[acn-l] Analysis of Canada's New CEPA: Special Report

Gary Gallon, Canadian Institute for Business & Environment (cibe at web.net)
Wed, 08 Apr 1998 10:53:40 -0300

SPECIAL REPORT ON THE NEW CEPA

On March 12, 1998, Environment Minister Christine Stewart, introduced
legislation, Bill C-32, amending the Canadian Environmental Protection Act
(CEPA). The new Bill C-32 is somewhat weaker than the original Bill C-74
tabled
December 1996, that died on the Order Papers at the close of the last
legislative session. Also the new CEPA does not reflect the recommendations
made by the House of Commons Standing Committee on Environment and Sustainable
Development. It's report entitled, It's About Our Health: Toward Pollution
Prevention",released June 15, 1995, provided 141 recommendations to improve
the
Bill. However, few of them were used in the rewrite and introduction of C-32.

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TWO MAIN DIFFERENCES: POLLUTION PREVENTION AND HARMONIZATION

The proposed new CEPA substantially different that current CEPA enacted almost
ten years ago 29th of June, 1989. In short, the new legislation is quite
different in two ways. First, it moves away from a command and control
regulatory approach to a pollution prevention, voluntary environmental
measures
(VEM) approach. Secondly, mechanisms have been put in place to support the
CCME Harmonization Accord signed onto by Environment Canada, which in effect
reduces the federal role in environmental protection within, and between, the
provinces and territories across Canada. The Canadian Institute for Business
and the Environment conducted a preliminary review of the 330 - page Bill
C-32.
We found that it:

o binds both the federal Minister of Environment and the Minister of Health
to agree on certain actions taken under the Act

o requires the Environment Minister to create and consult with a provincial
and territorial advisory committee before taking action

o provides regulation-making powers to support NPRI, voluntary
environmental
measures, and economic instruments

o allows fines under the Act to be paid directly to communities and
environment groups
o allows for the publication of names of polluters out of compliance

The Act encourages greater citizen participation by providing easy access to
environmental information and providing opportunities for public input before
decisions are made. It would also allow citizens to bring civil suits in cases
of significant damage to the environment, if the government fails to enforce
the Act. The Act also allows the government to:

o implement a fast-track approach to evaluating and controlling toxic
substances
o ensure the most harmful substances are phased out, or not released into
the
air and oceans
o improve enforcement of regulations
o improve "whistle-blower" protection for government officials

To obtain a full copy of the Bill C-32, or the press release and summary
access
Environment Canada's Green Lane Website:
<http://www.doe.ca/cepa/index_e.html>http://www.doe.ca/cepa/index_e.html. Or
contact: Glen Allard, Director CEPA, Environment Canada, 351 St-Joseph boul.,
Hull, ph. (819) 994-3408.

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NEW CEPA REQUIRES CONCURRENCE OF MINISTER OF HEALTH
Section 72

Like the previous Act, the new Canadian Environmental Protection Act requires
the concurrence of the federal Minister of Health on decisions made by the
Minister of the Environment. The sharing of power required of the Environment
Minister, will bind the Environment Ministry's hands when she wants to act
quickly on environmental matters. The federal Ministry of Health has been
generally conservative when it comes to preventative actions in the
environment
on matters such as pesticides and industrial chemicals in food. For example,
Section 72 of C-32 states that: "the (Environment) Minister may not exercise
the power under paragraph 71(1)(c) in relation to a substance unless the
Ministers (both Health and Environment) have reason to suspect that the
substance is toxic or capable of becoming toxic.".

