Thank you very much for the opportunity to appear before your committee. I'm very excited about this.
As you said, Chair Schulte, I'm a professor at the University of Toronto. For the past 30 years my research has involved toxic chemicals. I try to figure out their identity. I look at where they're coming from and where they go, and where they end up and how we're exposed.
In 2008 I was privileged to be the co-chair of Ontario Toxics Reduction Scientific Expert Panel that had a word in bringing in the Toxics Reduction Act in Ontario. Since 2013 I've been a member of the Chemicals Management Plan Science Committee. I've also acted as a peer reviewer for several assessments conducted under CEPA, part 5.
My second point is that I would really like to commend the scientists and staff at Environment and Climate Change Canada and Health Canada for working hard and diligently and using the best science to bring forward sound judgments for protecting Canada's environment.
Next, I'd like to raise four points that reiterate or emphasize those raised by my colleagues, Professor Dayna Scott from York University, and Joe Castrilli and Fe de Leon from the Canadian Environmental Law Association.
I'll just briefly go over those four points. First, I recommend adopting a more precautionary approach into CEPA as a guidepost, using the European legislation, REACH, as a model. Why? It's because science is limited. We have known uncertainties and we have information that we do not know. The scientific evidence is constantly changing, and methods are constantly changing. Adopting a more precautionary approach recognizes the scientific uncertainty, together with changes in the Canadian environment.
Second, as was well articulated by Dayna Scott, we should incorporate principles of environmental justice into CEPA, specifically the protection of vulnerable populations, both in the ecosystem and human populations.
Third, we should increase the onus on industry to provide data for our chemical assessments. This would improve the work flow and the ability of chemical assessors to adjudicate their work. Again, Professor Scott articulated this well.
I would like to make a further point, and that's with regard to the provisions for confidential business information. I do recognize the importance of the provisions for CBI in part 2 of CEPA, but I also believe that a better balance between CBI and the right to know needs to be considered. CBI protects the confidentiality of business interests, the importance of which I recognize, but potentially, it does so at risk to the Canadian public. As seen in the most recent Auditor General's report, CBI and the lack of transparency in product labelling allows products and materials containing CEPA-toxic chemicals to enter the Canadian market.
Fourth, the national pollutant release inventory badly needs to be updated in terms of substances and reporting thresholds.
The next four points I will make have not necessarily been raised by others, but are new points of mine. First, I strongly support the principle of using the best available science in CEPA, but I recommend adopting this as a principle rather than being overly prescriptive in the legislation. I recommend being cautious about overly prescribing methods within CEPA, because it ties legislative compliance provisions now believed to be the best science. In other words, the science that would be prescribed becomes frozen in time and becomes a new anachronism.
The next point is more complicated to describe, so I'm going to take just a few more minutes.
I submit that we need to consider chemicals over the life cycle of the chemical that's used in a product. When CEPA was first envisaged, it was thought that if we stopped production we were taking care of things. Indeed, if you stop production levels decrease, but we do need to take a broader perspective.
I'm going to use one case study, that of the flame retardants penta- and octa-brominated diphenyl ethers, or PBDEs. They were added to schedule I in 2008. PBDEs are used in a whole bunch of stuff. For example, I wouldn't be surprised if the the chair I'm sitting on and the ones you are sitting on contain one of those formulations to retard the flammability. Furthermore, the casings and components of all the electronics in the room you and I are in may very well contain PBDEs that are listed on schedule I.
Many of those products move to the end of life. They go into the waste stream. They're not designated as a hazardous chemical. I totally get that. But they do enter the waste stream, and according to the waste hierarchy, we do not want to dump those but reuse them. So we dismantle our electronics, take the plastic, say, from the casing of your computer and turn it into something new. Okay, that something new. Can you see my kitchen spoon? This is my black plastic kitchen spoon, and I know that many of you probably have a kitchen spoon like this one, and it contains 66 parts per million PBDEs. Now, kitchen spoons are not known to have flammability standards, but, rather, this kitchen spoon probably had an earlier life as a computer or a TV casing. That's why we need to consider a life-cycle approach.
My next point is that I'm always puzzled about the different viewpoints of stakeholders. For example, my colleagues in industry often talk about the need to use sound science and evidence-based decision making, but I've never seen unsound science or decisions made under CEPA that are not evidence-based. I actually think this conversation about sound science and evidence-based decision making is really about the value judgments made on the interpretation of the science. You get the scientific data and then you absolutely need to make a value judgment. Those judgments are normative. But those value judgments need to be taken in the context of the principles of CEPA, and that's why I sort of circle back to my earlier point about better articulating the precautionary principle and environmental justice under CEPA. Those act as guide points through which the data are interpreted and the normative judgments are made.
