Regulation of Toxic Substances under CEPA

CEPA creates a process for determining whether chemicals and other substances used in Canada or released in the Canadian environment are causing harm to the environment, and regulating them if they pose a sufficient threat to the environment or human health.  This process includes the following elements:

·         Assessment of all substances that were use in Canada in the mid 1980s for environmental/health impacts

·         Assessment of substances listed on a Priority Substances List.
Assessment of new substances.

·         Determination that substances are “CEPA Toxic”

·         Targetting certain bioaccumulative and persistent substances for virtual elimination.

·         Development of Regulations for substances on the List of Toxic Substances.

This process applies not only to chemicals, but also certain types of emissions that include a variety of chemical components, e.g. fine particulate matter in air emissions or pulp mill effluent.

CEPA Toxic

Environment Canada only considers a substance toxic under CEPA if it is entering the environment in amounts that have or may have a harmful effect on the environment or human health.  Under CEPA, ozone depleting substances like CFC are considered toxic, even though they are not toxic in the normal sense of the word (i.e. poisonous).  Similarly, an inherently toxic substance may not be “CEPA toxic” if it is not released into the environment.

Assessing Substances for Toxicity

CEPA creates a process to assess many thousands of chemicals that are used in Canadian industry for their potential threat to the environment.  Generally, the federal government will only pass regulations dealing with a substance once it is found to be CEPA toxic and added to the List of Toxic Substances.  The assessment involves several tracks: assessment of substances on the Priority Substances List, assessment of substances on the Domestic Substances list, and assessment of new substances in Canada.

The Ministers of Environment and Health are required to maintain a Priority Substances List that lists substances that are high priorities for assessment of CEPA toxicity.  There are currently 25 substances on the Priority Substances List.  Any person can file a written request that a substance be added to the list, and the Minister is required to respond. CEPA sets a maximum five year time frame for assessing substances on the Priority Substances List, after which the public can potentially demand a board of review if a substance has not been assessed.

The Minister of Environment is also required to maintain a Domestic Substance List listing all substances manufactured or imported into Canada or used in Canadian commerce and manufacturing from 1984 to 1986, and a Non-domestic substance listing all other inanimate substances.   By September 2006, all 23,000 substances on the Domestic Substance List must be categorized for their potential for exposure to Canadians, and their combination of inherent toxicity and persistence or bioaccumulation potential. "Persistence" means that a substance takes a long time to break down. "Bioaccumulation" means that a substance collects in the tissue of living organisms.  Where there is cause for concern based on the initial categorization, substances are subject to a further screening.

Following a screening, Ministers must propose to either:

·         take no further action;

·         add the substance to the Priority Substances List for further assessment; or.

·         recommend that the substance be added to the List of Toxic Substances.

Finally, for those new substances that are not on the Domestic Substances List, as well as for living organisms that are products of biotechnology, importers or manufacturers are required to provide assessment information to the government before they import or manufacture the substance or organism.

Virtual Elimination

For substances, such as PCBs, DDT or dioxins that are:

·         toxic as defined under CEPA;

·         primarily the result of human activity;

·         persistent - take a long time to break down; and

·         bioaccumulative - collect in living organisms and end up in the food chain

CEPA sets the goal of virtual elimination – reducing releases of the substance to the environment to a level where they cannot be detected. For these substances, Ministers may allow releases that exceed detectable levels, but emitters are required to develop virtual elimination plans.

Regulation of Toxic Substances

Once they are deemed toxic and added to the List of Toxic Substances,  CEPA gives wide ranging powers for the federal cabinet (Governor in Council) to regulate the substances, require pollution prevention plans and require emergency plans to deal with their release. 

Once the Ministers of Health and Environment propose that a substance should be added to the Toxic Substance List, they have two years to propose a regulation or other instrument for dealing with the substance, and another eighteen months to finalize the regulation. 

CEPA also allows the Minister of Environment to issue interim orders for substances that are believed to be CEPA toxic, but which have not yet been added to the List of Toxic Substances.

Duties on Business to Provide Information to Government on Potentially Toxic Substances

In certain circumstances, CEPA creates positive obligations for businesses to report information on new substances or release.  In particular:

·         Businesses that import, manufacture, transport, distribute or use substances are required to provide any new information that suggests that a substance is toxic (i.e. may be causing harm to the environment or human health).

·         Where Environment Canada and Health Canada suspect that a substance may become CEPA toxic if releases to the environment increase,  they can require those involved in new activities that might increase releases to report the new activities.  New activities that require reporting are listed on the CEPA Registry.

·         Releases of toxic substances in contravention of the regulations must be reported by those causing the release or having control of the substance prior to its release. 

Related Guide Pages:

·         Canadian Environmental Protection Act

·         Pollution Prevention Plans

For further information about Regulation of Toxic Substances under CEPA:

·         A Guide to the new Canadian Environmental Protection Act, 1999

·         CEPA Registry