Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 4 - Evidence - June 15, 2006
OTTAWA, Thursday, June 15, 2006
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:05 a.m. to review the Canadian Environmental Protection Act (1999, c. 33) pursuant to section 343(1) of the said act.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: This is a meeting of the Standing Senate Committee on Energy, Environment and Natural Resources and is in continuing preparation for its review of the Canadian Environmental Protection Act. This morning we have with us Senator Francis Fox, from Quebec; Senator Willie Adams, from Nunavut; Senator Claudette Tardif, from Alberta; Senator Hugh Segal, whom we are pleased to welcome today, from Ontario; and Senator Mira Spivak, from Manitoba.
We are continuing our examination of the ways in which we should undertake the substantive aspect of our review. For the first few weeks we have asked these first witnesses to come before us to help us determine exactly how we will approach this review, how broadly or how deeply we should attack the question, and to get good advice and instruction from them.
This morning, our witnesses are Mr. Ken Ogilvie, Executive Director of Pollution Probe; from the Canadian Environmental Network, we have Ms. Anna Tilman, co-chair of the toxics caucus; and Ms. Delores Broten, co-chair of the toxics caucus.
I believe, ladies and gentlemen, that you have a statement to make. I hope that you will do so succinctly because we are anxious to ask you questions. We seek your instruction, assistance and direction in setting the course of our review.
Anna Tilman, Chair, Save the Oak Ridge Moriane (STORM) Coalition: Thank you, we are pleased to have this opportunity to make a presentation to the committee on the review of CEPA.
We feel that the subject is most important and requires both your consideration and analysis. We are pleased that the committee has taken an interest in this topic.
You have our brief, I believe. We will be talking about the major points, although we will be leaving out some things in the presentation. We welcome any questions you have on matters pertaining to the brief and other matters related to CEPA.
I know you have some sense of who Ms. Broten and I are, but we want to specifically indicate our experience with the application of CEPA. We have been involved in many consultations, through the Canadian Environmental Network, with Environment Canada and, at times, Health Canada, on several matters pertaining to the Canadian Environmental Protection Act. We have had firsthand experience of how the act is working.
In particular, I have been on the advisory committee for the CEPA review, a committee that has existed for a year and a half, and have prepared scoping documents and cross-country public hearings. These were run through Environment Canada and Health Canada and gave us an opportunity to hear the concerns of others. We consider ourselves to be representatives of public interest groups.
I have also been involved in Canada-wide standards processes — all of them — and will allude to that later in the presentation.
I find that my background in sciences and mathematics has been extremely helpful in representing the public interest and getting to the crux of the matter.
I would like to turn it over to Ms. Broten.
Delores Broten, Senior Policy Advisor, Reach for the Unbleached Foundation: I am from British Columbia, where I have been working primarily on pulp and paper industry pollution issues for well over 15 years, both under the old CEPA and CEPA 1999, because a large number of pulp and paper pollutants are what we call CEPA toxic.
I also edit an environmental newsmagazine in British Columbia called the Watershed Sentinel, so I hear the stories of most of the smaller citizens' groups who are trying to work with the federal law to deal with pollution and other environmental issues in their communities.
Ms. Tilman: For your information, and to clarify a few points, the Canadian Environmental Network is a non- partisan organization of approximately 800 environmental groups across the country. CEN, as we call it, does not take positions; member groups can do that on certain matters. We want to clarify that even if we say we are from CEN, we are not representing CEN with these views. We are representing our own organizations at this meeting.
We also have had opportunities to discuss issues related to the CEPA and the CEPA review with many of our member groups. I coordinated a workshop on the CEPA review recently, where we brought environmental organizations from across the country together to discuss priority issues. That is the background — and we do agree on a number of fundamental issues.
The Chairman: Before you proceed, I introduced you both as representing the Canadian Environmental Network and you have now explained that you are not. Perhaps you should tell us, for the record, who you represent precisely, because I gather you will express an opinion, and you said that CEN does not express opinions. Tell us whose opinion it is, please.
Ms. Tilman: The opinion is that of my member organization, STORM Coalition, Save the Oak Ridges Moraine Coalition, of which I have been chair for a number of years. It is an Ontario-based organization.
The Chairman: Could you tell us about your organization as well, Ms. Broten?
Ms. Broten: The organization I am representing is called Reach for Unbleached. It is a national, registered charity that works for a sustainable pulp and paper industry and promotes a market for clean paper.
Ms. Tilman: As you are aware, CEPA 1999 is Canada's principal piece of legislation for protection of human health and the environment. The six years since CEPA 1999 has been in force have given us the opportunity to see its application and assess the issues and how effective it is, in certain cases.
It is striking that the preamble of CEPA contains good clauses, but there are several elements, when it comes to the application, that have not been implemented or enforced. That is a major issue for us.
There are other areas where the act needs to be strengthened and clarified so it can do what it purports to do — protect human health and the environment.
With that in mind, and after discussion with many environmentalists who are members of the Canadian Environmental Network and others, a number of basic issues have emerged. They are listed, but I would like to call your attention to the six major ones: implementation of the precautionary principle; pollution prevention; public participation, and that includes the public's right to know; toxic substances, referring to the assessment and control of toxic substances; accountability and enforcement; and international agreements.
During this presentation, we will cite a few instances where we feel the act has not been effective or well utilized in dealing with these toxic substances. Let me take you through these fundamental themes and highlight the overarching problems that we have seen.
The first one is implementing the precautionary principle. We do not see that as being operationalized under CEPA through the lengthy process that is involved. We find that to be a problem because of the tie-in with the cost-effective constraint in applying the precautionary principle. Cost-effectiveness has often been used as an excuse for not doing something, and that is in conflict with precaution. The public expects to be protected in this matter; that is a full-stop situation. Therefore, those arguments do not hold.
The second overarching issue is pollution prevention, which is fundamental to CEPA 1999. In the preamble and throughout the act, the move to a preventive mode was the big change. It is considered Canada's priority approach. However, in witnessing how that has been applied, we find several weaknesses.
Mainly, pollution prevention planning is being utilized, both in emergencies and other cases. However, the dates that these plans come into effect are too far in the future for us to even know if they have an effect. I wish to cite one example that I have been intimately involved in, pollution prevention planning for base metal smelters.
You may or may not know that base metal smelters are the single largest source of sulphur dioxide and what are known as CEPA-toxic metals in Canada — arsenic, cadmium, lead, mercury and nickel. Canada is the only country in the developed world that has two smelters, operating in Manitoba, where there is no method of capturing the sulphur. That is not a very favourable position for Canada to be in.
A P2 planning instrument was finalized for the base metal smelters in April of this year.
The Chairman: Pardon me, but could you explain what you mean by P2?
Ms. Tilman: It means pollution prevention. Sorry for using the acronym.
Targets were set for sulphur dioxide and what is known as particulate matter, which contains all kinds of nasty substances. These targets were factors to consider, but they are not legally enforceable. Many of these limits or reduction targets will not have any impact until maybe 2015, if they are even met, so they can continue to pollute.
The metals are a huge concern. For example, arsenic has been found in children's playgrounds near Flin Flon. We know the problems there, but there are no limits set for these metals. As I said, this is a major source of metal pollution in our environment. One particular facility in Flin Flon is the largest single source of mercury emissions into the air in North America, and there is an unenforceable limit that applies to that.
This is an example of where pollution prevention planning does not seem to really address pollution prevention. If you look at these pollution prevention documents, they are mainly control documents. I can answer any further questions you may have on that.
The next major topic is public participation. Once again, CEPA 1999 enshrined putting much more effort into public participation. It established the Environmental Registry, which allowed people to get information about what is going on and encouraged the participation of Canadians.
This has led to an improvement in access to information, but we have noticed deficiencies. Crucial to environmentalists and the public is the National Pollutant Release Inventory, which is under CEPA and one of the most important of the right-to-know provisions. We have noticed that improvements have stalled lately. We have questioned the will to get the appropriate information out to people and collect reasonable data. Particular examples have emerged in air contaminants data, which has led to questions about the validity of what has been reported by industry.
This is crucial in terms of our international agreements. I was a delegate to the U.S.-Canada ozone annex discussions, representing public interest organizations, and there are obligations that we cannot meet if we do not have the appropriate data. We are facing that concern right now with the inventory.
I would urge this committee to look at the barriers to public participation and at ways and means of improving and strengthening the transparency and right-to-know provisions in CEPA. I am citing the National Pollutant Release Inventory, or NPRI, as a particular case of interest in terms of issues of confidence.
