Changes for Canadaʼs Environmental Protection Act

Bob Masterson
Winter 2017
GUEST COLUMN

In February 2016, the Canadian House of Commons Standing Committee on the Environment and Sustainable Development undertook a Parliamentary Review of the Canadian Environmental Protection Act (CEPA 99). The act, originally passed by former Liberal prime minister Jean Chretien’s government, established, among other things, Canada’s Chemicals Management Plan (CMP). At the time, it was considered a monumental undertaking that would take years to complete.

Canada’s chemistry sector is a very strong proponent of the CMP. The plan remains on course to be a stunning public policy success for several key reasons. Firstly, it ensured that appropriate resources are allocated to chemicals management in Canada and was implemented with external expert advice. Further, the CMP fully integrates, under many processes, multi-stakeholder, multi-jurisdictional and multi-departmental actions to manage CEPA toxic substances in Canada. 

Today, the CMP is the framework for the North American approach to chemicals management. The United States and Brazil have recently amended or proposed amendments to their chemicals management laws to emulate the risk-based approach for categorization, assessment and management of chemicals that was built into CEPA 99. Canada should pride itself on the fact that it created a model that is being emulated globally and know that Canadian risk assessments are being used the world over to determine how chemicals are managed. 

When CEPA 99 was passed, it began a very deliberate process to categorize more than 23,000 substances in use in Canada. Since then, we have categorized, assessed substances of concern and begun the management process for more than 21,000 of those chemicals. From the original 23,000, there are about 1,550 left to be assessed and these are on track to be completed by 2020. No other country has a record comparable to Canada’s. 

A core principle of CEPA 99 is a balance between identifying hazard and assessing risk. The CMP is built on a foundation of assessing risk. When a finding of “CEPA toxic” is determined, the program addresses that risk specifically in the instruments promulgated under CEPA (and other acts) to minimize the risk of exposure. CIAC has sought as much specificity as possible when substances are designated as CEPA toxic and makes every effort to ensure that only substances where a hazard accrues are managed. Where there is no exposure, there cannot be a hazard. The act establishes this balance. 

The House of Commons committee has heard from numerous organizations on the need to better protect vulnerable sub-populations by enfranchising this protection into the act. The Chemistry Industry Association of Canada (CIAC) supports the need to recognize these vulnerable sub-groups. The reality is that vulnerable populations are already explicitly considered when risk assessments are done and there are many examples where risk management measures are created with a specific vulnerable population in mind. An example of this was the removal of bisphenol A from baby bottles. Here, flexibility will give regulators the ability to use discretion. A legislative enumeration would not. 

As the work to complete the remaining assessments continues, a theme being discussed by the committee is the concept of mandatory substitution and alternative assessments. CIAC would discourage legislative changes that would enshrine a “mandatory alternatives assessment.” The condition precedent to requiring the alternative assessment is the unproven assumption that the primary chemical in question is toxic before an assessment has been finalized. CIAC believes an available alternative should not influence a risk assessment. Where a CEPA toxic designation is justified, CIAC supports the proposition that an alternative be considered as an element of risk management. Similar programs around the world, like the US EPA’s Safer Choice Program, require an identified risk before the initiative can be triggered. If nothing else, there are some substances on the toxic substances list that cannot be substituted.

Industry stakeholders are advised to watch this process very closely. Canada’s CMP is a world leader and working with our legislators to keep it that way is of utmost importance.  

Bob Masterson is president and CEO of the Chemistry Industry Association of Canada.