Guidance Document

CEPA Review: Suggested changes to CEPA to improve the promotion and protection of human and environmental health.

• Below are a series of recommendations for improving protection of human health through changes to the Canadian Environmental Protection Act.
• Members of the health community may wish to cite these suggestions or use them as a starting point for their own recommendations to the review process.

Additional background information, examples, rationale are available here

1.) The first duty of CEPA must be to protect human health and the environment  

CEPA needs to maintain its respect of sustainable development but the emphasis of CEPA needs to shift from “primarily about promoting sustainable development” to primarily focussed on protecting and promoting the health of the public and the environment. Secondly promotion of sustainable development requires that Canada act in a global fashion.

CEPA should be changed to read: The primary purpose of CEPA is protecting the health of Canadians and the environment from past, present and future activities that may cause harm, and ensure that Canada moves toward sustainable development and promotes sustainable development through its internal and international relationships.

2.) The Act must include the duty to remediate contaminated sites

Currently, the primary purpose of CEPA is to contribute to sustainable development through ‘pollution prevention’. Pollution prevention, as a strategy for protecting the environment and public health, needs to be maintained. However, its limitation to potential future releases, does not adequately address all of the issues associated with CEPA toxics and sustainable development. Other measures will be needed to address pollution and contamination of Canada’s environment and to contribute to a sustainable future.

Pollution prevention does not mean that pollution and contamination of the environment will be eliminated, that all known potential releases are known and thus can be prevented, or that there is currently technology to prevent the release of toxins.

There is a need to have remedial action as part of sustainable development.

CEPA needs to be grounded in protecting Canadians and the environment from substances present in the environment from past practices, i.e., substances released into air, soil, water, consumer products, and the built environment to promote sustainable communities.

Example: The contamination of the residential properties in Sydney Nova Scotia from the coke and steel plant, and the lack of any clean-up plan for the residential communities, exemplifies the need to take remedial and restorative action from past releases.

Thus, CEPA needs to reflect that all of these measures together will contribute to a comprehensive approach to sustainable development.

The introduction to CEPA needs to be changed to read: The Government of Canada will take preventative and remedial measures to protect, enhance and restore Canada’s environment and apply pollution prevention to mitigate future releases of toxins to promote and protect the health of the environment and public. All of these measures will be used as a means to sustainable development.  

Accordingly, CEPA section 90.1.1 needs to be revised:In developing proposed regulations or instruments respecting preventative or control actions in relation substances specified on the List of Toxic Substances in schedule 1, the Ministers shall give priority to pollution prevention actions but also specify remedial and restorative actions.

Accordingly CEPA 95.1.b needs to be revised: take all reasonable measures consistent with the protection of the environment and public safety to prevent the release or, if it cannot be prevented, to remedy any dangerous condition or reduce or mitigate any danger to the environment or human life or health that results from the release of the substance or may reasonably be expected to result if the substance is released, and take remedial and restorative actions for past releases of substances; and

3.) The use of the precautionary principle in CEPA needs to be updated and include the duty to take action

CEPA needs to maintain its positive grounding in the precautionary principle to maintain regulatory coherence with other Canadian legislation. The definition and meaning of the precautionary principle needs to be updated and reflect a “duty” approach to public health and environmental protection. The principle needs to be clearly grounded in the oldest principle of public health "do no harm". The meaning of the precautionary principle needs to specifically reflect the meaning of “harm” to the health of the environment and public, rather than “damage”.

The meaning of the precautionary principle needs to specifically reflect that it is a duty of the Government of Canada to take precautionary actions and that cost-benefit considerations apply to which specific actions are to be taken rather than whether or not action is taken.

CEPA should emphasize that both precautionary and preventative measures are cost effective such that the benefits from actions of the Government of Canada to protect and promote the health of the environment and public are maximized. As there will be a number of competing actions stemming from the duty of the Government of Canada, consideration of cost effectiveness will ensure that the maximum benefits are realized from the multiple actions that are necessary. Cost effectiveness should not be used as a reason to suppress the duty to protect the health of the environment and public.