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CREATION OF A PROVINCIAL NATIONAL ADVISORY COMMITTEE
Section 6 ( 1)

The Environment Minister is required to create a "National Advisory Committee"
(NAC). The Committee will be composed of up to 18 members one each from the
provinces, up to 6 from new aboriginal governments, and one each from
Environment Canada and Health Canada. The Committee was created to take
"cooperative action in matters affecting the environment and for the
purpose of
avoiding duplication in regulatory activity among governments". The Committee
will "advise the Ministers on regulations proposed to be made and on
coordinated inter- governmental approach to the management of toxics. The
creation of the National Advisory Committee supports the devolution of powers
under the CCME Canada- Wide Accord on Environmental Harmonization signed by
the
federal, provincial (except Quebec) and territorial governments on January 29,
1998. Under the old CEPA, there was a federal-provincial advisory committee,
however, the application and use of the new National Advisory Committee
will be
substantially stronger. The NAC does not have representation from industry,
academia or the environment NGO's.

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DECLARATION OF EQUIVALENT PROVISION
Section 10, Subsection 3)

As with the old CEPA, the new CEPA gives Environment Canada the power to sign
equivalency agreements with the provincial or aboriginal governments. This
will
be used to continue the process of the CCME Harmonization Accord. Once
Environment Canada signs a equivalency agreement, it will have deemed the
other
governments to be carrying out the intent of federal CEPA, and then the
federal
environment law will no longer legally apply in that province. After the
Declaration of Equivalent Provisions is made, subsection 3 states: "the
Governor in Council may, on the recommendation of the (Environment) Minister,
make an order declaring that the provisions of the regulation do not apply in
an area under the jurisdiction of the government." A slight protection is
provided by the fact that the Equivalency Agreements will terminate in five
years after signing. And they can be terminated in three months if either
party
gives notice..

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CREATION OF A NATIONAL "ENVIRONMENTAL REGISTRY"
Sections 12 & 13 (1)

The new CEPA creates national "Environmental Registry". It allows the Minister
to establish a registry for the purpose of facilitating access to
environmental
documents relating to matters under this Act. It will contain notices and
other
documents published or made publicly available by the Minister. The new
federal
registry copies somewhat the Ontario Environmental Rights Commissioners
legislation that provided for the creation of an Environmental Registry in the
early 1990's.

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WHISTLE-BLOWER PROTECTION
Section 16, Subsections 1 through 4)

The new CEPA attempts to protect federal whistle-blowers from legal action
by a
ministry, agency or federal Crown corporation. It does not directly protect
whistle-blowers in the private sector as does the Ontario Environmental
Protection Act.

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ALLOWS PUBLIC TO REQUEST INVESTIGATION AND TAKE LEGAL ACTION
Section 17, Subsection 1, and
Section 22

The new CEPA makes provision for a Canadian resident over 18 yrs. to be
able to
apply to Environment Canada for an investigation of any perceived offence
under
CEPA. The Ministry will acknowledge receipt and must "investigate all matters
that the Minister considers necessary to determine the facts relating to the
alleged offence." Under Section 20, the Minister of the Environment may ask
the Attorney General of Canada to undertake a prosecution based on the
original
public request for an investigation. The right to sue was in the old CEPA,
however, it was limited to those who owned property that was affected.

Under the new CEPA, an individual who has applied for an investigation may
bring an environmental protection action within 2 years (Sect. 23, (1)) if the
minister failed to conduct an investigation and report within a reasonable
time
or if the Minister's response was unreasonable. The action may be brought in
any court against a person who committed an offence under CEPA that (a) was
alleged in the application for the investigation, and caused significant harm
to the environment. However, the court is allowed to dismiss the action
(Sect.
32, para. 2) if economic and social issues prevail, or if the Environment
Ministry has developed "an adequate (voluntary environmental) plan" to correct
the offense.

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SET NATIONAL OBJECTIVES, GUIDELINES AND CODES OF PRACTICES
Section 54, Subsection 1

The new Act requires jointly Environment Canada/Health Canada to issue
environmental quality objectives, guidelines, and codes of practice for
pollution prevention and environmental control for Canada.

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POLLUTION PREVENTION PLAN CAN BE REQUIRED BY ENVIRONMENT CANADA
Section 56, Subsection 1

The federal minister of the Environment may require industry or other
polluters
to prepare and implement pollution prevention plans. The pollution prevention
plans may be required "in respect of a substance or a group of substances
specified on the List of Toxic Substances in Schedule 1" of CEPA. Such plans
will be published in the Canada Gazette.

