Resolving the Stigma Problems in CEPA
By Micheal Teeter, Principal
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Executive Summary of the Options
Canada’s Environmental Protection Act quickly revealed serious flaws since enacted over five years ago. Consequently, counter-productive conflicts between government officials and affected industries have been created that have consumed many resources without improving environmental management in Canada. Hillwatch Principal Michael Teeter, an expert on the Act, has developed the following discussion paper for both Government and Industry consideration suggesting options to reform and improve the Act.
The stigma of labels within CEPA is increasingly recognized as an impediment to effective national environment management systems. By placing stigma on products in commercial use, scarce resources are dedicated to resolving conflicts. The spirit of cooperation required to effectively implement environmental management systems is lost when bad will creates disincentives to positive change.
What we need is a legislative and regulatory regime where stakeholders focus on what is really important: preventing and managing pollution. For the most part, pollution is created by people; by human activities; and by the use of products or substances in quantities and in environments that cause environmental problems. In a society where there are scarce resources and many problems to address, the solution is for all Canadians and Canadian businesses to endorse and take action in support of proper environmental management.
One of the foundations of CEPA is to catalogue and classify all substances in use in Canada. This is an important objective. However, it is also CEPA 99's need to put substances and products on lists that cause the disputes when it is proposed to call a product toxic or hazardous. This is particularly the case when the reasons for labeling a product this way may have little to do with the common understanding of the toxic or hazardous label.
A necessary Change: Amend the definition of Substance in Section 3
Recognizing that products or substances create environmental problems, only when they are used by people in a certain way, would go a long way to resolve the stigma issue in CEPA. A small amendment to the substance definition in CEPA, to allow for a substance to be clarified by its use, its environment, the species affected, etc., would allow the labels to be applied (if they are applied at all) where they need to be applied- that is, on the circumstances that generate the pollution in the first place.
List and Decision Making Options: There are some excellent ideas on the table
Option 1: CEPA Registry and Regulations in Context
Once substances have gone through a screening assessment or other form of risk assessment, they could be placed on the CEPA Registry. The Registry list could apply to substances in commerce, as well as wastes. As in the current structure, Ministers could be responsible for registry decisions. Flowing from the registry could be voluntary risk management programs, as in this instance regulatory authority would not be required.
If regulations were required, then substances (in context) could be recommended to Governor in Council to be placed on Schedule 1 of CEPA (or the Hazardous Waste Schedules) so that regulations (in context) could be promulgated.
A related approach would be to proceed directly from the CEPA Registry to regulations in context. Governor in Council decision-making authority would be required.
Option 2: Create a "Substance to be Managed" Category
A new schedule (i.e. Schedule 9) could be created where "substances to be managed" could reside. Again, assuming the modification to the substance definition, lists of substances in context could be placed on either Schedule 1 or Schedule 9. The full suite of risk management instruments could apply to substances on either list. The CEPA Registry could be used as proposed in Option 1. Governor in Council would govern the migration to Schedule 1 or Schedule 9, upon the recommendation of Ministers.
Option 3: Create an "other" category
Similar to Option 2, the CEPA Registry could be used for all assessed substances. Two schedules would exist: one would be schedule 1 for toxic substances (with the permitted context) and one would be Schedule 9 for other substances (with permitted context). Governor in Council would govern migration to the Schedules, upon the recommendation of Ministers.
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Related Hillwatch Policy Brief:
The Implementation of Canadian Environmental Protection Act 1999: Why Industry should care!