CEPA should be changed to read:Whereas the Government of Canada is committed to implementing the precautionary principle, where there are threats of serious or irreversible harm to the health of the environment and public, lack of full scientific certainty shall not be used as a reason to postpone the duty to take precautionary actions to protect and promote the health of the environment and public. In application of the precautionary principle and principle of prevention, measures should be cost-effective.

4.) The precautionary principle must be applied to the assessment of safety for products of biotechnology

CEPA contains a specific reference to the introduction of animate products of biotechnology (Part 6). This section of CEPA contains no reference to the precautionary principle in the assessment of products of biotechnology. Use of the precautionary principle in this instance should specify the need to affirm proof of safety to permit use/marketing. While definitive proof cannot be provided with certainty, safety should be defined as 'reasonable certainty of no harm'. The concern with products of biotechnology is the introduction into the environment of new organisms, which may drastically harm the environment. In addition, products of biotechnology are also introduced into foods, and these may cause harm.

For example: While the focus of obesity has been placed on lifestyle factors, such as children sitting in front of computer screens rather than living active lives, research suggests that genetically modified sweeteners may be also playing a role. In addition, biotechnology products contain modified proteins. The emergence of "mad-cow" provides for a clear illustration where a protein is the causative agent. Until this time, protein was not thought to result in disease. Thus we must clearly respect our ignorance with respect to the harm that may result from the products of biotechnology.

Part 6 needs to be modified with clear language regarding the application of the precautionary principle and affirmation of proof of safety.

CEPA part 6 needs to include the following:The Ministers shall follow the precautionary principle and affirmation of proof of safety prior to the introduction of any animate products of biotechnology to the environment or food. CEPA must include reference to the new Ministry of Public Health. CEPA (section 45 and 55), relating to the role of the Minister of Health in preserving and improving public health, needs to be updated to reflect the new Ministry of Public Health. CEPA sections 45 and 55 needs to be changed : to include reference to the new Ministry of Public Health in all appropriate places.

5. ) CEPA must include explicit instructions for the Ministers of Health and Public Health to act to remediate and restore environmental quality when there is risk to public health

CEPA (section 55) says the Minister of Health “shall issue objectives, guidelines, and codes of practice with respect to elements of the environment that may affect the life and health of the people of Canada”. Section 55 needs to also ensure that public health is protected and therefore there is a need for explicit instructions of the Minister of Health and Public Health to act to remediate and restore environmental quality, in particular, where there is a potential for harm to people, i.e., contaminated sites in communities.

Example: The case of the Sydney tar ponds exemplifies the need of the Minister of Health and Public Health to act to ensure that public health is being protected. The residential community is contaminated with CEPA toxics, and there is no remedial plan in place. Canadian soil quality guidelines are not being used and have been arbitrarily increased. The approach suggests a "pollute up to the arbitrary guidelines" rather than taking remedial and restorative actions to protect and promote public health.

In situations where timely action has not been taken, the Minister of Health and Public Health should take the remedial actions that are necessary (consistent with section 76.2.1 and section 95.5), and apply the costs to the polluter consistent with the polluter pay principle in CEPA (section 98.1).

CEPA (section 55) should have the following added:In cases of present or past contamination where public health is potentially affected, the Ministers of Health and Public Health must act to ensure that remedial and restorative actions are taken to protect and promote public health. Costs of remediation should be obtained from the parties responsible for the contamination.

6.) CEPA must include the development of legally enforceable standards

CEPA section 2 (1) (g) aims to "establish nationally consistent standards of environmental quality". The language in other parts of CEPA does not reflect similar goals; using instead: 'guidelines' (46.1), 'environmental quality objectives’ (54.1.a), 'environmental quality guidelines' (54.1.b), 'guidelines' (54.1.c), minister of health shall issue 'objectives', guidelines', and 'codes of practice' (55.1, 55.3), formulation of guidelines (69.1, 69.3) and the term “standard” is absent from 54.2 and 54.4.

CEPA needs to clearly articulate that standards, grounded in legislation, should be developed for CEPA toxics. These should be published in the Canadian Gazette, and be legally enforceable. Standards need to be included in section 93.1., and consider all environmental media, not just refer to the quantity released, or its presence in products. There needs to be explicit mention that standards and guidelines do not mean"pollute up to limits".