POLLUTION PREVENTION CLEARING-HOUSE MAY BE CREATED
Section 63, Subsection 1

A National Pollution Prevention Information Clearinghouse may be created "in
order to collect, exchange and distribute information relating to pollution
prevention". Also, under subsection 2, "the Minister may establish a program
to publicly recognize significant achievements in the area of pollution
prevention." This could be considered a support mechanism for voluntary
environmental measures.

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ENVIRONMENT CANADA REQUIRED TO EXCHANGE INFORMATION WITH PROVINCES

Environment Canada under Section 75, (2): "shall cooperate and develop
procedures with jurisdictions, other than the Government of Canada, to
exchange
information respecting substances that are specifically prohibited or
substantially restricted by legislation of those jurisdictions for
environmental or health reasons."

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PROHIBIT THE MANUFACTURING OR IMPORTATION OF TOXIC SUBSTANCES Part V, Section
84 ( 1)

Another excellent part of the legislation, is that the two ministers can ban
the manufacturing or import of toxic substances. Sect. 84 states: "Where the
Ministers (Health and Environment) have assessed any information under Section
83 and they suspect that a substance is toxic or capable of becoming toxic,
the
Minister may, before the expiry of the period for assessing the information"
issue conditions or "prohibit any person from manufacturing or importing the
substance." And alternatively, Section 89 (1) allows the federal government to
make regulations regarding the manufacturing or export of certain potentially
harmful substances such as biotechnology.

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COST RECOVERY, LICENSES, PERMITS AND FEES

The new legislation is peppered with measures to collect money. This
reflecting the federal government's requirement (Program Review) of all
ministries to raise revenues and pay their way. Environment Canada has been
examining hundreds of ways of collecting money. The new Act gives them these
powers. The new Act allows for:

o cost recovery from companies that require action under the Act
o issue Environmental Permits for a fee
o allocate fines to monitoring, community participation and remediation

Monies can be collected for (a) assessment of chemicals, (b) monitoring ocean
dumping, (c) waybill and manifest systems, and (d) other general collection
provisions. There are problems with this section both with industry and with
the NGO community. One of the problems, is that industry has already been
taxed
by the federal government to provide services. Why should industry be taxed
again. Another problem is that there is a tendency to allow polluters to
have a
say on how the money is spent.

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NATIONAL AIR EMISSIONS EQUIPMENT LABELING

The new CEPA will allow the federal government to establish a "National
Emissions Marks" labeling program for vehicles, engines, and related
equipment. This reflects the new "positive" pull type legislation that
encourages and rewards companies for doing well. Rather than being punitive,
the legislation will reward good behavior with the National Emissions Label.
The whole vehicle emission section is new to CEPA, however, they are not
new to
the federal government. They were moved and amended from similar legislation
that was in the Motor Vehicle Safety Act. Environment Canada plans a strong
mobile sources urban air pollution reduction program.

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STRONG ENVIRONMENTAL ENFORCEMENT MEASURES
(Sect. 218, Sect. 225)

The inspection and enforcement provisions of the new CEPA are strong. The new
legislation clearly specifies that inspectors may enter and inspect a
polluter;
can issue a search warrant (Section 218); issue a search warrant (Sect. 219),
seize property, cars, trucks, etc. (Sect. 220), and detain large ships
(Section
225). Environment Canada will be required to "establish a roster of Review
Officers" led by a "Chief Review Officer" (Sect. 243). Section 272 of the Act
allows the courts to provide fines up to $1,000,000 and up to 3 years
imprisonment per offense. The Review Officers are to review adherence to
"Environmental Protection Compliance Orders" (issued under Sect.235).

