If I could, I'd like to convene the committee.
An hon. member: Where are all our members?
The Chair: I think everybody is working their way over, and we'll see what we can do.
We'll go with whom we have today, and I think some may be joining us later.
I just wanted to confirm that we're stopping our assessment of protected areas, and later today we are going to be looking at a potential trip so that we can further enhance our knowledge of the different models that are out there and the challenges that are facing us in protected spaces. But today, we're back to the subject of CEPA. We've been away from it for a little while, so we'll have to get our heads back around the subject matter. Hopefully, everybody read the briefs.
We have some excellent witnesses with us today. I'd like to welcome Shannon Coombs, from the Canadian Consumer Specialty Products Association. We have Darren Praznik and Beta Montemayor, from the Canadian Cosmetic, Toiletry and Fragrance Association. Thank you for joining us today. And via video conference, we have Joseph Castrilli and Fe de Leon, from the Canadian Environmental Law Association.
We welcome everyone today.
We're going to have the three witness statements of 10 minutes each. We will then move to two rounds of questioning. We have about 50 minutes of questioning. Then we're going to move into committee business because we need a little work done for the trip we're trying to organize.
Let's get started with our witnesses by video conference, because we often have a bit of a challenge with that video conferencing, so we'd like to have your witness statements first. Please, would you proceed then, Joseph or Fe de Leon, either one. Thank you.
Thank you, Madam Chair, for inviting us to appear before the committee this morning on the subject of the Canadian Environmental Protection Act.
We provided the committee with three documents, and we'll be happy to answer any questions regarding any of them during the course of the proceedings this morning.
Let me begin with some overarching principles.
Given the dramatic increases in the release of toxic substances into the environment that we set out in our material, members of the standing committee must decide whether CEPA is meeting the interests of the Canadian public in protecting human health and the environment from toxic substances.
If you conclude that the act bears significant responsibility for failing to stem the ever-increasing levels of releases of toxic substances, including cancer-causing and related agents, then CELA recommends that at least the following principles should be considered by the standing committee.
First, impose mandatory obligations on the government and reduce government discretion in the three key areas of the statute that address toxic substances, parts 3 ,4, and 5 of the act respecting information gathering, pollution prevention, and control of substances. Second, accentuate the role of the public at every stage of the process, from access to information, to notice and comment, to reviews and appeals, and to enforcement. Third, establish that the burden of proof rests with industry to establish the safety of existing and new chemicals. Fourth, establish as a fundamental principle that government must require examination of alternatives and substitution of safer substances as an integral part of that decision-making process, where appropriate.
There are a number of components of the statute that I want to speak to this morning. I'm going to begin with information gathering.
The national pollutant release inventory has been instrumental in providing the government and the Canadian public with basic information about releases of substances that may pose problems to the environment and human health. However, there have been key problems with the program, some of which were mentioned before the committee in March. I'm briefly going to provide a short list this morning.
First, the NPRI exempts certain activities from reporting requirements.
Second, the NPRI regime predominantly requires the reporting of releases and not the uses of substances. This particular limitation caused the Ontario legislature to enact its own law, the Toxics Reduction Act in 2009, specifically addressing reporting on and reducing the use and creation of toxic substances.
Why did Ontario do that? In my respectful submission, it's because Ontario is one of the highest emitters of toxic substances in North America and the number one discharger in Canada, as found by the government itself in 2008.
Third, the NPRI threshold reporting levels are still too high. As you know, there are 10,000 tonnes per year for any particular substance, depending on the substance. That particular limitation caused the City of Toronto to promulgate its own bylaw in 2010 requiring businesses to report annually to the city medical officer of health on the release and related activities of approximately 25 priority substances above thresholds of 100 kilograms per year—not 10,000 tonnes per year.
Let me speak briefly about pollution prevention.
The minister's authority under the act to require persons on notice to prepare and implement a pollution prevention plan has been used too infrequently and in relation to far too narrow a number of industrial sectors or companies to constitute a systematic response to the problem of increasing releases of toxic substances. This also contributed to Ontario's decision to enact its own toxics reduction law in 2009.
