Originally published in Blakes Bulletin on Environmental Law, January 2007
On December 8, 2006, Prime Minister Stephen Harper announced the federal government’s new "Chemicals Management Plan". The plan will carry out the mandate established for the federal government in 1999 under the Toxic Substances Control part of the Canadian Environmental Protection Act (CEPA) to categorize by toxicity all of the chemical substances known or presumed to exist in Canada that are recorded on the Domestic Substances List (DSL). This DSL categorization was required to identify those substances that present the greatest risk of human exposure or are persistent or bioaccumulative and inherently toxic. The DSL contains approximately 23,000 substances.
The DSL categorization identified 4300 substances that require further assessment in order to determine the degree of hazard or risk presented by their use or presence in Canada. Ultimately, the federal Ministers of the Environment and of Health must determine what, if any, regulatory controls are required with respect to these substances. Such controls can range from risk management measures to an all out ban or prohibition of a substance’s manufacture, import and use in Canada.
The completion of the DSL categorization came at a time when the minority Conservative government of Stephen Harper was in need of a new environmental cause. Its Clean Air Act, which distanced the Conservative government from its Liberal predecessor’s climate change commitment to the Kyoto Accord, was receiving a lukewarm public reception, to say the least (see Canada’s New Clean Air Act – What it does and does not do ..., Blakes Bulletin on Environmental Law, October 2006). The government says that the Chemicals Management Plan will make Canada a world leader in assessing and regulating chemicals that are used in thousands of industrial and consumer products. Moving forward, the government intends to commit $300 million over four years to implement the plan. In the immediate future, the federal government will proceed with risk assessments for 500 high priority substances that were categorized. 200 of these substance form part of an "Industry Challenge Program" and can be found listed on the government’s new Chemicals Management Plan web portal: http://www.chemicalsubstanceschimiques.gc.ca/challenge-defi/index_e.html.
Early in 2007, the federal government will begin publishing individual chemical profiles in groups of 15-30 substances every three months. This will present industry and other stakeholders an opportunity to comment on the government’s assessment and provide any additional information in their possession. The comment period will be six months. Following this period, government scientists will review the information provided. The government will then decide what actions are to be taken. The profiles will contain an overview of the currently available information concerning each substance, including the basis for the initial categorization decision, questions outlining areas where information is being sought and indications of how the information will be used.
In effect, if a company’s chemical substance is included in these high priority chemical lists, the onus is on them to counter any adverse information or assessments in order to avoid restrictive regulations. This is the government’s challenge to industry. Once a profile is published (if not sooner), a process of consultation and negotiation will take place in order to determine what regulations, if any, should be imposed on the chemical’s use. One tool available to the Ministers of the Environment and Health under CEPA is a "Significant New Activity" notice (SNAc). These notices require manufacturers and importers to provide Environment and Health Canada with toxicological data concerning a substance for assessment, before introducing a new use for a substance. If the government agencies have environmental or health concerns with respect to the proposed use, they may delay, restrict or prohibit its use. Such a regime already exists under CEPA for "new substances" that are not described on the DSL. In order to demonstrate how serious the government is, at the same time as it announced its Chemicals Management Plan, it also published an official notice that 148 substances would be subject to a SNAc (See http://www.canadagazette.gc.ca/partI/2006/20061209/html/notice-e.html).
Clearly industry must pay close attention to the federal government’s latest chemical regulation initiative. The minority Conservative government is gearing up for an election and started the new year with the appointment of a new and more aggressive Minister of the Environment. Blakes National Environmental Law Group will continue to monitor further developments surrounding the new Chemicals Management Plan and other environmental initiatives.
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