The next major area is toxic substances. That is where the assessment and control is done. The current process is very lengthy. CEPA does not look at the safety of substances appropriately. It does not invoke the precautionary principle in its assessment or require the use of safer alternatives. It does not look at the synergistic, combined effects of exposure to multiple pollutants, which is a particular problem. Threats to environmental health have been allowed to remain, and even increase with time, and this is especially harmful to vulnerable populations. We feel that a CEPA review should examine ways in which these timelines could be accelerated, and we can make some suggestions there.
We also feel that CEPA should explicitly provide the authority to regulate toxic substances in consumer products, which it does not do currently, and, in that case, require the use of safer alternatives.
Another issue is what we call reverse onus, or shifting the burden onto industry to prove a substance is safe before it is allowed to remain on or enter the market. Some of that is being done now under the section on new substances, but overall, there are areas of great concern there.
I mentioned virtual elimination in the brief, but because of time constraints I will move on. You can read that, and we can talk about the banning or not banning of substances.
A major issue is implementation.
The next is accountability and enforcement, and these are essential. An act is only as good as its implementation. We feel that the accountability and enforcement powers have rarely been used. We believe that there have been indications of that in a presentation by the Sierra Legal Fund, which has reviewed the enforcement aspects and found them to be weak. The review needs to examine this. It is crucial. This is perhaps one of the most critical points in all of CEPA. While parts of the act are good, if we do not implement it, that does not mean much. We are wondering about the resources or the will to actually enforce CEPA.
One area that is particularly problematic and is perhaps related to enforcement is the provisions for equivalency agreements in harmonizing environmental standards. Canada-wide Standards were used under the Canadian Council of Ministers of Environment, but they are not really standards, in the sense that they are unenforceable. They are guidelines, and they are not necessarily health based or adopted or monitored consistently.
I would like to give you a critical example of this, mercury. I have been involved in all of the Canada-wide Standards processes but one, and there were six. As you probably all know, mercury is one of the most pervasive toxins; it is bio-accumulative and persistent. Under CEPA, it is a toxic substance, but because it is a natural substance, it is cited for life cycle management. The Canada-wide Standards was chosen as the process to control mercury emissions — atmospheric only, in this case. I worked on a number of them, in particular, the ones for coal-fired power plants, which is a topical issue. I have been working on it for over seven years and have documented two major reports for Environment Canada, which you can have if you are interested.
After seven years of talks, which were highly controversial, a draft standard finally emerged recently. I do not know if that draft will be signed this June or not, but it is extremely weak. I have highlighted a few points there, and I can give you a report I sent to Environment Canada and the Province of Ontario on this. These standards are non-enforceable. They do not include new facilities, and we know there is growth there. They do not address life cycle management. We have taken all this time to produce a document that I am afraid is not very good. In the time that it has taken us to do that, mercury has continued to accumulate, and we know the problems with that. A CEPA regulation that actually stipulated reduced emission targets and was enforceable would have been the way to go, and we advocated that for years. It is long overdue.
I want to point out the fallacy now in Ontario and its energy crisis, after Ontario said they would get out of coal by 2009. They set a limit of zero for mercury emissions. That cannot be met. If you have any questions on that, I would be pleased to give you more information. I have a lot of it.
I would like to turn it over to Ms. Broten for another example.
Ms. Broten: I have been involved in the development of the Canada-wide Standard for the virtual elimination of air- borne dioxins and furans from coastal pulp and paper mills. This was another seven-year process, with many meetings. Dioxins and furans are created when coastal pulp mills burn salty hog, which is wood chips from logs that have been stored or transported in the ocean, so the logs soak up salt.
When you burn wooden material that contains lots of salt, you create dioxins and furans. The long process involved first discussing whether or not the dioxin was safely stored in the pulp mills' landfills. They are built for 100-year weather events, and they have a plastic liner with a 30-year lifespan, so I do not know how long that dioxin will be safely contained.
We finally managed to get pollution prevention included in the Canada-wide Standard. It took several years of negotiation to achieve this. We wound up with a lot of feasibility reports, which essentially said it was too expensive to do anything about taking the logs out of the water, or technically impossible. We kept saying that pulp mills in the rest of the country do not have this problem. It is only the coastal mills, where the logs are transported in the ocean. However, in the end, there was no real pollution prevention.
On top of that, although there was a Canada-wide Standard for new power boilers for coastal pulp mills, it did not have any standards for other uses of salty hog, such as, for example, burning wood chips to create electricity, which they call biofuel, or to heat greenhouses. Those uses are increasing with the energy crisis and the cost of fossil fuels. The Canada-wide Standard leaves out a lot of the sources of pollution and does not actually do any pollution prevention.
Ms. Tilman: If this committee is looking for something to do —
The Chairman: I would not put it that way, exactly.
Ms. Tilman: One of the areas is a review of the federal-provincial processes of harmonization. In particular, you might find the Canada-wide Standard of interest, and whether that adheres to the principles of CEPA. I am talking about the overriding principles, and whether they do in fact protect the environment and health in an equal manner in all parts of Canada. Unfortunately, when you resort to the lowest common denominator to try to get everybody to agree, what do you end up with?
I will tell you one thing that is not in the brief, but it is important: The Canada-wide Standards set for particulate matter in ozone have been acknowledged to be not fully protective of human health and the environment.
These substances have been declared toxic under CEPA. I think it is a huge issue.
The Chairman: Who should be acknowledging this?
Ms. Tilman: It should be within the standard itself. If you read through the document, the Canada-wide Standard, you will see it is right there; it is acknowledged.
This is not a personal opinion; this is something they knew. When they set the standards, the negotiations that resulted involved levels — and they are not enforceable — that were not fully protective.
The last issue is Canada's international agreements. Obviously, we have signed and ratified a number of protocols that deal with air, water, waste and a variety of issues. However, there is no mechanism in CEPA to look at how Canada is doing in terms of these international agreements and what kinds of data are collected to support whether we are moving toward meeting the goal. There needs to be some effort made to refer to these international agreements and look at how CEPA can be used in that context.
I cited one example — time prevents me from going into it right now — the Gothenburg protocol. I was shocked. Canada tends to sign on and be right up there as a leader in some of these agreements. I found out quite recently that we signed that agreement but we cannot ratify it. It is air related, and because of increasing levels of emissions of volatile organic compounds and the poor data — and I have referred to data before — Environment Canada is not getting the information needed to properly assess the changes.
You will be hearing shortly from Ken Ogilvie. We support the comments that Pollution Probe is setting forth and we request the committee carry out a comprehensive review of CEPA before making its final recommendations.
The failure to implement CEPA and address the weaknesses means that it is not fulfilling what it is intended to do — its key function is to protect human health and the environment — and this has to change. This is our opportunity, as Canadians, to do some serious work on this.
We have a number of member organizations — we are only two — that would like to have opportunities to present their different experiences with various aspects of CEPA. There is a host of them. We strongly recommend that the committee refer to them for on-the-ground stories. We thank the Senate for this opportunity to present our views. We look forward to providing assistance and cooperation and any further information and documentation you may want from us during this period.
The Chairman: Thank you. You both mentioned some materials that you said that you would be happy to provide to the committee. I now ask you to provide them. If you would please send them to the clerk of the committee, we would be grateful.
Mr. Ogilvie, you have the floor.
Ken Ogilvie, Executive Director, Pollution Probe: I too am pleased to be here and welcome the opportunity to speak to the Senate. I will cover some of the same broad conclusions and points that my colleagues have made and I will illustrate those in a couple of areas. I will not take too long with my presentation.
For those of you who do not know Pollution Probe, we have been around since 1969. It was originally a student movement around environmental issues on the University of Toronto campus at a time when other issues, like the Vietnam War, were raging. There were more letters to the editor of the varsity press on pollution issues than on the Vietnam War; that was interesting.
Pollution Probe tapped into a latent energy and concern over the environment at a time when there were no environment ministries in existence, federally or provincially, in Canada, and no vice-presidents of sustainable development in industry.
We have seen the evolution in environmental policy over about four decades. We have a strong public donor base that helps finance our work. We have shifted our emphasis as an organization, over three to four decades to today, to bringing people together and forming partnerships among government, industry, NGOs and health groups to try to get solutions on the table.
I spent 20 years in government before I moved to Pollution Probe. I worked at the policy level for governments in Manitoba and Ontario and the federal government. I have a pretty good understanding of what goes on inside bureaucracies and I have a little sympathy for those doing the task. I do not know if I should. Actually, I am less critical, in some ways, of some of my former colleagues in government because I know what it feels like to have a lack of resources and, perhaps, a lack of bureaucratic and political support on key issues that demand action.
However, I have to say that my main conclusion is that Canada has a significant performance gap vis-à-vis some other nations, despite having legislation that could have enabled us to be a leader, or at least right up there in the pack. There are some good features of CEPA, and there are some awkward features that do not parallel legislation and practice in other jurisdictions. I cannot speak to those fully today.