The final point I'd like to make before wrapping up is about taking a long view of CEPA. I know you do this every five years and this is now the big opportunity, not only to fix the details but also to take the long view. I'm so heartened that your committee looks at the environment and sustainable development. I submit that what we need to do is to more tightly couple environmental protection through the control of toxic releases, through the provisions of CEPA, with sustainable development.
The chemical pollution can be viewed as an outcome of inefficient resource use along the life cycle of that chemical. Chemical releases during manufacturing, for example, represent an economic loss to the manufacturer and a cost to society. Some colleagues say that we should do alternatives assessment so we get the bad actors out. But the problem with alternatives assessment is that we can do a drop-in replacement and we replace one bad actor with another chemical that we have yet to figure out is a bad actor.
The Chair: You have one minute.
Prof. Miriam Diamond: Thanks.
Rather, I think the question that we need to ask is, do we need the function provided by that chemical, and do we in fact need that product?
With the government having a fresh mandate, I maintain that it's time, and I really hope that you foster a cross-country conversation on a vision for Canada's future. Can we find a way forward that combines environmental protection, efficient resource use, and a standard of living for all Canadians? We need to have that conversation, and I argue that we have no choice but to have that conversation, to come together to build a new, prosperous, and safe environment for Canada.
I'm really honoured to be here to talk to you today. I've come a number of different times to this type of forum to talk.
I bring greetings from the Mohawk Council of Akwesasne and from the Mohawk people of Akwesasne. We want you to know that we're still on the St. Lawrence River and we're still trying to protect that part of the river where we live.
We've had many different approaches over the periods of time. Our first approach to, at that time, Upper and Lower Canada, was in 1834, when our people, the traditional chiefs, went to the British government and complained about building the Beauharnois control structures and how they would impact the environment in Akwesasne. I think they were promised something like £120,000 for the damages that would be done to the St. Lawrence. They never saw that money, but that was one of the agreements.
We have a long history together on this. The department of the environment at the Mohawk Council of Akwesasne started in 1976, just five years after Environment Canada and six years after the EPA in the United States. Since Akwesasne sits in Quebec, Ontario, and New York State, we work with both federal governments, provinces, and state governments.
The department grew out of problems with fluoride, mercury, Mirex, PCBs, dioxins, dibenzofurans, and a whole raft of things that were coming down the river. The major ones found in our own area were being produced by aluminum companies, by Domtar, and the chemical companies that surround it in Cornwall. We have a good knowledge of where those compounds come from, but as we looked at the problems with these in Akwesasne, more and more we saw that the health impacts on our own people were as important to us as could be.
In 1980 we had a health study carried out and research on the contaminants in Akwesasne: fluoride, mercury, Mirex, and PCBs. Of course we were told at that time by the epidemiologist who worked with us that there would be no way possible to simulate what the mixtures were and what they were actually doing to us since there would be so many different things happening. But we continued, and we still worked on the fish.
We have helped MOECC, now our Ministry of the Environment and Climate Change, and the Ministry of Natural Resources and Forestry to do some of the best fish monitoring in the St. Lawrence River in our area for contaminants, mercury, and those others. We found that the models that were used—and I don't know who to addresses this—to establish and to look at the impacts of these compounds on human beings were using standardized methods. Scientists like standard temperature and pressure because then they can measure one compound and know how it acts. The problem is that it doesn't act that way in the environment.
What happened is that we were able to find that there were many more compounds in the fish. A lot of them, they said, were at safe levels; a lot of them weren't. We actually knew how much fish we ate—I don't look like this from eating a 250-gram portion of fish; I eat probably closer to a kilo of fish, and I tend to like the bigger fish. What happens is that bioaccumulation in those fish make us prime suspects for accumulating those compounds.
After the epidemiological work was done, we were told that, yes, they could find a lot of symptomology but no direct medical dysfunction in the people at Akwesasne. That's not a very nice sort of thing for $7-million health study to come out with, because our people are still suffering from a lot of different diseases like diabetes, cancers, and everything else, which seem to accumulate among the traditional people who are using fish from the river.
No one has been able to tell us yet which way this goes.
We are also working more broadly than just for Akwesasne in that we are also a member of the International Joint Commission. I sit on the scientific advisory board on the science priority committee. We are continuously looking to see what's happening in the environment and how we can work with them.
We've worked with Environment Canada. I sat on the science and technology advisory committee for a number of years in order to advise about impacts within CEPA and things that were happening. The people in our department have good knowledge, working on the environment with the Ministry of the Environment and also Environment Canada.