Example: The current Canada Wide Standards for particulate matter and ozone are not actually enforceable standards but are guidelines. Therefore, the meaning of standard needs to be articulated as legally enforceable. The need for standards defined as such is exemplified by the situation in Sydney Nova Scotia. The current Canadian Council of Ministers of Environment (CCME) guidelines are exceeded in the residential soils for lead, arsenic, PAHs among other CEPA toxics. The guidelines for this situation were significantly raised such that remedial actions were considered not necessary by the Government of Nova Scotia, since they were now “contaminated to a typical level for an old industrial neighborhood”. The CCME guidelines were not enforceable or respected, the guidelines are treated as "pollute up to levels", and were not used to afford protection to the environment and public health.

The administrative duties of the Government of Canada within CEPA, needs to be changed to state: Ministers shall develop and publish standards for substances, which specify the maximum levels of a substance which can be released. Remedial and restorative standards shall be used to specify targets where remedial and restorative actions are necessary, and represent levels of minimum harm to the environment and health. Standards and guidelines shall not mean “pollute up to levels”, and actions should strive to minimize the presence of the contaminants in the environment in order to promote and protect the health of the environment and public.

Accordingly, section 55.1 the formulation of the Minister of Health should be changed:For the purpose of carrying out the mandate of the Minister of Health (and Public Health) related to preserving and improving public health under this act, the Minister of Health (and Public Health) shall issue standards, guidelines, and codes of practice with respect to the elements of the environment that may affect the life and health of the people of Canada.

7.) Under CEPA, the Ministers of Environment, Health and Public Health should play a lead role in ensuring that the provinces and territories take action.

Under CEPA, Environment Canada, Health Canada, and the new ministry of Public Health need to play lead role in ensuring provinces and territories act to promote and protect the health of the environment and public. CEPA (section 6.1) specifies that the Minister shall establish the national advisory committee (NAC). The NAC is to advise the Ministers (6.1.a). There needs to be a similar process, perhaps through the NAC, where the Ministers, including the new Minister of Health, should advise provincial governments on appropriate action with respect to matters relating to CEPA. This will help to ensure that all Canadians receive similar treatment with respect to protection of the environment and health, that all national standards, guidelines, and codes of practice are appropriately adopted and enforced in each area of Canada.

Example: The disparity in the treatment of the residents of Sydney, exemplify the need for the Ministers to play a lead role in ensuring the protection and promotion of public and environmental health. Currently, the Government of Nova Scotia has not acted to protect and promote the health of the environment, and public. The CEPA toxics present in the tar ponds have polluted the Sydney harbour and the Atlantic ocean. There are similar, although perhaps less contaminated situation occurring in other Canadian communities. For example, in Beldune, New Brunswick, the community is contaminated with lead from the local smelter, and there has been little initiative to address the contamination. The Ministers should play an active role in providing leadership such that appropriate guidelines are enforced, and that remedial technologies used are protective of public health.

CEPA section 6.1 should include the following: The Ministers shall advise jurisdicational governments, through the NAC, the appropriate standards, guidelines, and codes of practice, to promote and protect the health of the environment and public.

8.) Under CEPA, Environment Canada, Health Canada, and the new ministry of Public Health need to play lead role in ensuring that other Canadian and provincial legislation, is enforced in a timely fashion

Under CEPA, Environment Canada, Health Canada, and the new ministry of Public Health need to play lead role in ensuring that other Canadian and provincial legislation is enforced in a timely fashion to protect and promote the health of the environment and public.

CEPA is supposed to act as a safety net and is meant to compliment other laws such as the Food and Drugs Act, and the Pest Control Act. However, consumer products do not appear to be regulated by CEPA, and this needs to be changed.

For example, costume jewelry can contain significant amounts of lead. On March 6, 2001, CBC's marketplace, reported several pieces of jewelry containing significant amounts of lead. According to the Director General of Health Canada's Product Safety Program “there is nothing preventing the sale of those particular items at the retail level," CEPA must be changed to protect children from harmful CEPA toxics in consumer products. Health Canada does have the power to get hazardous consumer products off the shelves. The department announces many recalls and advisories — which are reported on this website. But -except in very rare circumstances- the recall process is voluntary. The federal government lacks the power to demand that an industry recall consumer products. It can recall some products including medical devices. . With respect to consumer a warning or an advisory is issued rather than a recall.