I should also note that the pollution prevention approach in CEPA has generally focused on pollution control or abatement of releases rather than true pollution prevention, which is defined as material or feedstock substitution of safer chemicals, product redesign or reformulation, and changes to manufacturing processes.
I'm going to speak briefly about assessment and control. With respect to this issue, the scientific assessment process for determining that a substance is toxic has been viewed by some as the true Achilles heel of CEPA, as it has led to just 132 substances, or groups of substances, being listed in schedule 1 over the last quarter century.
I'm going to focus on three areas of concern with respect to this issue: existing substances, new substances, and virtual elimination authority.
With respect to existing substances, the categorization and, later, the CMP process for examining existing substances, although important in providing improvements over what we had previously, have developed their own problems at the assessment and regulatory control stages.
These include the following: first, health effects assessments during categorization did not explicitly require consideration of endocrine toxicity or neurotoxicity; second, categorization largely relied on existing data; third, the CEPA process applied very stringent criteria for determining whether substances were persistent, bioaccumulative, or toxic, and if CEPA had applied criteria from other jurisdictions, more chemicals would have been considered for assessment under CEPA; and, fourth, the risk management options for chemicals deemed toxic under the CMP process and placed in schedule 1 generally have not focused on phasing out or eliminating such substances or using safer alternatives.
Briefly, with respect to new substances, I'll make just two points. First, data required under the act and regulations are not sufficient to the task of evaluating new substances, and we set this out in detail in our PowerPoint presentation. Second, there is a lack of adequate authority under the act with respect to the role of the public in consideration of new substances.
Finally, with respect to virtual elimination, there's only one substance on the virtual elimination list. That's one substance in the last 16 or so years. The act's definition of “virtual elimination” focuses on minimizing release rather than eliminating the production and use of toxic substances. As a result, it has simply become another pollution control measure, rather than an instrument of pollution prevention, which was its original purpose.
In summary, there is a need for reforms to the information-gathering, pollution prevention, and risk assessment and risk management processes under CEPA. We list some of them in our conclusions and recommendations, and also in our PowerPoint presentation. We would submit that revisions to key principles and provisions of the act are warranted if the objective of reducing and eliminating toxic substances in Canada is to be achieved.
As this committee knows, these and many reforms were recommended many years ago by this particular committee, your Senate counterpart, and also by members of the public, but no action in terms of amending the statute has occurred to date. Doing so at this time would serve as a true law reform model domestically and also beyond Canada's borders.
I'd be happy to answer any questions at the appropriate time. Thank you.
We represent soaps and detergents, domestic pest control products, aerosols, hard surface disinfectants, deodorizers, and automotive chemicals—as I call it, everything under the kitchen sink or in your garage. We are the downstream users of chemicals, as our products are generally based on the chemistry developed by the upstream companies who were represented here at your last meeting on CEPA.
Why is CEPA and this review important to CCSPA and our members? CCSPA member companies provide products that improve the lives of Canadians, and CEPA governs our ingredients, both existing and new substances. Our ingredients, often the end use of the product—ant traps and disinfectants, for example—and the labelling are all regulated under the appropriate legislation and regulations. This is for both the consumer and the workplace. CEPA really is the umbrella legislation for the substances in the products. Today, I would like to outline how the act works for our industry, the success of substance management under the world-leading CEPA program in Canada, and our recommendations for improved communications to Canadians.
To put this act into context we need to know what it does and some of the history that has led us here. What is CEPA? It is an important piece of legislation “respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.”
The act came into force in 1999 after an exhaustive review by your predecessors in this very forum. At that time, the committee reviewed over 550 amendments that were outside the scope of the bill, of which 150 were adopted and included in the final bill after 93 hours of review. The act is over 400 pages and deals with a wide range of environmental and health issues: air, water, land, and chemicals and their management. It has a wide range of research authorities, data collection mechanisms, and oversight by the minister of both Environment and Health in the areas of substances.
It is a sophisticated piece of legislation that has led us to some significant outcomes for Canadians, one of which is the chemicals management plan, referred to as CMP, which is a science-based risk assessment program for chemicals and their management. CCSPA has supported this world-leading program since the formal announcement in 2006, and we have strived as an industry to ensure our pillars of sound science, due process, and effective communications have been embraced by the program.
