Canada Chemical Management: Potential 2018 Changes - Weekly Compliance Digest

October 20, 2017

In this edition of the Weekly Compliance Digest, we cover recommended changes made by a Canadian parliamentary committee to the Canadian Environmental Protection Act (CEPA).

Strengthening the Canadian Environmental Protection Act, 1999

What is CEPA?

The Canadian Environmental Protection Act (CEPA) is an important Canadian chemical control law passed in 1999. Officially it is a legislation “respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development” and covers a range of activities that affect human health and the environment. This post focuses mainly on the regulation of chemicals. There are three important substance inventories or lists under CEPA:

  • Domestic Substances List (DSL): Inventory of approximately 23,000 substances in Canadian commerce; used for manufacturing purposes; or manufactured in or imported to Canada. The DSL is the sole standard against which a substance is judged to be “new” to Canada. With few exemptions, all substances not on the list are considered new and must be reported prior to importation or manufacture in order that they can be assessed to determine if they are toxic.
  • Non-Domestic Substances List (NDSL): This list is based on the U.S. EPA’s Toxic Substances Control Act (TSCA) Inventory, and contains more than 58,000 entries. Substances not on the DSL but listed on the NDSL are still subject to new substance notification but with lesser information requirements.
  • National Pollutant Release Inventory (NPRI): Inventory of pollutant releases (to air, water and land), disposals and transfers for recycling by facilities that meet reporting requirements. Currently the inventory includes the releases of 343 substances from 7,720 facilities.

What are the latest developments?

On June 15, 2017, a committee of Canada’s House of Commons released a report that includes 87 recommendations to strengthen and modernize CEPA.

On October 6, 2017, Canada’s Minister of the Environment and Climate Change responded to the report on behalf of the government. While the government response does not express opinions regarding the 87 recommendations, it nevertheless acknowledges that:

  • Environment and health risks have evolved since the act was passed in 1999.
  • Changes are needed to modernize and improve CEPA.

The Government of Canada is committing to consider each of the report’s recommendations and to respond by June 2018. It is also committing to examine potential amendments to CEPA, and is considering regulatory, policy and program changes that respond to some of the committee’s recommendations. Any confirmed changes would take place in 2018 or beyond.

What are the main recommendations?

While the fate of the recommendations remains to be determined, companies should familiarize themselves with the main ones in case the Government of Canada proceeds with them. Among the 87 recommendations, here are the most noteworthy ones for industry. Recommendation numbers from the report are included so you can easily locate the full recommendation if you want to learn more:

Recommendation 12: Provide the government with the authority to request the following information for the purpose of assessing whether a substance is toxic:

  • Methodology, data, models used, etc.
  • Samples of the toxicological tests and/or the other tests.

Recommendation 15: Mandatory hazard labelling of all consumer products containing toxic substances.

Recommendation 19: The NPRI be improved by:

  • Removing the exemption for oil and gas exploration and drilling.
  • Requiring reports on facility operational performance on pollution prevention and reduction.
  • Including daily, weekly and monthly pollution data.
  • Considering lowering thresholds for NPRI reporting.

Recommendation 20: All substances known to be persistent and/or bioaccumulative be included in the NPRI.

Recommendation 41: Require a reverse-burden approach for substances that are of very high concern, including carcinogenic, mutagenic, and toxic to reproduction (CMRs); very persistent and very bioaccumulative (vPvBs); and persistent, bioaccumulative and toxic (PBTs). These substances should be prohibited unless industry can demonstrate that they can be used or emitted safely. (Note: This is similar to provisions of the EU REACH regulation)

Recommendation 44: Implementation of measures, thresholds, techniques and reporting requirements specifically addressing endocrine disruptors.

Recommendation 46: New requirement that, when determining if a substance is toxic, aggregate exposure to and cumulative and synergistic effects of the substance be assessed, and that an assessment process be used that looks at multiple points of exposure.

Recommendation 50: Mandatory reassessment of a substance, within a prescribed timeline, when another OECD country has placed new restrictions on it, or when the use of the substance in Canada has significantly expanded since the original assessment, or when new scientific findings become available.

Recommendation 57: Mandatory duty to assess alternatives as part of all screening assessments of existing substances.

Recommendation 58: Ensure that decisions about how to regulate toxic substances are based in part on information about substitutes, with a goal of replacing toxic substances with safer alternatives.

Recommendation 59: Ensure that alternative assessments include considerations of the opportunities, costs and feasibility of adopting and implementing safer alternatives.

Recommendation 75: Notices and manifests required under the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations should require information on the presence of CEPA-toxic substances in waste streams, or the quantities or concentrations of such substances.

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