chemicals Management Plan website be modified to include a system where anyone can submit data, evidence, and arguments for consideration.

Recommendation 25

The Committee recommends that CEPA be amended to require notice in the Canada Gazette for a 30-day comment period when a person submits a new substance or living organism notification under subsection 81(1) or subsection 106(1).

Recommendation 26

The Committee recommends that CEPA be amended to establish a more open, inclusive and transparent risk assessment process that better enables public participation in the evaluation of new living modified organisms.

Recommendation 27

The Committee recommends that CEPA be amended such that subsection 54(3) and similar sections of the Act require public consultation and the publication of peer-review comments.

Recommendation 28

The Committee recommends that CEPA be amended to ensure that provisions that set out a requirement for consultation with the provinces and territories also require consultation with Indigenous peoples.

Recommendation 29

The Committee recommends that CEPA be amended to expand the scope of the Environmental Registry to consolidate all postings  and provide notice and comment opportunities for all applications and proposed regulations, policies, guidelines, approvals and permits under federal environmental legislation.

Recommendation 30

The Committee recommends that section 22 of CEPA be amended to lower 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 31

The Committee recommends that section 22 of CEPA be amended to better enable public participation and accountability in the implementation and enforcement of CEPA by authorizing environmental protection actions, adjudicated as civil proceedings based on the balance of probabilities, in the following circumstances:

  • The Minister(s) have not undertaken a specific mandatory act or duty under CEPA; or
  • Any person or government body has violated, is violating or is reasonably likely to violate CEPA, including regulations, orders and other instruments thereunder.

Recommendation 32

The Committee recommends that the government consider authorizing mediation, interim orders, and specialized cost rules (whereby costs shall not be assessed against anyone bringing such an action, unless it is determined that the action is frivolous, vexatious or otherwise brought in bad faith) in order to ensure that environmental protection actions will be accessible to the public and so that Canadians may, in limited and appropriate circumstances, play a role in ensuring the application of CEPA without personally suffering damages.

Recommendation 33

The Committee recommends that CEPA be amended to include safeguards to ensure environmental protection actions are brought responsibly, including a mandatory 60-day notice of intent to bring a section 22 action, non-duplication of government enforcement actions, and provision for early dismissal of actions that are frivolous, vexatious or otherwise brought in bad faith.

Recommendation 34

The Committee recommends that the request for investigation provision in section 17 of CEPA be maintained, but that CEPA be amended to remove that as a prerequisite to bringing an environmental protection action.

Recommendation 35

The Committee recommends that CEPA be amended to set out the legal framework for the federal government to work with provinces, territories and Indigenous peoples to address instances of inter-provincial air and water pollution.

Recommendation 36

The Committee recommends that CEPA be amended to require the federal government to develop legally binding and enforceable national standards for air quality in consultation with the provinces, territories, Indigenous peoples, stakeholders and the public.

Recommendation 37

The Committee recommends that CEPA be amended to require the federal government to develop legally binding and enforceable national standards for drinking water in consultation with the provinces, territories, Indigenous peoples, stakeholders and the public.

Recommendation 38

The Committee recommends that:

  • Environment and Climate Change Canada and Health Canada address the lack of understanding and persistent misinformation – that pollution prevention planning does not work because it is not a regulation, is not used against the most toxic substances and is not enforceable – which are affecting the use of the Part 4 provisions of CEPA;
  • Environment and Climate Change Canada and Health Canada encourage promotion of the use of Part 4 authorities, including  by designating a leader for pollution prevention planning in  both departments;
  • CEPA be amended to provide authority for the Minister of Health to use the Part 4 provisions for those substances that are exclusively toxic to human health;
  • Environment and Climate Change Canada and Health Canada make results of pollution prevention planning notices publicly available more quickly than has been the case with some; and
  • Environment and Climate Change Canada and Health Canada be required to periodically publish a report illustrating the effectiveness of all pollution prevention plans.

Recommendation 39

The Committee recommends that the government revise the definition of “toxic” to ensure that it addresses endocrine disruptors.

Recommendation 40

The Committee recommends that sections 64 and 68 of CEPA be amended to expressly address substances that are dangerous at low‑level quantity thresholds.

Recommendation 41

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.

Recommendation 42

The Committee recommends that section 3 of CEPA be amended to include a broad definition of the term “vulnerable populations.”.

Recommendation 43

The Committee recommends that CEPA be amended to require that the Ministers or their delegates, when determining if a substance is toxic, assess exposures of vulnerable populations and marginalized communities, including exposures during critical windows of vulnerability, with appropriate use of safety factors and that this section clarify that, for some substances, there may be no safe exposure thresholds.

Recommendation 44

The Committee recommends that Environment and Climate Change Canada and Health Canada implement measures, thresholds, techniques and reporting requirements specifically addressing endocrine disruptors.