This committee also reviewed the legislation in 2006, and CCSPA was an active participant at that time.
What sets the CMP apart from other programs around the world? The CMP stems from a 1999 amendment to categorize and screen the original 23,000 substances that were placed on the domestic substances list. What is the DSL? It's a snapshot in time of substances that were used in commerce between 1984 and 1986 that, under the 1999 amendment, were then categorized and screened against very specific environmental criteria: persistence, bioaccumulation, and inherent toxicity, plus for humans, the greatest potential for exposure.
What is on the DSL? The diversity of the substances on the DSL include chemicals, water, vitamins, sugar, etc. It is quite comprehensive. Therefore, Canada is systematically assessing all of those existing chemicals on the DSL and is ahead of the U.S. and Europe. The initial program was called the categorization and screening of the DSL. That seven-year process netted a result of approximately 19,000 substances being deemed as needing no further review and approximately 4,300 identified for review.
CMP was launched in 2006 with an ambitious review plan for those 4,300 substances, and timelines have been met for all intents and purposes. CMP 1 was announced with approximately 200 substances identified as being potentially CEPA toxic, and industry was challenged to bring data to the table to defend our uses. With a rigorous risk assessment process that allows industry and all stakeholders to participate in the science process, this program got under way. A direct result of that program is that Bisphenol A was removed from baby bottles.
When CMP 2 was launched in 2011, an innovative science-based approach to look at substances of similar structure was set for this phase, with the substances being identified and grouped. The results of that program, a cumulative assessment on phthalates, will be released this summer. Again, Canada is a world leader. To date, 22% of the CMP 1 substances have been recommended for schedule one and management. Now, a decade later, we are in the final phase of the program, CMP 3, where 1,554 substances will be reviewed and assessed in the next 4 years.
Canadians should be proud of this program. Our country is a global leader in how substances are assessed and managed, regardless of where that chemical is used.
Canada uses a risk-based approach. We look at the hazard and do an assessment. We look at the exposure and do an assessment. The final product is a risk assessment. A Canadian risk assessment means rigorously evaluating the potential hazards as well as use, conditions, and exposures, and using this information to ensure there's a sufficient margin of safety for Canadians. Doing this systematically for all substances in Canadian commerce is what sets us apart in the world.
Beginning in 1994, Canada has also had a mandate for rigorous pre-market review of new chemicals and, since 2001, has included substances used in Food and Drugs Act products. This sets us apart from the U.S., which does not do this, and from Europe, where new polymers are not subject to substance programs.
For our member companies, making safe and beneficial consumer products for Canadians is paramount. In order to deliver on this, we meet the high bar that CEPA set for all ingredients, existing and new. During this time, CCSPA members have been very responsive to meeting the needs of consumers and the environment, whether it was our voluntary initiative to reduce phosphorus in automatic dishwasher detergent; developing a guideline on volatile organic compound limits in consumer products; our ingredient disclosure program that our members adhere to; or working with all stakeholders on legislation to protect Canadians on product safety, which has led to new voluntary guidelines for packaging and labelling of single-use laundry detergent.
CEPA leads the way and makes us all do our jobs more effectively and with better outcomes.
The CMP is unique. It's built on the premise that human health and safety go hand in hand with a clean environment and sustainable economy. CMP delivers against CEPA objectives of a clean environment and sustainable economy, with the pillars of the program rooted in science-based decisions, due process for all stakeholders, and communicating to Canadians on the outcomes.
Canada should more actively profile our scientific excellence at all international forums so that others can learn and utilize the information and improve on their own science and risk assessments. Earlier this week, at the G-7 environment ministers' meeting in Japan, and her colleagues made reference to strengthening the sound management of chemicals, and we support Canada in this regard.
Where does the program fall short? CMP outcomes, and the science behind the decisions are not well communicated to Canadians. Despite the opportunities to actively participate in the process, whether it be in your data collection surveys, the consultation processes via the Canada Gazette, participating in the CMP stakeholder advisory committee, or for scientists to engage in a science advisory committee, few people truly know the results. There is also an excellent CMP website that Canadians can access, but it's not well known.