Today, we have our own environmental assessment process, which we use for all projects within our community, and we coordinate those with projects outside the community, again looking at compounds. We have our own wildlife conservation law, which we apply to everyone, not just Mohawk people but anyone who is fishing or hunting within our territory, so that we can advise them of the compounds we have been able to find in the fish. We also have our own court system, so if people want to act up a little, we can take our own people to court, but we have also had a number of occasions when some other people have had to be looked at as well.
In 1999 when the act was proclaimed, we were really quite pleased to see it. At that time, there was forethought; it was amazing that native people were actually mentioned in the act. The preamble to the act mentioned how we were going to work together and co-operate and merge our knowledge systems to see how we could come up with some solutions. We were very happy about it. We saw it as a victory that the minister had a duty to consult with native people, but in that 16-year period from then to now, the concept of reasonable accommodation seems to have been forgotten about.
It is the duty to consult and to reasonably accommodate aboriginal people in Canada that is most important to the act. I say that because the act itself, while looking at the environment, needs regulatory people and people on the land who know what's going on out there. My people at Akwesasne know every pipe and every ounce of stuff that goes into that river, and they are continuously reporting to us and to the Department of the Environment on what we think are violations. We also continuously report to others who can maybe do something about it.
It is about time that we recognize that, and that we begin to see how we can reasonably accommodate native people to actually help with the monitoring, help with the accommodation or infractions, which is encouraged, and maybe even help with some of the things you find complex within the environment.
There are a number of stories I could tell you about the accommodation we've had with scientists who have come to Akwesasne in order to do sampling. I'll just say that the best fish survey ever done on the St. Lawrence was done because Mohawk fishermen took part in it. The scientists like to say, “We'll get our fish out of this spot” and the fisherman looks at him and says, “No, you'll only get pike out of that one. If you want to get all of your fish, here's the area you're going to have to have as your site”. We were able to do that. The integration of traditional knowledge is important.
The other thing I was talking about is the concept of mixtures. Every scientist I talk to says it is so complex that they don't know what to do. If we can send people to the moon and we can cure a lot of diseases, I think it's about time for the Environmental Protection Act to pick up mixtures and look at them seriously. There are many good techniques out there nowadays to look at these mixtures.
In the simple things that we've been able to do, we've been able to find something like a hundred different compounds in the fish we eat, and we're still being told they're okay to consume. Each of them might be just a little below the safe level, but what happens when you put them together, we ask? There's a blank look on their faces.
The last thing I will say is that under the Environmental Protection Act, those responses aren't the only problem that you have with it. Those responses to a compound are just part of the story. You have to move up the hierarchies and scales.
The reason that Canada and the United States have spent $2 billion on policing us at Akwesasne since 1990 is the environment. The environment's impact on our people meant that we could no longer take part in our traditional economies that we had, and suddenly we saw the non-traditional economies come in, which erupted in Oka.
Since that time, we've been dealing with it at Akwesasne. We hope that our partners are there with us.
It's a pleasure to be here, Madam Chair.
Good morning to the members of the committee and guests. My name is Amardeep Khosla, and I am the executive director of the Industry Coordinating Group for CEPA, or ICG for short. I thank you for this opportunity to address the committee on aspects of CEPA as you and the government consider the path forward for this important and, we think, remarkably successful legislation.
By way of introduction, as we've not spoken to you before, the ICG has existed for about 30 years. It comprises about 25 industry sectors—the numbers vary from year to year—all of whom are affected by the chemicals-related provisions of CEPA and its regulations, policies, and activities. I will, as a result, focus in my later remarks mainly on the chemicals management plan, or CMP, and the relevant provisions of CEPA—so not all of CEPA.
The ICG is an industry forum for regulatory and technical discussion on matters related to CEPA's regulatory regime regarding substances management. We have several standing meetings a year, additional activities for our focused subcommittees, and biannual meetings with government officials to discuss implementation of the program.
The CMP is a very broad topic, as you know, but I will give you two examples of our work just to give a sense of what we do. We work with officials to find ways to reduce the considerable time and resources companies need to expend in order to track and report on potentially notifiable substances, which are imported, manufactured, or used in Canada, or products containing those substances. As you can appreciate, the effort magnifies as you start to include the products. These are sometimes subject to multiple CEPA requirements, which require being brought together. We work with Canadian and U.S. officials via the binational RCC, the regulatory cooperation council, work plan to identify opportunities for developing common approaches going forward for certain regulatory reporting requirements, called SNAcs and SNURs, relating to the new uses of chemical substances.