I have a thoughtful report being prepared by a group in the United States called Environmental Defense, and headed by Dr. Richard Denison, an expert on U.S. toxics policy and on the REACH legislation in Europe, but less so on CEPA. Dr. Denison has been back and forth to Canada and is looking carefully at similarities and, particularly, differences and best practices in legislation and policy among the three domains. I will have a draft report in September and will submit that to you. I am desperately hoping that the review process lasts long enough that we can present that to you. I would hope to be able to bring Dr. Denison up here so you can ask him questions yourselves. He is not planning to try to compare everything that can possibly be compared in the legislation. He intends to focus on key areas. He will focus on the issue of what data we have for making decisions in Canada, because there are some significant problems in making decisions, even if we wanted to, when we do not have the right information. I will illustrate briefly. I would rather have him go into depth on that, because he is a strong primary researcher. He looks at numbers and adds them up. He leads initiatives such as the work on high-volume chemicals, which originated from a report that he wrote for Environmental Defense.
I do want to bring that forward, but it is not in a form in which I can, at this point, share any conclusions.
There is an opportunity to not only look at and comment on the performance gap, but to bring CEPA up to speed with best practices elsewhere, or at least to wire into CEPA provisions that would require the gathering of the right kind of information and the right kind of action-oriented responses to that information. I am encouraging the Senate to look into that carefully.
What do I mean by areas of concern and performance? I have brought for you copies of all the references, especially the ones Pollution Probe has prepared, and I have largely focused my presentation on things that we have done. I am not a lawyer or an expert on CEPA and there is a lot of other expertise bringing those issues forward. I will touch on areas that we have worked on and I will leave documentation with the staff.
Since the early 1990s, Pollution Probe has been working on the smog issue. We prepared these primers, these educational documents, which took a year or two to produce. These are not advocacy documents. They explain the science and tell people what is being done about it; they tell the public what they can do to protect themselves. We are greatly concerned about the smog issue. If you look at the OECD report, which we have referenced in the submission, there are certain reasons Canada has a high energy use and high emissions, but it is at the bottom of the pack of performers on the criteria pollutants such as VOCs, NOx, SO2, and so on.
That is a very serious issue; the medical information on smog's impact on human health is quite deep.
We highlighted that Canada has lagged behind its partners. You have heard a little about smelters and how far behind we have fallen on those. We do have some policy in that area now. Hopefully, in the next decade we will improve it significantly. Those are illustrations of performance gaps.
We are also concerned about climate change and impacts on human health. Even with reduced levels of some of the smog pollutants, the precursors to what is called photochemical smog, more heat and more sunlight drive the production of more ozone, for example. I have given an example of a report that we did on the Toronto-Niagara region, and the numbers in my presentation are quite dramatic. Without further action, we projected that the number of days exceeding 30 degrees centigrade could double by the 2030s and surpass 50 days by the 2080s. We know there are heat-related premature deaths, particularly among the elderly, and the numbers could rise dramatically by the 2020s. Background ambient levels of ground-level ozone are projected to double under climate change. That would mean more frequent stagnant air masses, which could increase from 5 per cent of summer days to 23 to 39 per cent. This is based on the best science available at the time.
Pollution Probe is also part of what are called the climate change impacts and adaptation studies. My senior scientist is the co-lead on it and will be the co-author in early 2007 of an updated report on climate change impacts and adaptation in Ontario. That is the part he is working on.
As you probably know, some of the more recent science around climate change is suggesting that some of the impacts are greater than the scientists had originally projected. There could be some worsening. There is a definite link among heat days, stagnant air masses, increased ozone levels and increased damage to not just the elderly, but to children and highly sensitive people.
I mentioned in my brief issues around lead. We still have no comprehensive lead reduction strategy in Canada. There is a draft strategy, dated 2002, on Health Canada's website, but it has not been finalized. We do need one. Clearly, we understand the impact that lead has, particularly on children, and I believe others will bring forth issues related to lead.
We have put the story on mercury together in a primer. You can read this and get the full story. It is readable, but it does not try to hide the scientific side of it. From the document, you will realize that there are many sources of mercury. Canada, that is, the provinces and the federal government, may tell you that we have done a good job on mercury and reduced emissions by 80-odd per cent over the past decade. We have just followed the leadership of other countries in these areas. We have not led at all, and we have lagged behind on key areas.
Pollution Probe did a study last year on recycling mercury from compact fluorescents and other mercury-containing lamps. This was based on surveys of municipalities, recyclers, producers and so on. The bottom line is that in the EU, the target is 80 per cent recycling of mercury from these lamps by 2006, this year. Several countries have already reached that goal and others are approaching it rapidly. The United States has a target of 50 per cent by 2006 or 2007. They are now at about 25 per cent and moving up fast, using a voluntary approach with a lot of resources behind it, and they will reset the target to 80 per cent by 2009.
In Canada, as best as we could estimate, we are recycling 7 per cent today and there is no plan and no target. There is a lot of interest in incineration of municipal waste in some quarters, but if people are stuffing mercury-containing lamps into municipal waste, we would be blowing mercury back into the atmosphere. As we push more and more energy-saving lights onto the market — which is a good thing from an energy point of view and Pollution Probe supports that — we could also be blowing a lot more mercury back into the atmosphere. To even move forward on some of the other technologies, if that is what governments decide to do despite some strong opposition from environmental quarters, we have a weakness that does not exist to the same extent in Europe, because mercury is a serious substance and we have to get on with controlling it.
Recycling and reusing mercury is one thing, but producing it for new uses is a non-starter. If we do not need it, we should not produce it at all. It is an element. It cannot be transformed, except in a nuclear reactor, into something else, which would probably be worse. We have to get to the sources of mercury and ban non-essential uses, like mercury thermometers, for which there are clearly cost-effective alternatives. Many states in the United States are now banning mercury thermometers, and we have legal authorities to do so at the federal, provincial and municipal levels in Canada, according to a legal analysis that I had done by Dr. Dianne Saxe. We have the authority to do it; we do not have the interest or the will. There are cost-effective alternatives. No one will be harmed. Of course, Pollution Probe is concerned that if we do not do it, cheap thermometers from south of the border will be dumped here and we will have a worse problem.
These types of issues are what I consider performance gaps. Mercury has no known good use in the human body, and bad things happen. It could be anything from cancer to endocrine disruption to neurotoxicological problems. It is a global problem. Canada must have a national strategy and work internationally. CEPA is a tool that could help drive this.
We wish to compliment the current Minister of the Environment, Rona Ambrose, on announcing that there will be a pollution prevention plan on mercury switches in cars. Until a couple of years ago, the North American auto manufacturers, particularly, put a gram of mercury in a convenience lighting switch in your trunk. The mercury is contained in a capsule and as it rolled it connected and disconnected the light. This highlights one of the problems I have with the gaps in our legislation. The Hazardous Products Act is not applicable because the mercury does not get out of a metal container, but where does it end up? It ends up in an electric arc furnace, where it could be regulated by CEPA, at probably 100 times the cost of taking it out and not using it in the switch in the first place. There are cost- effective alternatives. Some manufacturers took the mercury out earlier. All manufacturers have now voluntarily done so, but we have millions of cars on the road and tonnes of mercury that could get into the atmosphere simply because the electric arc furnaces will melt the steel and release it.
I do not understand, as a former public servant and now as leader of an organization with a strong mission to protect the public from these substances, why we cannot do these types of things. Everyone else is doing it. These are the kinds of performance gaps that could be challenged. I would encourage you to dig underneath any suggestions that Canada has done a good job.
My main conclusion is that we have real data gaps. For example, the categorization work going on under CEPA now is using data that are 20 years old, gathered from 1984 to 1986, on production volumes of chemicals. That is not the case in the United States. Richard Denison looked to be in shock when he said to me, "How can you be dealing with 20-year-old data?'' The work that he has done shows that there are dramatic shifts in the use and distribution of certain chemicals within a few years. We need to update the information and structure a way to collect it on a regular basis. The best practices report will show what happens in other countries, which is often not great either, but is an improvement on where we are at today.
We have old data, largely outdated. We do not have comprehensive bio-monitoring data, so that when reports like "Toxic Nation'' are released, with a very limited sample size, we do not really know what that means, and no one can assure the public that there is enough information out there to show that we are, by and large, healthy, or that in fact we are not and need to move more quickly on certain substances.
We need those kinds of data also. We have definitely fallen behind other nations on issues like mercury, PBDEs and so on.
I ask you to consider looking in depth at a few of these issues and reaching your own conclusions. We are presenting our perspective on this, but I think there are some clear areas where we have fallen behind. I would hope it will not be a cursory review of CEPA, because there is an opportunity to nail these issues and to make some dramatic gains from this review process.