Recommendation 45

Further to Recommendations 22 and 23, the Committee recommends that Environment and Climate Change Canada undertake, in consultation with the provinces, territories, Indigenous communities and the public, an assessment of potential hot spots or areas of potential intensified or cumulative emissions of toxins to ensure protection for vulnerable persons.

Recommendation 46

The Committee recommends that CEPA be amended in Part 5 by adding a new requirement that the Ministers or their delegates, when determining if a substance is toxic, assess aggregate exposure to and cumulative and synergistic effects of the substance, and that the Ministers use an assessment process that looks at multiple points of exposure of a chemical substance.

Recommendation 47

The Committee recommends that Environment and Climate Change Canada and Health Canada adopt a life-cycle approach to assessing and managing substances under CEPA.

Recommendation 48

The Committee recommends that the government update the outdated Persistence and Bioaccumulation Regulations to be consistent with the best available science and standards, including those of other OECD jurisdictions.

Recommendation 49

The Committee recommends that CEPA be amended to confirm,  for greater clarity, that a substance need not be persistent or bioaccumulative to be determined to be toxic under CEPA.

Recommendation 50

The Committee recommends that Part 5 of CEPA be amended to include a mandatory assessment or reassessment of a substance, within a prescribed timeline, when another OECD country has placed new restrictions on it, or when the use of the substance in Canada has significantly expanded since the original assessment was completed, or when new scientific findings respecting the substance’s toxicity come to the attention of the Minister.

Recommendation 51

The Committee recommends that CEPA be amended to require every person who transfers a substance or living organism that is subject to a significant new activity notice and that is on the Domestic Substances List to notify all persons to whom the substance or living organism is transferred of an obligation to comply with the significant new activity notice.

Recommendation 52

The Committee recommends that substances be added to the List of Toxic Substances automatically upon a finding of toxicity by the Ministers of Health and Environment and Climate Change.

Recommendation 53

The Committee recommends that CEPA be amended to add an explicit authority to remove a substance from the Domestic Substances List when it is not in commerce. Removal should involve a transparent process, with opportunity for public comment.

Recommendation 54

The Committee recommends that CEPA be amended to update, improve and prescribe timelines for all actions under CEPA, such as for listing a substance on Schedule 1 after the conclusion of a screening assessment; for producing draft measures to address all risks from newly listed substances; and for finalizing those measures.

Recommendation 55

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 or distributors of the products, rather than only to the users of the products.

Recommendation 56

The Committee recommends that CEPA be amended to require investigation of the effects of any proposed or final regulation or instrument on vulnerable populations and marginalized communities. Similarly, the Act should also be amended to require investigation of aggregate exposures, and cumulative and synergistic effects, in determining how to regulate a toxic substance.

Recommendation 57

The Committee recommends that CEPA be amended to add a mandatory duty to assess alternatives as part of all screening assessments of existing substances.

Recommendation 58

The Committee recommends that CEPA be amended to add a mandatory substitution test to the regulation of substances under Part 5, 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 59

The Committee recommends that CEPA be amended to ensure that alternative assessments include the following aspects:

  • consideration of the opportunities, costs and feasibility of adopting and implementing safer alternatives;
  • clear recommendations for the elimination, or limited use of a toxic substance;
  • efforts to ensure transparency across the supply chain regarding key information and the process to be used in the development of alternatives assessments; and
  • review of data on a consistent basis to ensure up-to-date and accurate information.

Recommendation 60

The Committee recommends that CEPA be amended to mandate  that the Minister prepare national safer alternatives action plans for substances for which reports on safer alternatives have been prepared.

Recommendation 61

The Committee recommends that Environment and Climate Change Canada revisit the virtual elimination regime and implement a more effective regime.

Recommendation 62

The Committee recommends that Health Canada and Environment  and Climate Change Canada conduct studies on the effects of electromagnetic radiation on biota, review the adequacy of the current guidelines provided in Safety Code 6 and report their findings back to the Committee.

Recommendation 63

The Committee recommends that the CEPA regime for animate products of biotechnology be amended:

  • to provide clear rules on how and under what circumstances the right to introduce a new substance or organism is transferable;
  • to provide clear rules on the approval process for new uses by the party introducing the substance or organism and by others they may sell the substance to; and
  • to change the name of Part 6 from Animate Products of Biotechnology to a term more widely used such as Genetically Engineered or Modified Organisms.

Recommendation 64

The Committee recommends that the Minister of Environment and Climate Change lead a process involving other relevant federal departments and including meaningful public consultation to put in place an effective and transparent regulatory regime for genetically modified organisms.

Recommendation 65

The Committee recommends that CEPA be amended to authorize expressly the making of regulations respecting labelling of fuel dispensers.

Recommendation 66

The Committee recommends that subsection 140(2) of CEPA be amended to provide that regulations may be made if they “contribute to” the prevention of, or reduction in, air pollution.