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PUBLICATION OF COMPANY NAME AND OTHER PENALTIES
Section 291(1)

This legislation was in the old CEPA, and reiterated in the new CEPA. It
states
that where an offender has been convicted of an offence under this Act, in
addition to any other punishment that may be imposed under this Act, the court
may make an order having any or all (amongst others) of the following effects:

o do pollution prevention plan
o environment effects monitoring
o implement environmental management system (ISO14000)
o directing the offender to publish the facts relating to the conviction
o post a financial bond
o compensate the ministry
o perform community service

This part of the Act was not well understood or well used in the past, yet it
can be one of the most effective pieces of legislation for supporting
voluntary
environmental measures (VEM's) in the future.

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COURTS CAN DIRECT FINES TO PAY FOR RESEARCH AND COMMUNITY WORK
Sect. 291 (1) (n & o)

The new CEPA allows the courts to direct payment of fines to research on the
ecological use, impacts, and disposal of toxic substances. The also allow the
judge to direct the offender to pay an amount to environmental, health or
other
groups to assist in their work in the community where the offence was
committed. As well, the judge can direct the offender to pay an amount to an
educational institution for scholarships for students enrolled in
environmental
studies.

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ALTERNATIVE VOLUNTARY MEASURES CAN BE USED (EPAM)
Section 296(1)

This is new in CEPA. When a company is found to committee an environmental
offense, it may not be prosecuted and fined. Instead the polluter may
appeal to
the federal government to undertake an environmental protection alternative
measure (EPAM) under Section 296(1) of the Act. The EPAM measure is an
agreement signed within 180 days of the government determining there was an
infraction of the law. Section 309 of the Act allows Environment Canada to "
make regulations respecting the environmental protection alternative measures
that may be used for the purpose of this Act..." Ironically, this alternative
measure regulation can exempt the company from the CEPA infraction it
committed. It also prescribes the form and manner in which and the period of
the alternative measure, and specify the manner of preparing and filing
reports relating to the administration of and compliance with agreement. This
legislation was modeled on similar legislation implemented by the federal
government for juvenile delinquents under the Young Offenders Act.

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ECONOMIC INSTRUMENTS LIKE CO2 TRADEABLE EMISSION PERMITS
Section 322

This is new in CEPA. The Act allows the Environment Minister to establish
guidelines, programs and other measures for the development and use of
economic
instruments and market- based approaches to further the purposes of this Act,
respecting systems relating to: (a) deposits and refunds; and (b) tradeable
units. 323. In carrying out the responsibilities conferred by section 322, the
Minister shall offer to consult with the government of a province and the
members of the Committee who are representatives of aboriginal governments and
may consult with a government department or agency, aboriginal people,
representatives of industry and labour and municipal authorities or with
persons interested in quality of the environment or the preservation and
improvement of public health. This provision will allow the government to
establish a strong "cap and trade" in carbon dioxide to help it meet its Kyoto
greenhouse gas emission reductions.

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PART 1 LIST OF PROHIBITED SUBSTANCES

Appended to the Act is a list of prohibited substances. They include:

alachlor
leptophos
phosphamidon
cyhexatin (tricyclohexyltin hydroxide)
mirex (dodecachloropentacyclo)
chlorobiphenyls
dodecachloropent acyclo decane
polybrominated biphenyls
chlorofluorocarbon
polychlorinated terphenyls
asbestos
lead
mercury
vinyl chloride
bromochlorodifluoromethane
bromotrifluoromethane
dibromotetrafluoroethane
dibenzo-para-dioxin
dibenzofuran
polychlorinated dibenzo-para-dioxins
polychlorinated dibenzofurans
tetrachloromethane (carbon tetrachloride)
1,1,1-trichloroethane (methyl chloroform)
bromofluorocarbons
bydrobromofluorocarbons
methyl bromide
bis(chloromethyl)
chloromethyl
hydrochlorofluorocarbons
benzene


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Copyright (c) 1998 Canadian Institute for
Business and the Environment, Montreal
All rights reserved.
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Gary Gallon
President
Canadian Institute for Business and the Environment
506 Victoria Ave.
Montreal, Quebec H3Y 2R5
Ph. (514) 369-0230, Fax (514) 369-3282
email: cibe at web.net