Canadians need to know when and how these decisions are made and what the results are in a more easy-to-understand format. They also need to know how to engage in the process in a meaningful way. We would recommend that the government provide a mechanism on the website to advise Canadians on how they can participate in the consultation processes and engage. We would also ask the government to find ways to utilize the current communication tools to enhance information on results in an easy-to-understand format. Canada can be a leader in our science communication, and we are willing to be a partner in it to help ensure that happens.
Thank you for your time today. I'm happy to answer any questions.
Good morning to all the members of the committee.
We want to thank you very much for the opportunity to speak to you today. We have prepared a presentation in both official languages that I think was distributed, but I'm not going to read it. I simply want to touch on some of the highlights in my comments with you today.
I'm joined by Beta Montemayor, our director of environmental science and regulation at the CCTFA. As a trade association on behalf of our industry, we have been very much engaged. Beta has led our efforts in working with the CMP process over quite a number of years now and has a great deal of experience in this particular area. He is here today should you have any specific questions.
Our industry is cosmetics and personal care products, which covers everything from colour cosmetics to fragrances, moisturizers, sunscreens, cleansers, shampoos, anti-perspirants, toothpastes and other oral care. It's products that you use every day. We are downstream product users, as Shannon Coombs' association is. The producers of our raw materials have spoken to this committee earlier, but it's important to note that we are engaged in this process because our personal care and cosmetic products are, in essence, regulated both as products through the Food and Drugs Act and as ingredients that go into them through CEPA.
Many of the decisions that have been made over the last number of years on specific substances have resulted in changes, for example, to the cosmetic ingredient hot list that guides what substances can be put into cosmetics. The results of the work of CEPA affect us very directly and we've been very engaged in that process.
I want to pick up on something that my colleague mentioned about this program and its importance in relationship to the wider world. It's very easy to come to a program and look at it and point out things that may be shortcomings. Every program has shortcomings. In another life, I served in a provincial legislature and was responsible for regulatory departments and sat on your side of the table, so I came to appreciate in those days that what's very important for any particular program is context.
I think what's important to look at in our chemicals management program is context. This program is one of the leaders in the world. If you look at what was in place prior to the chemicals management plan, over a 10-year period I believe some 75 substances were reviewed. It was slow and cumbersome and not very good at serving the needs of Canadians, their health, or their environment.
Since we've had the chemicals management plan, as has been pointed out, some 21,000 of the 23,000 existing substances have now been assessed; 4,300 priorities were identified; and while all that was taking place, any new substance entering our marketplace was also assessed.
When you compare that context to what existed before, you really have to say that this has been an incredible program despite whatever shortcomings with it may be identified. As well, when you compare it to other parts of the world, the European Union with their REACH has a somewhat similar program and some differences and issues there, but Canada and the European Union are really two of the major world entities that have this kind of program. The United States doesn't have it, and are facing quite a dilemma and issues there with regulation happening at the state level and frustration at the national level and, some would argue, a real mess.
When you compare what we've been doing in Canada to the rest of the world, this program is truly a world leader in this area. It's not perfect, but certainly, when compared and put into context, it's a great success.
From our perspective—and I think we've highlighted this in our documents—what has really made this an envy of many jurisdictions is that it is risk-based. It does look at the intrinsic properties of substances; it does look at inherent hazards, and also at exposure, which is a critical part of the risk assessment process; and it determines whether or not there is, in fact, a real risk and what is the best way to manage that risk.
Making regulatory decisions based solely on one element in isolation of the other elements that need to be considered would be overly simplistic and inappropriate, and would potentially lead to misleading conclusions that could prohibit innovation and access to chemistries that are safe in reality. So we have a lot of those principles generally right in our system and they have, as I said, really been the envy of the world compared with other jurisdictions.
We also think the use of science and the weight of evidence is really important . What has been just so strong about the Canadian chemicals management plan is that not only does it look at the potential risks, the potential safety for the environment and human health, but also digs down and is able to assess if this is real It looks a real world data not just theoretical risk, and it's able to make conclusions and suggest or put in place risk management that is appropriate to real world risk.