The ICG also participates in the national stakeholder advisory council for the CMP. We hold a recurring CEPA update conference, which reaches out to a much wider cross-section of industry. We have 25 associations, and more people come to the conference. Through that we help to build awareness and compliance.
The ICG complements, but does not replace, the functions of our member associations. We do not advocate on behalf of a particular chemical or a group of chemicals, but we do identify and communicate widely held views and concerns with respect to science policy directions or CMP design and implementation. We provide the government with a necessary understanding of the practical impacts of the CMP and CEPA on industry and help make its implementation more efficient and compatible with our main trading commitments, while still achieving environmental goals.
With that as an introduction, let me turn to our main views on CEPA in review and, while doing so, seek to add to what you've already heard from several ICG members, including the Chemistry Industry Association, the Consumer Specialty Products Association, the Mining Association of Canada, and the Canadian Cosmetic, Toiletry and Fragrance Association. I will focus these remarks on key factors that we think have been cornerstones of the CMP's remarkable success and that we believe should be maintained in order for that success to continue. All of these factors work together and are not easily separated from each other without risking, we think, the success of the program.
First and foremost, CMP and CEPA are risk-based. This means decisions are made taking both hazards and likely exposures into account, thereby enabling a more targeted and considered appraisal of what is required to protect the environment and human health than can be achieved from a purely hazard-based approach. This allows limited resources in both government and industry to be used where they are most needed, and not wasted where they're not needed.
To illustrate by way of a trivial example, a large and sharp knife is always a hazard, but we do not control access to kitchen knives by chefs. How a knife is used and under what circumstances, and the practical interventions that might be needed to assure safe use, are essential considerations in any sensible management plan.
Second, CEPA and the CMP set scientifically credible priorities. The government does first what is judged, following consultation, to be most important, and then moves to the next level. These priorities take into account hazard characteristics, such as persistence, bio-accumulation, inherent toxicity, and exposure.
The CMP determined that about 4,300 of the 23,000 chemicals in commerce warranted assessment. However, it is worth noting, because this has come up in prior discussion at the committee, that of the 19,000 that were set aside as not warranting assessment, any of them can be considered again if relevant new information emerges. Of the 4,300, over 2,700 have now been assessed, and the remainder are on track to be assessed by 2020. This is a remarkable achievement. No other country even comes close.
Third, CEPA and the CMP set ambitious yet achievable timelines and transparently communicate progress. As the CMP progresses towards its goals, it also must appropriately employ targeted communications to ensure that its success is recognized by the public.
To continue to deliver, the CMP must continue to be seen as a productive investment of scarce societal resources. These have been quite substantial. For the government alone, it is $100 million a year over 10 years, and for industry I would imagine the number is greater. We don't track it.
Fourth, CEPA and the CMP are principled, yet also appropriately flexible. I am in complete agreement with Dr. Diamond's comments on this. CEPA defines certain tools processes, and principles that guide their application, including the consideration of precaution and the weight of evidence within a risk-based context, and the setting of fixed timelines within which certain critical activities must occur.
Importantly, CEPA also allows important discretion to tailor CMP program elements to suit the need of the task at hand. Some examples are the consideration of vulnerable populations when doing certain assessments, which has been built into some assessments; the consideration of cumulative assessment, where it can be done, to sufficiently similar substances; the recently published five-element assessment framework that the departments are using, which could free up technical resources for those types of assessments that require the most time and effort; or the tailored approach to the collection of information that the CMP has used when executing surveys under section 71.
All of these areas have evolved with the CMP. They have worked with stakeholders, including the ICG, learned from their past activities, and anticipated future needs. They were enabled by CEPA, yet excessive prescription in the act would almost certainly have prevented such an evolution, for the reasons Dr. Diamond outlined. You can't freeze science, common sense, and learning.
The act is static, until it is reviewed, which you are doing. Science is not.
The CMP also has brought together certain authorities under CEPA to create a framework that will allow decisions on certain substances to potentially be reviewed in Canada based on the consideration of new information. This might include such things as new toxicity studies, changes in exposure or use, or new information provided by assessments or management decisions in other key jurisdictions around the world.
Finally, the public credibility of CMP actions is enhanced by placing the responsibility for risk-assessment, and risk management where necessary with the government, and yet also imposing important responsibilities on industry. Government makes the risk assessment decisions based on science, and it considers information from industry and other sources. I would like to stress that government adopts a more conservative approach in assessments when it has less information from industry. It is very much in industry's interest to provide information; otherwise, the precautionary approach that's built into CEPA is brought into play. Where industry does not provide information, the likelihood of a toxic conclusion is greater. Similarly, after consultation with stakeholders, the government makes the necessary risk-management decisions when a substance is assessed as toxic, but it's industry that must integrate those control measures into its existing protective measures, and that integration is a complicated discussion.