Thank you for the opportunity to speak. I look forward to questions.
The Chairman: Thank you, Mr. Ogilvie. Again, you have referred to several publications, and I would be grateful if you would let us have them. We have seen many of them, but it would be helpful to have them.
Mr. Ogilvie: I would be pleased to provide copies for every member.
The Chairman: I would be grateful. We heard from Dr. Khatter of PollutionWatch. I know that all comparisons are odious, but he said that in the Great Lakes basin, on a facility-by-facility basis, Canadian facilities are worse in terms of what they are putting into the air by 93 per cent, on average, than their American counterparts. Did that report come from you?
Mr. Ogilvie: I believe that was the PollutionWatch report. That was done by Environmental Defence, so it is not a Pollution Probe report.
The Chairman: Thank you very much. We will follow that up as well.
Senator Spivak: That was an extremely comprehensive, depressing report.
What do you think of the introduction of a clean air act versus using CEPA? Are there any dangers that CEPA may just fall by the wayside? To save time, I will ask all my questions.
The second one concerns mandatory regulations versus voluntary programs. I am looking at my own province, where nothing is being done. Surely, there must be a measure within CEPA to use mandatory regulations and tell them it must be done.
I recall the issue of pulp mills and fish back in the 1980s. The government of that time said to the pulp mills, "That is it,'' and it was done. It cost billions of dollars, but somehow they survived and are still profitable.
Those are my two questions.
The Chairman: Addressed to whom?
Ms. Tilman: I can address a couple of them and maybe my colleagues can pitch in.
I would like to start with the mandatory versus the voluntary aspect. I think that we have really lagged behind as a country in bringing in regulatory measures, and we do have the powers under CEPA to do that.
The voluntary part comes once you have reached a certain level. As you have noted, when the regulation is introduced, there is a performance target that is met, provided that there is enforcement of that regulation — and that is a concern — and that the regulation is meaningful.
I would say that we have that capability under CEPA, but it has not been exercised. An example is those equivalency agreements, which were not enforceable.
Ms. Broten: I would like to speak to that as well. An example is the issue of perchlorethylene from dry cleaning, which was under a voluntary guideline, code-of-practice type of arrangement for at least a decade. Eventually, Environment Canada said "We will use voluntary measures to get all the good guys to change and control their chemicals.'' After a decade of this, they finally passed a regulation to get the bad guys.
Why not pass the regulation in the first place? It would save all of that dithering around on making the investment or not, because some people will and some will not. A regulation gives you a level playing field. As you know, it works fabulously with pulp and paper.
Mr. Ogilvie: If I can add to that, this is an area that I studied for quite a few years. In fact, we have a voluntary initiatives resource centre on Pollution Probe's website. We have learned that there are terms and conditions under which voluntary initiatives can be effective; but in the absence of these, they can be very ineffective.
The argument for voluntary action is that it gets the leaders moving to show that things can be done and then to bring up the field. The problem with that is we never reward the leaders. We simply let the leaders lead, and quite often, no one brings the followers along anyway. I think there is a fundamental problem there that must be grappled with. There is a good argument for differentiation, but you have to provide sufficient incentives for leaders.
Many of the leaders in industry will lead anyway for their own business reasons or because they care. However, I think that we need careful architecture around voluntary initiatives.
There is federal policy in this area. There is a federal environmental performance agreement policy framework. There are programs in Ontario and Alberta. Ontario has the Environmental Leaders Program and Alberta has EnviroVista. The uptake in these programs is far less than it should be. There are achievements when there is a good uptake, but it is less than it should be, partly because industry does not perceive the value of entering into these agreements.
Again, quite often, if you toughen up the criteria to get into these agreements, industry does not participate because they say it is too onerous. Then you end up back where you started, and saying maybe we should just regulate it. I think there is room to do good work in this area, but the history of voluntary agreements has not been good.
We have a lot of resources on our website for anyone who wants to dig into the issue, showing where they have and have not worked, and some retrospective studies showing why some of the agreements did not work well.
Senator Spivak: What about a clean air act?
Ms. Tilman: That is a hot topic. Again, I am expressing my opinions. CEPA is an amalgamation of a number of acts, and air issues were included. That capability exists within CEPA.
If we uncouple those elements from CEPA and bring in a new act, we do not know if there would be voluntary or other measures. Acts do not come about instantly; they take time. We have something in place that we are trying to improve. I would be concerned if we were to uncouple this and not know where we are going.
At this point, I will exercise the precautionary principle and say I am not sure if this would be good or bad because I have not seen anything on it. If it just involves some voluntary agreements or voluntary reductions, it will not be adequate. We are not providing a service to human health and the environment. I think that is where we are losing out.
Ms. Broten: Even if a new act is effective and well crafted, it would take years for the bureaucracy to disassemble what they have taken years to build under CEPA. It takes bureaucracies a long time to get all their committees and everything else lined up. You are probably looking at three or four years before it is even on the road.
The Chairman: Are we spinning our wheels looking at CEPA, in light of the fact that parts of it may be obviated by a new act?
Ms. Broten: Absolutely not. There are many different aspects of CEPA, not just clean air. There are all the other toxics and all kinds of environmental management issues.
The Chairman: With respect to clean air, ought we to simply say, we will not look at those aspects of CEPA because there might be something happening?
Ms. Broten: Maybe you should make a recommendation.
Ms. Tilman: You cannot separate them out. If you start looking at sources, you find out it is not just the air. There are many other sources, such as the ones we mentioned, the smelters. There has been a fixation on air issues, and some of the others have been forgotten. There used to be more work done on water, for example.
It is so important from a public perspective to have a holistic act that looks at all media and at the health and environmental balance.
Mr. Ogilvie: Can I respond to that briefly?
Senator Spivak: Do you think that the introduction of a clean air act is really beside the point, because authorities or governments should be looking at enforcement of what we have? If we introduce another act, it is another piece of legislation that may or may not be effective. These two parallel processes — a review of CEPA and a new act — seem to be in conflict.
The other question I have is about the word "toxic.'' We have had representations from the consumers association that we should remove the word "toxic'' from CEPA. I have read a paper about the courts' view on this in Quebec, in the Hydro case. I would like to know what you think about that, too.
Mr. Ogilvie: I will make a quick comment.
When this question of taking the word "toxic'' out of CEPA came up, it seemed to come out of the blue and surprised a lot of us. Pollution Probe signed on with a number of other environmental groups to challenge that, in part because there had been no proper discussion. Pollution Probe had not been engaged in any discussion of that, and suddenly, it was practically announced that the word "toxic'' would be taken out. Our first response was to challenge that.
Pollution Probe's second response was to ask a lawyer for a legal opinion so we could be better informed on what the consequences might be. This document says "privileged and confidential,'' but that is because Pollution Probe was the client. However, I will leave a copy with you. The lawyer was worried that removing the word "toxic'' from CEPA could interfere with the regulatory cornerstone or foundation of the act by undermining the jurisdictional basis for arguing that it is valid federal legislation, supported by the criminal law power of the Constitution Act.
I was careful to point out at the start of my talk that I am not a lawyer. The concern is that the federal government is regulating toxics because it is narrowing down the things that are really important. The counter-argument raised by government officials — and I did ask for their legal opinion, which I could not officially get because it is privileged — is that it does not really matter, as long as we describe the characteristics of the substances involved. We can call them schedule X substances and that is fine. The lawyer who did this opinion did not think it was necessary to the case. We have never had a satisfactory resolution of the different legal views on this.
To take the word "toxic'' out without a proper debate about its potential meaning — that is, a public debate — would be a mistake. We could end up solving a problem that the chemical producers, and others, feel they have. I am not sure I have seen a lot of evidence, other than anecdotally, but we may create a bigger problem and complicate the regulation of toxics by the federal government.
Ms. Tilman: I wish to add some comments.
I was on the advisory committee for the CEPA review, which is where this arose, in a meeting. Things were happening fast there, with them suddenly saying, "Let's take out the word "toxic'' and replace it with 'substances of concern.'" There are a couple issues. First, our organization, along with others and those who sat on that committee, signed the same letter as Pollution Probe, opposing this. There is an issue with the perception. If something is toxic, it is toxic. The problem is that for a couple of substances that were declared toxic under CEPA, and I will use this one example of road salt, it is a matter of the quantity. Many things are toxic in large quantities. For a substance like mercury, there is no threshold of safety in terms of the quantity. The question is what substances are you looking at under CEPA? Are you looking at the appropriate set of substances in terms of the declaration of toxicity? I think it would be a mistake to remove the word "toxic.'' We must ensure that the work being done on the assessment of substances is clear. That is, once substances are declared toxic, they must have satisfied criteria which are both clear and precautionary that those substances are toxic.