When we were looking at what others have said about this, we thought it would be well worth us—and would highly suggest that the committee do so too—to look at the board of review process for Siloxane D5, which happened some years ago. It was carried out by three very prominent scientists who headed that board of review. They looked at evidence, had two weeks of hearings here in Ottawa where every interested stakeholder could make presentations and present the science, and they came out with a finding. However, what was very interesting is that they came out with some observations the about process, which were referenced recently in an article in the Huffington Post. If I may just conclude this with its comments:
Like the scientific process itself, this approach to regulation encourages good faith skepticism, honest debate, and confidence in the regulations themselves. Most people, whether in Canada, Europe or the United States, understand that government investigations may be based on suspicions, but regulations must be based on science.
Despite whatever issues there may be and that no system is perfect, Canada did generally get this right with this program. It has a legislative mandate to complete its review by 2020. We would strongly suggest that it be allowed to do that, and then it can be fully assessed with improvements made going forward to where we want to be after 2020.
Those would be our comments.
I hope, Madam Chair, I have kept to the tradition of being within the 10 minutes.
I think risk assessment is a complicated process. It is not always easy to explain, but I will try to do that very briefly.
I think we mentioned three concepts that are always taken into account.
First, we look at the properties of a material. These are things like the shape. What is the form? What is the solubility? How is the substance going to behave on the basis of its chemical characteristics? Understanding that would give you an idea of how it is going to behave in the environment and in the human body.
We then look at inherent hazards. What is the potential that this substance may cause an adverse effect?
Then we take a look at exposure. When you look at exposure, you look at what the route of exposure is. Are you being exposed by ingestion? Are you being exposed by a topical application? Are you being exposed in the air? You look at what conditions those exposures happen under. You look at cumulative exposure.
In our products, we know that consumers use multiple products every day, so it is important to look not just at the substance in one product, but the substances in a multitude of products so that you understand the cumulative impact that has.
You look at sensitive populations. Are there groups that are going to be specifically exposed that you are going to want to make sure you adequately protect for?
Risk assessment, by its very nature, is very conservative. It uses worst-case assumptions. It allows for uncertainty to be addressed in terms of adding safety factors or uncertainty factors so that you can be sure that the outcome of a risk assessment is going to be conservative and adequately protective of even the most sensitive population.
Thank you all for coming here today.
It's great to see you, Joe. It's been a little while. I hope all is well.
As Mr. Castrilli knows, I've been involved for the last couple of decades in fighting a mega-landfill from being built in our community. One of the reasons for that is the old landfill that is there has been contaminating residential wells and wreaking havoc on the environment.
We've had an incredibly difficult time to hold the company to account for that contamination in the environment, and it's because of the weak nature around drinking water standards. One chemical, in particular, that is in cosmetics, in solvents, and in many products that have been used by consumers is called 1,4-dioxane. There's no drinking water standard for it. We know it's a toxic carcinogen. We know no amount of it should be in anyone's water, but yet it's one of those chemicals that, once again, has not had the proper amount of regulatory oversight in order to virtually eliminate it from the environment so that the biocumulative effects of that chemical that ends up in landfills don't have an adverse impact on the environment and on human health.
Joe, maybe you can speak to this.
I don't know if it's a lack of resources for Health Canada to be able to do it, or if it's a lack of oversight that a chemical like this shouldn't be introduced to the environment in the first place, or a lack of, once again, substitution planning that enables this to happen in the first place.
I want to start by saying we've been very engaged in this for over a year. In fact it was Mr. Brian Masse, the member of Parliament for Windsor West, who first reached out to us to work with us. Our industry recognized that there was a problem with these plastic microbeads. They're used as an exfoliant in products to remove dead or dry skin. It was recognized that they were not being caught in the waste water system, and so our member companies, the vast majority of which are in personal care products, committed fairly quickly to removing them from those products.
When we met with Mr. Masse, a couple of things were important to us as an industry. We wanted to have a regulation for two reasons. One was that we didn't want those who might not be part of our association to still be able to import them, or if someone was importing a low-cost product from outside of the country and didn't know, there had to be a way to stop that.