Recommendation 67

The Committee recommends that Environment and Climate Change Canada work with the Canadian Trucking Alliance to establish testing protocols for greenhouse gas reduction qualifying technology to ensure that such technology and systems are suitable for use  in Canada.

Recommendation 68

The Committee recommends that Environment and Climate Change Canada consult with the Canadian Trucking Alliance on the degree to which the distance of limp mode should be extended.

Recommendation 69

The Committee recommends that CEPA be amended to empower Environment and Climate Change Canada to take action against anyone who manufactures, sells or installs equipment that interferes with vehicle emissions controls.

Recommendation 70

The Committee recommends that CEPA be amended to provide authority to regulate the full suite of small marine diesel engines found in Canada.

Recommendation 71

The Committee recommends that future regulations relating to small marine diesel engines contain a grandfather clause to ensure that Indigenous peoples will not be barred from conducting traditional harvest activities.

Recommendation 72

The Committee recommends that CEPA section 155 be amended to clarify options in addition to removing a vehicle, engine, or equipment from Canada, including:

  • bringing the vehicle, engine or equipment into compliance with the regulations prior to the expiry of the temporary importation period, such that it meets the emissions standards of its prescribed class and the importer has complied with all prescribed reporting and testing requirements;
  • donating the vehicle, engine or equipment prior to the expiry of the temporary importation period, subject to rules that would be set out in the regulations; and
  • requesting an extension of the temporary importation period by submitting a request to the Minister justifying the extension (e.g., additional tests needed, close to bringing vehicle, engine, or equipment into compliance with regulations).

Recommendation 73

The Committee recommends that CEPA’s Notice of Defect provisions be amended to expressly include:

  • defects in compliance with emissions standards;
  • label deficiencies;
  • a requirement for companies to cover the cost of corrections; and
  • an authority for the Minister to order a company to submit a notice of defect.

Recommendation 74

The Committee recommends that CEPA be amended to expressly provide the authorities to suspend or revoke permits issued under subsection 185(1), in specified circumstances.

Recommendation 75

The Committee recommends that notices and manifests required under the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations should require the provision of information on the presence of CEPA-toxic substances in waste streams, or the quantities or concentrations in which such substances might be present.

Recommendation 76

The Committee recommends:

  • that CEPA be amended to provide for a legislated framework and a promulgated regulatory regime on federal lands;
  • that the government develop specific objectives, guidelines and codes of practice on federal lands excepting aboriginal lands; and
  • that the federal government initiate consultations with Indigenous peoples on the development of specific objectives, guidelines and codes of practice on aboriginal lands and promulgate a regulatory regime.

Recommendation 77

The Committee recommends that the Environmental Violations and Administrative Monetary Penalties Act be amended to authorize the refusal or revocation of a permit for unpaid administrative monetary penalties.

Recommendation 78

The Committee recommends that the Environmental Violations and Administrative Monetary Penalties Regulations be brought into force immediately.

Recommendation 79

The Committee recommends that Environment and Climate Change Canada hold an open and transparent review of the Compliance and Enforcement Policy for CEPA.

Recommendation 80

The Committee recommends that Environment and Climate Change Canada design a new, online, searchable, public environmental enforcement database while respecting privacy concerns as required under the law.

Recommendation 81

The Committee recommends that Environment and Climate Change Canada work with provincial enforcement officials to harmonize environmental testing and sampling requirements.

Recommendation 82

The Committee recommends that CEPA be amended to expressly provide for the tools necessary to establish and operate a properly functioning auctioning system, such as the authority to sell tradeable units either at a fixed price or by competitive bidding.

Recommendation 83

The Committee recommends that CEPA be amended to expressly allow the Minister to issue an interim order (similar to that in section 163), to be used for any regulation under CEPA, to the extent necessary to maintain alignment with a foreign regulation and subject to notice provisions.

Recommendation 84

The Committee recommends that CEPA be amended to expressly allow performance agreements between either the Minister of Health or the Minister of Environment and Climate Change and another party, to fulfill the risk management obligation, subject to specific criteria, third party oversight and public notice.

Recommendation 85

The Committee recommends that CEPA be amended to expand the government’s authority to incorporate by reference, subject to public notice and consultation, the following types of materials:

  • formal instruments made under CEPA, such as guidelines and codes of practice;
  • internally generated government technical documents that specify: 1) how to quantify prescribed data to be reported, including factors to be used for quantification; and 2) how to conduct prescribed tests, measurements, sampling, monitoring, and analyses; and
  • documents produced jointly by the Minister of Environment and Climate Change and/or the Minister of Health, with another minister or body in the federal public administration.

Recommendation 86

The Committee recommends that the government increase funding to ensure effective monitoring and enforcement of CEPA.

Recommendation 87

The Committee recommends that discrepancies between the English and French versions of CEPA be reconciled.