I have listened to the arguments from the groups who said that they are against the use of the word, but you should call it what it is. A term like "substances of concern'' does not carry the same weight. The public would be quite concerned about that too.
The Chairman: It is typically Canadian, is it not? We use euphemisms?
Ms. Tilman: We are polite.
The Chairman: I must admonish members that we must be out of here by 10 o'clock because we are to be succeeded by another committee.
Senator Spivak: Do you think that the opinions of the lawyers are more important than the opinion of the judge who said specifically that the word "toxic'' is the key to the implementation of CEPA?
The Chairman: Senator Spivak is referring to the Supreme Court decision in respect of Power Corp. which was five to four.
Senator Spivak: Yes.
Ms. Tilman: I am not a lawyer, so I do not know whose opinion I would bet on here. However, from what I have seen, I think we would create a serious problem by diminishing what is really happening and changing the word. Being toxic has implications. However, everything is a "substance of concern.''
Senator Angus: Good morning, all of you, and thank you so much for coming here.
You have been extremely helpful, because this is what these preliminary hearings are about. You are giving us some signposts and telling us how to proceed with this enormous challenge that has been put before us.
Maybe the challenge is not as enormous as it sounds when you use words like "Please do a comprehensive review of CEPA.'' Some of your evidence evoked a question from the chairman vis-à-vis a potential clean air act, and whether or not we are spinning our wheels.
What I am hearing — and I would appreciate you either confirming or denying this impression — first, is that CEPA is good because it contains a review provision. We are being told it is not accomplishing its objectives as originally spelled out. We are already at first base: We know that this massive statute, with all of the attendant bureaucracy and expense, is not working.
Second, I think the main point that is coming not only from you, but from other people who have identified for us the existence of the performance gap and how it is increasing, is that CEPA as a piece of legislation — the actual legal provisions — is okay.
It is just not working. I would like you confirm if that is true. We are not here to say that we will change Part 3, remove the definition of "toxic,'' forget about the performance and some of these good principles that are enshrined in the bill. Why is it not working? What is the problem?
If there is a problem, I want a solution to it. The solution is not for us to spend six months doing a comprehensive review of legal provisions that are already fine. What is the real problem, and how do we fix it?
Ms. Tilman: You are right. If you were to tear the bill apart, I do not think that would be helpful.
Senator Angus: That would be spinning the wheels.
Ms. Tilman: Timelines, and, in some cases, enforcement are needed. Why is the act not being enforced? Why are the timelines not more stringent? Where is the action? I would like to see action. I would like to see results. That is why there is this discussion of a clean air act. We are not seeing results. Why is that? If these measures are good, why are they not working? Where is the budget for enforcement?
Environment Canada commissioned a report on the effectiveness of CEPA — I think it was Environment and Health — and you may want to get access to that. That was a consultant's report on CEPA itself, and I can direct you to that, if you like.
The Chairman: We have that report.
Ms. Tilman: It is not a full report, and I do not think it is harsh enough in many ways. Where is the will? We have seen a lack of will, and a bureaucratic nightmare, in some cases. It will be difficult. As for what we mean by "comprehensive,'' let's look at pollution prevention. That is a cornerstone of CEPA. Where has that been applied? Is it working? I do not think it is working well at all.
What is meant by "prevention?'' Where could that be strengthened? I would like to use the words "strengthened,'' "improved'' and "enforced'' to bring in measures that are factors to consider. Establishing non-enforceable standards by 2015 is not pollution prevention. I would like that aspect to be looked at to see what could be done.
I also mentioned equivalency agreements. CEPA states that you can use them. It does not mean you must use them. Therefore, CEPA is not using the powers that it has, and that is the issue. The use of harmonized, lowest-common- denominator agreements has given us nothing.
Mr. Ogilvie talked about mercury. How many years has that taken? We are so far behind the United States in bringing in many of these regulatory measures. You can look at that aspect.
Instead of pulling the legislation apart, if you look within those channels, you might find some hope of focusing your work and still being comprehensive in your approach.
Ms. Broten: It is partly the Canadian habit of always seeking consensus, and change is always difficult. If you were to say "regulate'' or "control'' or "voluntarily stop'' using a toxic substance, it means people have to change. Businesses have to change; everything changes. That is difficult for people, and your federal bureaucracy is directed to seek consensus on everything, for example, the press releases. It is quite pathetic and very Canadian.
Unfortunately, we are in a complicated world chemically. We need the federal government to do its job.
Mr. Ogilvie: There are several problems. One is we have not gathered the data, that is, up-to-date information.
Senator Angus: Who does "we'' mean?
Mr. Ogilvie: "We'' means the federal government and the provinces.
Senator Angus: Is there a failing among the civil servants who are supposed to operate CEPA, for example?
Mr. Ogilvie: We do not have up-to-date information. There are surveys going on now because of the categorization process.
The Chairman: Tell us why that is so. Who is supposed to get that information, and did not?
Senator Kenny: We want names.
Ms. Tilman: If you want specifics, there is the National Pollutant Release Inventory under CEPA. It is so important for the public to know what is going on, and that is one of our forms of data.
A number of clauses have been restrictive, including the one on confidentiality of information. There is no requirement for facilities to measure the data they report. They can use whatever is handy.
We had a meeting on this recently with Environment Canada. They estimate numbers, but what is reported is quite different, sometimes by magnitudes. They are not getting the information they need from industry. It is called process level information. The U.S. Environmental Protection Agency gets that information. They say they do not have a problem getting it. We cannot get it because it is not embedded in the National Pollutant Release Inventory. I am not a lawyer. I am not sure whether that is the reason or it is because it has not been sought or supported by the bureaucracy.
There is no reason for us not have that kind of comparable information, and the U.S. said they have no problem with confidentiality. This kind of database is open and public.
There are things we can do with our inventory. We can consider how to improve the information-gathering mechanism so that information is up to date. Mr. Ogilvie has talked about data being too old. We have mentioned confidentiality as a barrier to obtaining information. What can be done to accelerate that process and ensure that the government can do some level of checking? The government should be able to do inspections and verification of data. That is not being implemented.
That is what we say. Some of the necessary powers may be there. Why are they not using them? The inventory, which I strongly support, is one of the best programs under CEPA. We are scared that we may be losing some of the veracity in that program because they are now saying that the numbers they have do not make sense, and they cannot do their air-quality modelling as required.
That is a specific and data-related issue that you need to look at.
Mr. Ogilvie: We also need resources for bio-monitoring. That tells us what is getting into human bodies. It is difficult to trace the source.
Senator Angus: Mr. Ogilvie, I feel that the document from Ms. Tilman and Ms. Broten is excellent. You have heard their candid comments. I am assuming that you agree with everything they said. Is that fair?
Mr. Ogilvie: I did not write their document, but yes.
Senator Angus: We are not at odds here.
Mr. Ogilvie: I may have a different perspective on some aspects, but the answer is yes. I am in fundamental agreement.
Senator Angus: The document has many good points. On the political side, you are saying that Canada does not have the political will to get it right. Yet we have had minister after minister after minister of the environment making these pious statements: "This is the number one priority, blah, blah, blah.''
Where is it going wrong? Good people from Environment Canada come here to monitor some of our hearings. We are sensitive about pointing fingers if we do not know what the heck we are doing. If by the statement "There just are not enough resources'' we are really saying that governments over and over again are just paying lip service to this monumental, global problem facing mankind because it is not the big vote-getting issue, we should say it.
I am coming to that view. We are told over and over again by the Commissioner of the Environment that we have the tools in place. There is no reason why Canada cannot be state-of-the-art in dealing with climate change, pollution prevention and control of these toxics, particularly in the biological area, where humans are suffering.
I was getting ready for this meeting this morning hoping somebody would talk about mercury. You mentioned a book, and I can hardly wait to get my hands on it. A member of this committee lives in Rankin Inlet in the Arctic. We are hearing that mercury coming from somewhere around here is literally stunting the growth of, and perhaps permanently impairing, a part of our civilization. Mother's milk is compromised. Animals that are part of the socio- economic food chain are full of all kinds of toxics, and they are affecting the people who eat them. Now they have to send samples down here, and by the time the samples come back they are all starving to death. I think this committee could render a great service if we just said, "Okay, we will take on mercury.''
Ms. Tilman: That would be amazing. I was hired by Environment Canada to write some reports from a public perspective, which I will ensure the committee has. I have looked at the health impacts of it. My background is suitable for that. I have been to all kinds of conferences as part of the United Nations Global Mercury Assessment. I would like to get back to the real issue, the crux of the matter.
Senator Angus: The why?
Ms. Tilman: Yes. I think the bureaucrats are well-intentioned, to a great degree, so I am not faulting them.
Senator Angus: Some good, talented people have been hired.