Secondly, there are those who counterfeit products. There are a lot of counterfeit products on the market, and we wanted to ensure that there was a regulatory authority in place that would help to get those counterfeit products off the market. We wanted regulation. We also wanted it to be federal and not provincial, because our products are sold everywhere in Canada. We didn't want to have different regulations in Ontario and Quebec and Manitoba, etc. That would make it impossible to implement. Provinces also don't have the enforcement vehicles to go and check products, whereas the federal government does.
The third concern we had was that whatever that regulation was, it had to be consistent internationally. This issue was first addressed legislatively in the United States. A model called the Illinois model was developed. It included a definition, with periods of time to remove products in different classifications of products. Some were in drugs. Some were in cosmetics. We wanted a common definition and a common time frame so we could implement it universally. Nothing makes it more difficult to implement than when you have different, maybe contradictory, definitions. Again, we're making products not just for Canada or Ontario but for international markets.
That's what we asked for. We made our case to Mr. Masse. He brought a resolution to the House of Commons. We worked with the office of the federal Minister of the Environment at the time. We had outreached to the then Liberal caucus. I think because we were very supportive of it, there was a very rare occurrence in the last Parliament: there was a unanimous decision to pass that resolution. That led to the Minister of the Environment beginning the process, under CEPA, to put in place a regulation. That process is well advanced. I think they've worked out all of the detail and it's working through the process. The beauty of that is we will get a Canadian regulation consistent internationally that will be enforceable.
In terms of our member companies, they are all in the process of either being out of them or in the process of getting out of them. I think this was great co-operation by everyone.
A casual observer of today's proceedings could conclude that we're dealing with two solitudes here. It's not only risk-based versus hazard-based approaches to assessment. It's also the conclusions of the various witnesses here as to whether our current system is working.
I listened to Mr. Castrilli, who listed a host of problems and changes that he would like to see.
Beyond moving to a hazard-based assessment process, he also highlighted the four principles that he would love to see incorporated in the legislation, including greater mandatory obligations on the government, especially with respect to pollution prevention; accentuating the role of the public, which I believe Ms. Coombs also referenced; establishing in the act unmistakably clear terms that the burden of proof rests with industry to establish the safety of existing or new chemicals; and then finally, a fundamental principle that because the law already requires application of the precautionary principle, in erring on the side of caution in its decision-making on the availability of chemicals, government must require an examination of alternatives as well as require substitution of safer substances.
Beyond those principles, Mr. Castrilli of course listed many different things that he feels are weaknesses in the current process and things that he wants to change.
Your opportunity here, as consumer product associations, is that we're doing this study in advance of what may be some legislation that comes down the pike. We're not doing it after the fact, where we're reviewing drafted legislation, so I have a question for both consumer products organizations. You've heard Mr. Castrilli's interventions here. Are there any items on his list of changes or improvements that your industries could actually support? That would be helpful for us as this study moves forward and we have to prepare a report on this.
Let's start with Mr. Praznik.
I hear Darren's comments around science, but science isn't just the science of the day. It is also the historical evidence that suggests that biocumulative impacts are occurring in the environment.
If CEPA is working, then the numbers don't indicate that it is. When you look at some of the data points, you will see, for example, that California has the number one GDP out there, but has less than half of Ontario's onsite air releases of carcinogens. Massachusetts has a GDP similar to Ontario's, but has one-twentieth of those same releases.
There are similar numbers as well from the standpoint of pollution levels overall: almost 209 million kilograms are being released in North America, and Canada contributes 66 million of that. Releases into the air are 75 million kilograms in North America, with 31 million kilograms coming from Canadian facilities. When you look at the size of our economy and population, we are very overrepresented in the amount of pollution we're releasing into our environment and its impact on human health.
We're using risk-based assessments, yet microbeads got into the market and wreaked havoc. There are far more other new substances are coming down the pipe through the nano materials. We've been going down this risk assessment path, yet it doesn't stop these chemicals from being introduced. Even when the science comes along to say they should be virtually eliminated, they're not being eliminated.
Mr. Castrilli, they gave the industry side an opportunity to say what they would accept or to answer this whole question of the hazard- versus risk-based approaches, and I would like to give you that opportunity once again to talk about the hazard approach versus the risk-based approach to assessment.