CEPA is supposed to provide a means to ensure that substances are not specifically covered under other legislation meet Canadian standards in the areas of human health and safety, and environmental protection.

CEPA needs to changed to provide legislative power to address limitations in other acts. CEPA needs to be modified to provide the Minister of Health, Public Health, and Environment Canada the power to remove any product which contains CEPA toxics.

The preamble to CEPA needs to contain clear language that its legislative powers are applicable to other legislation in Canada:Whereas the Government of Canada recognizes the need to recall, withdraw, prohibit the importation, or production in Canada of any products which contain toxic substances which may harm Canadians, or disposal of such products which may harm to the environment, and these discretionary powers extend to other legislation,

CEPA part 3, information gathering, needs to be modified accordingly to include: Where the Ministers have reason to believe that any product contains toxic substances, they are required to collect information to affirm the suspicion, and if present, submit costs for testing to the manufactures or importers of such products. The information gathered shall be posted in the Canada Gazette such that Canadians can remove such products from their homes and provide them to the Ministers for proper disposal.

CEPA part 5 section 68 needs to contain specific language to control toxic substances in consumer products.

CEPA part 10, enforcement, needs to contain specific language to address manufactures and importers of products which contain CEPA toxics.

9.) Alignment of CEPA subsections to allow Ministers to use scientific data from other countries to identify toxic substances to include on the virtual elimination and domestic substances lists

In section 73.2, CEPA reads: "Where available information is insufficient to identify substances as referred to in that subsection, the Ministers, to the extent possible, cooperate with other governments of Canada, governments of foreign states or any interested persons to aquire the information required for identification" In accordance, the Ministers should review for inclusion as CEPA toxics in addition to the PSL, 25 substances and (25 additional substances assessed for 2000) the International Agency for Research on Carcinogens (IARC) Group 1, proven human carcinogens, and Group 2, probable human carcinogens, carcinogens, reproductive and developmental toxins, neurological toxins, identified in the United States National Toxicology program, and other governmental publications.

This review will be a cost-effective way to identify toxins that may cause harm to the health of the environment and public. This will allow limited resources to be spent on other toxins which are especially applicable to Canada rather than evaluating toxins which have been thoroughly studied elsewhere. CEPA section 66.3, should be modified to include a statement pertaining to the screening of information generated by other regulatory agencies to provide scientific data and rationale for toxic substances to be included in the virtual elimination list(65.2) and the domestic substance list (66.1).

CEPA section 66.3 needs to be changed:The Ministers shall screen IARC, the US national toxicology program data, and other regulatory bodies for scientific data relating to toxic substances to be put on the virtual elimination list and domestic substance list (66.1).

10.) CEPA must have take precedence in cases of conflict in actions arising from infractions of other Acts

CEPA is the legislative underpinning of various Acts that protect the environment and health. However, the problem of enforcing CEPA in cases of infractions of the other Acts is a challenge between different Ministries within the government of Canada

Example: "Ships are using Canada's ocean coast as dumping grounds and killing 300,000 birds a year because the cost of disposing the bilge in port is higher than the fines they would face if caught.” the World Wildlife Fund of Canada charged. T he fund called for stricter laws as well as better air, ship and satellite surveillance, ship traffic monitoring and in-port inspections to reduce the amount of dumped oil.

Fines in the United States are five to a thousand times higher. Low Canadian fines encourage foreign ships to dump oil in Canadian water before returning home.

CEPA needs to clearly indicate that the Ministers of Environment, Health, and Public Health, have a duty to apply CEPA and enforce regulations of all assocaited ACts.

The introduction to CEPA should changed and clearly state: Whereas CEPA provides powers to the Ministers of Environment, Health and Public Health, to take action to protect and promote the health of the environment and Canadian public, CEPA provides the legislative mandate to act in circumstances of legislative conflict pertaining to matters related to protection of health and environment.

11.) Clarify use of term “risk assessment”

Risk assessment of harm to the environment and public health must reflect a broad meaning of health. Risk assessment needs to be defined as a tool toward less harmful activities and sustainable development (not as means to rationalize release of toxic substances into the environment)

12.) CEPA needs to explicitly reference public consultation by the Ministers with affected communities.