Ms. Tilman: That is right. I hate to say this, but I would think that there would be frustration there. The capacity is limited. It is resource driven. Do they have the resources to do their job? Is the will there? That needs to be looked at.
Mercury is a particular case, but there are others. In terms of the smelters, when a facility in Northern Manitoba is emitting 1,400 or 1,500 kilograms a year, the biggest source of air emissions in North America, that is a shame and a disgrace. It is old technology. Why are we doing that?
I can tell you what is happening. I know about this, because I have been involved. Manitoba says, "It is jobs. We do not want to do anything. We do not want to shut this down. There is a job issue. We have our air-borne limits, and they are meeting them.'' Well, those limits are no good. Obviously, they are below the World Health Organization standards for sulphur dioxide. You cannot have this going on in Canada in the 21st century.
Ms. Broten referred to the provinces getting together with the federal government — no, yes, no, yes — and who knows what goes on behind the doors. I have been to all the different ministries that I could over the smelter issue. It is difficult for somebody like me to get in. It is not difficult for the companies. I can tell you that. They rule the roost when it comes to these issues. It is jobs.
There are divisions within the Government of Canada. The House is broken in places and needs repairing. The commissioner mentioned that. There are differences of opinion among NRCan, Environment Canada and Health Canada. I am being frank. I have seen these fights right at the table.
Senator Angus: This is confession time.
Ms. Tilman: Yes, it is. It is absolution.
Senator Angus: We are here to help. We are from the Senate.
Ms. Tilman: In fact, this is detrimental to what is going on. Nobody is looking at the big picture.
The environment and the health issues should be the focus from which the other activities radiate, and that is not happening. It is the other way around. The pressures from other government departments are pressuring Environment Canada. Have a look at the budgets for Environment Canada. Have they grown? Are they able to hire more enforcers? Do they have the people in place? I do not think they do. Have a look at that.
Senator Angus: Surprisingly enough, there are other tasks that this committee is being asked to undertake, so we are not actually looking for things to do, but you suggested one. One of the great inhibiters of action is the federal- provincial conflict and concurrent jurisdiction. That is a nightmare on its own, and it is in almost every domain in Canada that we look at.
Suppose, hypothetically, we published a report entitled CEPA, Decent Legislation not Being Effectively Utilized or Implemented: A Case Study, Mercury. Suppose we focused our resources on mercury for three months, how it has gone wrong and how they have not fixed it. At the end, in our last paragraph, we could say, "By the way, this applies in about 100 other areas, and Canada has a performance gap that has taken it from third among the OECD countries to 27 out of 28. It is a damn disgrace and we have to fix it.'' That is what I would like to do. If you think it makes sense, I will talk to the chairman about it.
The Chairman: Thank you.
Mr. Ogilvie: Can I add something here, since you are so interested in mercury? On January 9 of this year, I sent a letter to all the environment and health ministers calling for a national mercury strategy. I sent them the fluorescent lamps report and the legal analysis on thermometers. On April 10, I received a reply from the Council of Ministers of the Environment telling me what a great job we had done. A colleague who is now at the Ivey Foundation and used to run a mercury program was at one of the round tables on the precaution principle held by the House committee, and he used mercury as an example of why we are so far behind. I would love to table all three of these because of your interest, just to show the interplay among these issues
I want to make one other comment. I may have a different point of view than some people. We have to be careful not to start demonizing, but instead set up a real dialogue on these issues, and I mean with industry, the chemical industry, and others. We have to get people to the table and start agreeing on some solutions, but there has to be that political leadership pushing it along. I think we can start working together. I would not want to see this process ending up driving us all further apart, because there are some serious issues to solve that are non-environmental, but are economic and social, et cetera. We need leadership. We need to catch up, and that might require some resolute political action.
At the same time, we need to ensure that we set the base for information exchanges and dialogue, because a lot of the solutions we will find on the industrial side will be worked out within the companies themselves. I say that because back in the 1960s and 1970s, when the modern NGO environmental movement was being built, what we needed then was regulations. We needed a regulatory infrastructure. We needed environment departments. We were treating the ends of pipes. We were treating what came out in the effluent and, somewhat, into the air. In the 1980s, we started to talk about pollution prevention, and that moved the gains into the plant — reuse, recycle, new products — rather than letting it out the pipe and putting an expensive treatment device at the end and then throwing the waste somewhere. Into the 1990s and 2000s, we are moving upstream into the design of the plants and the products. That is why it is important.
We have not talked much today about why we have this difficulty regulating products. CEPA does not do it. The Hazardous Products Act is completely ineffective. If we are to be modern about where the real reductions will come from on some of these toxics and make some environmental gains, we will actually be moving up to the product level. We need to have a discussion about that, and that is not in CEPA. We either have to have it in CEPA, or we need a way of strengthening our capacity to deal with products like mercury in switches. CEPA does not deal with those until they get to the release point. That is way down the chain and very cost ineffective compared with some of the upstream solutions.
The point I am trying to make is that when you are looking at designing products and industrial plants and so on, it is difficult for environment ministries to regulate that.
You can regulate what comes out the pipe, but who will do the thinking about designing the product in the first place?
That is where Europe is heading: environmental aspects of product standards and integrated product policies. This is where policy is shifting, and CEPA has to shift with it.
We need to catch up in Canada to what is going on in the rest of the world and then we need to leap ahead on that. That will have to be done in consultation with industry too. I do not want to lose that point in the CEPA review.
The Chairman: I do not want to prolong this, but you are talking about REACH, and you referred to it earlier. In fact, the European model is not in legislation yet and no one has bought into it yet. We must understand that is still in process and not operative yet.
Ms. Tilman: I think it depends on the approach that the senator takes if he is looking at something like mercury, because I found, when I did a lot of work on mercury, it is such a fundamental issue that it brings all the other issues into play. You have precaution, prevention, and all these things that are important to do. I found that if you can do something on that front, you get a lot of other benefits as well.
I would be happy to present on this from an overall perspective. I have written a lot on health and environment protection; not just coal plants. There is documentation out there. However, you must look at the larger picture too.
One of the big problems is that we are still trading mercury in the world. It is a commodity. We are still making it available. What are we doing selling and recycling mercury so it can be used in more products? What are we doing with legacy sites? We have serious legacy sites in Canada. We know about the mercury in the Arctic. Did you know that in Northeast British Columbia, there is an area of lakes contaminated by a mercury mine, the only mercury mine that existed in Canada? We still have mercury contamination in Northwest Ontario. It is an issue, and you must be careful about how you do this. It must be done thoughtfully, looking at the big picture. You need to bring in the issues that are associated with mercury.
Ms. Broten: I also believe that it is an issue of a culture shift in our entire society. We do not take these issues very seriously because we have such a big and beautiful country. We always assume that it is just a small amount of waste, and we are finally realizing it is all getting into our own bodies.
We need a culture shift whereby it is taken seriously everywhere, from the small community to the cabinet table. I do not think that is happening. One of the things that will be required is something that my friends in the labour movement talk about, some sense of a just transition, so that when products change, the workers and the companies that made the old product are not just thrown aside; the same people are moved into new, clean production.
Senator Segal: It strikes me that the issue our guests have not addressed is the elephant under the table, and that is statutory deficit. We have a series of laws in this country that are not enforced. We have a series of statutes that talk about what departments should be doing but have not done for a long time. We do not talk about it because it is too frightening a proposition. The notion that we would then engage in a detailed review of environmental protection legislation, when we know it is not now being enforced, strikes me as one of those prospects one should engage in if the lifespan of the average male reaches 178. As the lifespan is not likely to move much beyond 81, we have to ask ourselves about the use of time, and whether this particular use of time, from the point of view of making real changes, is constructive.
Ms. Tilman made the point that despite the best intentions of the public servants in Environment Canada, there are conflicting interests. That is because unemployment kills people. Unemployment destroys families. Unemployment is bad for people's health in every measurable way and in the same way as inappropriate pollutants are bad for people's health. That the notion there should be a debate within government about this troubles you, strikes me as profoundly insensitive to the broad balance of society. We have a duty, it strikes me, in government to try to find the right balance. Take the precautionary principle — I think it is a superb principle. I am in favour of it as a broad measure of appropriate action, but we know that if the precautionary principle were in place, many things we depend on now — aspirin, air travel, heart surgery, jogging or durum wheat — would never have been permitted. The risks would have been deemed to be far too high on that precautionary spectrum.
I am asking you to reflect on the issue of balance and how that is best achieved. As an example, let us imagine all legislation on a spectrum that is coercive on one end and permissive on the other. The RRSP is permissive. You do not have to have one. Those kinds of permissive processes go forward with far less resistance and far more uptake. When you get to coercive propositions, which may in fact be necessary — regulations, rules, sanctions, penalties — that produces, first of all, the right of appeal for individuals who are named under those provisions. This adds to the timeline problem that we have been discussing this morning. I wonder whether or not this committee, whether it is with mercury as a specific focus, might best serve the public interest by talking about the fundamental approach to ensuring and facilitating a clear and broader environmental awareness that actually achieves change on the ground.