To say that CMP is successful, and to point to the elements in CEPA and the CMP that we consider essential to success, is not to suggest that they're perfect and that they cannot be improved. I've already pointed to several improvements in the CMP that officials have made, and we have been part of the consultations on those, but more are no doubt possible.
The ICG members have taken note of the paper recently submitted to you by the departments as well as suggestions made by others who have appeared before the committee. While the time to consider all of these is quite short, we are committed to considering them further over the summer.
Our next update conference, which will reach a wider group of people, is scheduled for September in Toronto, and it may be able to help us broaden our discussion. While the ICG membership is broad, the conference is broader. As a result, we may have additional comments to provide for your future consideration. We trust you will be open to receiving them.
Thank you for allowing us to appear before you today.
On the precautionary approach, I think it's a question of interpretation, and the interpretation that is most broadly held in the world is one that was developed during the Rio environment meetings in 1992. That is the interpretation that, I think, underlies much of the government's application or precaution. It's been the subject of a very wide department-wide consultation in the 1990s, and we think it's the right approach. So, yes, precaution is built into CEPA. It should be based on a commonly held view of what precaution should be.
On vulnerable populations, as I've said, I think they are already being taken into account. We would certainly be willing to consider the extent to which they should be further built into CEPA. We note that the government's paper recommends the preamble. That's something we will take a look at and can certainly provide you with a written comment on, if you wish.
On the NPRI, I said earlier that the act is static until reviewed. Things should be reviewed. So when it's ready in its cycle to be reviewed, I would certainly hope that we will have an intelligent conversation about how it needs to be changed. If that means some substances need to be added, some need to be dropped, thresholds need to be changed, we should have that conversation. I think CEPA already enables that. I'm not sure it's an amendment to CEPA that's required. It's common sense.
On industry data, ask my colleagues; we provide lots of it. I come back to this point about our being about 2% of the market. With regard to the Europeans' REACH approach, which is very data intensive and very expensive, I would think that every time that is raised in front of this committee, you should be asking the question, “Show me the evidence that it works”.
I have given you some evidence that CEPA works. If you judge it by whether we ban something, which is what virtual elimination essentially means, then I guess you would be more critical of its success. If you judge it by whether we've taken the actions that are needed to reduce environment and human health risks to the levels where they are acceptable, then I think it's a resounding success. Focusing on the extremes doesn't help anybody. I think we should be looking at the broad impact of the act and whether it's doing what it needs to do.
If I may editorialize just a little, I very much like Dr. Diamond's example of the gym. It's a perfect illustration of why a risk-based approach is needed. If you took a hazard-based approach to flame retardants, you might go down one path. If you take a risk-based approach, in your risk management discussion, you are able to consider what to do about the gym, if somebody raises it.
There was a question I wanted to ask earlier, but I'm going to throw it aside right now, because a couple of very interesting points have come up. I would like to thank Ms. Diamond for rattling my mind when she started talking about public places such as arenas.
A number of years ago when I was a mayor, I built a new sports complex in northern British Columbia. It was two hockey rinks surrounded by an indoor speed-skating facility, which was number two in Canada, and above that was a walking track. I remember that the contractor kind of screwed up and didn't quite get the dimensions right for an international speed-skating track, so they decided to change the foam.
They came up with a derivative of one foot of foam that was as good as the three feet of foam that the international committee required. It was for people doing 80 miles an hour around a corner if they lost control. He said that the one foot would now do what the three feet would do.
I remember a consultant I had hired sent him a simple question. He said, “Fine, but bring a dozen sheets, put them on the ground, jump from the third floor, and prove to us that the product is going to work”. They went back to the drawing board. It was a very interesting scenario in which science told us it was going to work until we asked science to prove it, and they backed out very quickly.
Mr. Khosla, you talked about the change that we saw in CEPA and you said that you feel we're working very well with industry and with CEPA. We talked about the vulnerable population out there. I have foam all around this arena, and the top has a big rubber track that people walk on. How will we use those recent inventory updates that tell us the current status of substances and stuff like that in the Canadian commerce and the likely exposure scenarios?
Here is where I'm going. You as industry develop a product for the market. CEPA gives you and works with you for the guidelines. You then sell the product to what I'll call a developer in the best scenario, who then places it in a structure, a building, or a vehicle, or whatever he is going to do. Is there a responsibility and does industry take responsibility—and you're the first line— to ensure that the users down the road...? I think this falls in with what Mr. Lickers was saying about people down the road and how they're going to be involved with that chemical or the substance that may be in the building. Asbestos is a prime example.