We can draft regulations and public servants can work in good faith, but if you are telling me that the data set overall suggests that the legislative, regulated approach can, in and of itself, achieve more progress than some other approaches that might be suggested, I would like to know what the database for that is.
Let's take Inco. I worked in the Ontario government when Inco was finally forced to make the changes that they did in Sudbury. It was not because of compliance orders or agreements, but because Wall Street had a fundamental question: "What is your environmental liability and what are you doing about it? Until you give us the answer, we will discount your stock.'' Inco turned on a dime once those questions were asked.
I am suggesting there are other kinds of incentives and instruments that we can discuss at this committee that will achieve the goals that we are all trying to achieve, rather than put all our eggs into the regulatory and statutory basket, because we know, despite the best efforts of those who drafted the legislation and those who try to enforce it, that that is a hill that is often too high to climb and we do not actually get the results we truly want to achieve.
There is a question mark at the end of that.
Ms. Tilman: I have met with workers from all the smelters in Canada and the steel mills as well. I am very sensitive to the labour issue. I come from a labouring family, so I understand the issue completely.
I have spoken to many workers' representatives who have seen health effects in their communities. We understand that we are asking about some important matters here, some lifestyle choices.
I have to ask a more fundamental question: Who are we to allow those kinds of jobs that put communities' health and children's health at risk? What are we doing now? Do we have to get to the stage where we support jobs for the sake of jobs, and do not consider what is happening to the health of our children, let alone to our own health?
There are areas in Sarnia where the health effects are phenomenonal — Chemical Valley. There are health effects in Flin Flon. The Inco plant in Thompson is another case; it borders on Saskatchewan, as you know, and there are virtually no controls on that facility, nor is there any will to turn on a dime there. I do not know Wall Street as well, but I know it is not having an effect there.
I do not think it is fair that people's livelihood, which includes health, is at risk. It is no good if you die of cancer too young to support your family. I have experienced that personally and it does not work that way. We have to find better ways. I do not want to pit employment and the environment against each other. They have to work together.
Ms. Broten mentioned that the labour movement has been pushing for a just transition. We have joined with the steelworkers to push the need for a just transition for these communities. This must happen. We cannot keep outmoded facilities in place and close our eyes. It is not necessary.
You know what the metals markets are like. The money is there. I cannot force the companies to do this, but I think that the argument of one versus the other does not work. I agree that we have a regulatory backlog or whatever it is. That is why you need to ask yourselves what you can do as a committee to be effective, as opposed to just producing another paper. There are a lot of papers out there. What can you do to be effective?
I think hearing from people is important, hearing the on-the-ground stories, which is what we have advocated. You try to implement a law. If the law does not work in some areas, why is that?
We have given you a few examples to chew on, which is all we can do at this point. We can say, "Chew on them. We will help you chew in any way we can.'' However, we are very cognizant of the fact that when you talk about any of these substances, there are social, environmental and economic aspects rolled into it.
Yes, the awareness is out there. We do not want to pit ourselves against each other in trying to find the common ground, which is the benefit to our health. What is our priority if not to protect the lives of our children? What are our priorities? My priority is not the bottom line of a company. My priority is to get our human health and environmental focus out there.
Ms. Broten: I have two short things to say. One is that old, polluting facilities are usually subsidized, non- competitive facilities. Second, without laws, there is no liability.
Mr. Ogilvie: The question of balance has preoccupied my time at Pollution Probe, coming from a governmental background, having written cabinet documents and gone through ministerial consultations, et cetera. At the end of the day, someone must take a decision.
I do believe we need a full understanding of the consequences of what we are doing, but we have too often not carried through on the environmental component, which is an important one. You have to read through the child health and the environment primer to realize what is at stake if we do not get it right. There are too many examples of real damage.
The precautionary principle does not necessarily prevent good things from happening. It is a question of how we implement it. I did a report in 2001 called "Applying the Precautionary Principle to Standard Setting for Toxic Substances in Canada.'' I will leave you a copy of that as well.
Part of our approach at Pollution Probe is to consult with industry, governments and others, to reflect what we hear from everyone and then to say what we think. Our bias is that we want a clean environment, so we will lead in that direction, but not until we have heard from everyone. It is a question of process. I think the government does have to shift into a much stronger and more resolute environmental mode or we will be eaten alive by problems that we have not addressed.
The precautionary principle, when done right, does not have to take us into a go-nowhere scenario. There is a group called the New Directions Group, in which Pollution Probe participates with industry. We set it up to have a dialogue around a table like this, primarily between industry and environmentalists, on issues on which we fundamentally disagree. We did have a discussion on the precautionary principle and we do have a report on that.
There is no need for a consensus; we just report on what we came up with. However, if we do achieve a consensus, we sign on to a signature document. We have had debates on the precautionary principle. We have had a discussion on biotechnology. We did not get great agreement among us, but we had that discussion with some knowledgeable people on both sides. We have had a number of other debates as well.
We need structures where we can have different types of debates; where this information is fed into political decision-making and into the bureaucracy, where it is digested and where there is a strong element of political will to say "This is the right decision, let us move on.'' The trouble is we have slipped behind. That is the real issue.
I do agree with you to some extent. Let us not talk for ever in detailed reviews. There are some clear problems that could be put forward to drive that discussion, and some things that could be done quickly to fix CEPA or its implementation. The faster we do that, the faster we get action at the other end. I think that is really important. It is a good point.
Senator Tardif: In our discussion, I think that you have presented clearly many of the problems, and you have hit on the crux of many of them. I would like to come back to something that you have identified, which is probably related to the enforcement problem, and that is the question of data. You have talked about the problem with data — the fact that there are no accurate data, that the data are not reliable, that there is a data gap, that there are old and poor data. What is the problem in getting accurate, reliable and good data, and what can we do about it?
The second point, related to that, is this being used as an excuse to not enforce or proceed with some things? If we do not have these data, or we have some data, why are we then not proceeding with the precautionary principle? Is it not contradictory, the fact that we have a precautionary principle that is part of the act, which says that we should be careful about things, and that we are using the fact that we do not have all of the data, or only poor data, to say we are not doing anything? If you could help me out, I would appreciate that.
Ms. Tilman: I think your last comment is important. We cannot expect — because that is part of the precautionary principle — to get all the data before we make decisions. Scientifically, that is impossible; we will never have that.
I look at it this way, and I have to use the inventories, which are my access to information as a member of the public. The purpose of these inventories from a public perspective is they give an idea of what is going on for a limited number of pollutants. Therefore, if those numbers are reasonably accurate, we can look at the trends. Even if the data are limited, we can see whether there are trends. It would be wonderful if we could do away with inventories, but we have them out there. That is the need for reliable data.
I agree that when we take action we do not need all the data under the assessment process for toxic substances. The point is that we should err on the side of caution. However, when we do have data, let us ensure that there is confidence in the data that Canada produces. Fixes could be made to that inventory that would require measurement and inspection and that would give more resources for inspecting facilities where there are serious quality assurance issues. There should be mechanisms available for when facilities report and bureaucrats deem that the information simply does not make sense. There are some mechanisms, but they are not strong. It would be advisable to look at improving those mechanisms — the checks and balances — to ensure that the data collected are representative. We know that there is no such thing as a complete data set so we should not look for that. However, we should be able to check the trends, so that in five years' time, for example, we could know that emissions of a given set of pollutants have decreased considerably.
The government uses these inventories to check whether some of its measures are working. How would we know whether we have reduced mercury, for example, if we cannot track it down? Inventory is one way of reporting. I agree with you completely that we do not want to be hung up on this, but we do need to make some improvements in the data-gathering exercise. I do not want to throw the baby out with the bathwater, because it is a useful tool that needs a stronger support base.
The Chairman: I want to add a specific aspect to Senator Tardif's question. You told us this morning that the information currently used for assessment and other things in the inventory is 20 years old.
Ms. Tilman: That was Mr. Ogilivie's comment.
The Chairman: Why is it circumscribed at that point?
Ms. Broten: I am involved on that process. When we implemented CEPA 1999, we included a requirement that new chemicals would be assessed on a precautionary basis before they enter Canada. However, there was a Domestic Substances List of all chemicals in use as of, I believe, 1986. As part of the assessment, which was specifically directed by CEPA 1999, Health Canada and Environment Canada did their risk assessments base on the volumes of those chemicals that were used in 1986. It is now 2006.
The Chairman: Was that for the DSL?
Ms. Broten: Yes.
Senator Adams: Mr. Chairman, I will keep my questions short. Mercury travels in water and air. CEPA is developing a future monitoring system for the air in respect of country food eaten by Aboriginals. At times, fish and mammals contain toxins, such as mercury, and when they are eaten by other fish or mammals or birds, those then become toxic. Many people are studying this problem in the North but we do not receive many reports. There are frequent diagnoses of various cancers occurring in small communities located in toxic areas. In the old days, this did not happen. The food came from the south and we ate healthily. Today, it is not the same. Are these cancers caused mostly by the toxins? If you cannot answer that, perhaps Health Canada would be better able to.
Ms. Tilman: Much work has been done by the Inuit Circumpolar Conference countries. They have written a set of readable documents on the health impacts and diet for part 1 and part2. It is frustrating, because it seems that often, some areas tend to be forgotten in the bigger shuffle down south. It is a social justice issue as well as an environmental issue that food in the North is compromised. More attention must be paid to these areas, given that your entire food chain is affected by this.
Mercury, by the way, is often referred to as a "traveller without a passport.'' Many pollutants are long-distance travellers because they volatilize. I am not sure what the answer is, but we must acknowledge the issue and do much more work on it. That issue, and climate change, are interconnected. More bio-monitoring is another area to consider. We need to determine what can be done to ameliorate these issues, and that will take time. It takes little time for the pollution to make its way to the North and much more time to try to resolve the problem.
Mr. Ogilvie: In the letter to the ministers of Environment Canada and Health Canada, of which the committee will receive a copy, we said that we need a national mercury strategy and to support a global strategy. Canada is part of the global discussions, but Canada and the U.S. have argued consistently that we should have voluntary approaches to this. Other nations in Europe are arguing strongly that we need some kind of solid international agreement because so much pollution will come from coal plants, not only in the U.S., but also in China and elsewhere. This is a global problem. We can show leadership in this at no great cost to our economy or anything else, so we should urge a global approach. We need a long-term solution. Traditionally, fish are nutritious and healthful, and so we eat them. On balance, it is best to try to avoid the mercury-laden fish, but the solution in the long run is not just Canadian; it is global. That is the argument we put forth.
Senator Adams: Talking about mercury, we have a great deal of toxic waste in the community because of what goes into the dump. Some environmental people are in the community but there is no help. I talked to some of the technicians and found that some of the mercury is dumped there as well, although it is changing in some communities. Toxins should be separated out from the garbage and put in a toxic waste site. Municipalities do not understand. Communities should be aware of that. Your reports should go to the community people so that they understand toxic waste.
The Chairman: Mr. Ogilvie, do you send the reports to northern communities when you have that opportunity?
Mr. Ogilvie: Yes. Publications like the mercury-in-the-environment primer, we send out quite broadly. We sent it to all of the First Nations when we put this out. When we first release a primer, we put it out broadly, and then it is made available in libraries. It is on our website for free, if people want to download it, and it is available for a price. We give it for free to NGOs or others who really need it and want to make good use of it. The bottom line is that it is available. This is a nice piece of work that was done for us and we had a lot of input. It was reviewed extensively by industry. We had some excellent comments from Noranda, Ontario Power Generation, and others. We try to be careful, and I stand personally responsible for miscommunicating facts or unbalanced documentation. We do not get into solutions and advocacy, because that is more controversial, but we try to get the facts out to people. We did a sidebar on the healthy fish dilemma. We tell people there are good reasons to eat fish. Be careful what you eat, but we need to get to the sources of these substances and control the levels in the environment.
These documents are sent out quite broadly, and about every three to five years we update them. We have covered many issues like that because there is a fundamental problem of core education and of understanding what substances like mercury are all about. People do not know, and it is good that they get this. We should have more of it.
The Chairman: We understood today that Senator Angus is probably formulating a suggestion that we should go forward with our study using mercury as the poster child, and say, as you said, Ms. Tilman, "We must talk about the broader picture, but here is a perfect example.'' Is it the most egregious example? Is it a fair example? Is it the best example? Is it the element that is most susceptible to our looking at it and to use as an example? Would you agree with what I think will be Senator Angus's proposal?
Ms. Tilman: If done properly, it could bring in many different uses. It transcends many others because it is emitted from any combustion device, any use of coal and wood, and any use of organic matter, because that is where it comes from. It is buried deep, but it is released. It is also used in medical practice, in dentistry, in vaccines — the list goes on. It is pervasive in terms of use and toxicity, and the most important chemical factor is that it is an element that can be neither created nor destroyed. It has a lot of metaphorical, historical, mythical and dangerous applications. I have often called it the litmus test of how we are doing. It depends on how it is handled. If it is looked at from a very narrow focus, it may not give you the right kind of information. If you then look at how CEPA addresses mercury, where does it come from, it is life cycle management. Is that the appropriate place for it?
Under CEPA, you cannot say that you want to virtually eliminate releases of mercury now because it is a natural element. Is that appropriate? Is it appropriately designated? That is where you could bring in that kind of discussion. Use it, if you like, but widen the focus. Look where it is in CEPA. What is the government doing? Mr. Ogilvie talked about the pollution prevention plan under CEPA for mercury switches. What is that plan? Will it finally work? What are we doing in terms of public education? How many people know there is a gram of mercury in older cars?
There is also the area of public information. You talked about community and core education. Many people do not have access to websites. How do you get this information out? Use that mercury as a tool and bring in the education aspect, as well as those concerns. For example, how do we deliver on this? How does CEPA deliver on this? Does CEPA categorize properly? Are these plans? Are the Canada-wide Standards any good? That is a CEPA equivalency agreement issue. You can do it, if you take it to that level.
Mr. Ogilvie: I would encourage a look at mercury. There are other substances that may cause even greater damage to human health, but mercury is an instructive one to look at. There is lead, but there are many other interesting ones, too.
The Canadian Partnership for Children's Health and Environment, of which Pollution Probe is a member — it is mostly health groups, child care groups and environmental groups — put together this primer. We used our primer expertise to do it at Pollution Probe. We are planning to run a series of cross-Canada workshops on children's health and environment, focusing on toxics. We have the agreement of the Canadian Chemical Producers Association to participate in the dialogue, too. We are pleased they have come forward to say they would participate. We will have health and environment groups and others, and we will try to reach some understanding about what information we need on substances like lead, mercury, flame retardants, PFOS, phthalates, and so on. We will try to identify policy gaps and problems. This will not kick off until September or October and will take six months to finalize. It will not inform the CEPA review, but it is a dialogue we must have in this country. It should be done with everyone at the table, for the reasons Senator Segal mentioned. We must have a plan to move forward and get results, as opposed to ongoing and never-ending discussions.
The Chairman: The removal of lead from gasoline was mandated and accomplished. Despite all the arguments that the sky would fall if we did that, it did not. It was the same for the removal of sulphur pretty well from natural gas delivery. People said, "If you do that, we will go away and there will be no exploration.'' That did not happen. It was successful and resulted in a lot less ruination of our lakes from sulphuric acid. What is the difference between the two? How come those worked and other things do not?
Ms. Tilman: Mercury is a highly volatile substance and it escapes typical traditional controls. It is very difficult to remove. It will transform itself into another form and then into another and migrate. You have to not use it in products in the first place. That is an easy one. You do not need mercury. Mercury was used as a biocide in vaccines because it was a cheap way in the 1930s of killing off things you do not want in vaccines. It does not belong any more because it is no longer needed. There are other ways to do this.
The problem is the combustion devices, where mercury is a content of coal. In Canada, the mercury content in coal varies, depending on where it comes from. In some coal seams in Saskatchewan or New Brunswick, for example, the mercury content is high. Why are we burning that coal? It is the same with sulphur in coal in Cape Breton. Why are we using that, if we intend to use coal? That is a big issue. Why are we burning the worst? That is a reality that we will face in dealing with our energy situation. We do not need to look at the worst. Extracting the mercury is very difficult. There are devices now for capturing it, such as combinations of control mechanisms. However, every time you introduce a control mechanism, another loophole occurs. For example, too much carbon is associated with the mercury; you cannot use it for drywall, which is what it is used for in the States; much of the ash becomes too heavily contaminated with carbon, and so on. That is the trick with mercury. It is not easy, but you do not need it in many of the products. There are ways to minimize its use and release. Capturing mercury is difficult, because what do you do with it all? Are you planning to put it in a landfill? Will it leach out into our water? That is why there is a big question mark there. It can volatilize in a warm room. It is easily transformable.
The Chairman: From time to time, as we make progress and determine in what direction we will go, I expect we will ask you to come back to speak to us again, when we will have more specific questions.
I thank you very much for your helpful testimony today and for taking the time to be here, particularly so early this morning.
The committee adjourned.