Posted: Wednesday, 3 January 2007

The Canadian Labour Congress position on Pollution Prevention is derived from the document Canadian Labour Congress National Pollution Prevention Strategy, endorsed by the CLC Executive Council in February 1998.

1. The institution of a Pollution Prevention Planning (PPP) requirement under Part IX of CEPA for workplaces under federal jurisdiction (federal undertakings).

These federal undertakings are in both the private and the public sector, including federal government departments and agencies. The requirement has to address the whole universe of toxic chemicals used in such workplaces, not confined to those which are “CEPA-toxic”. The criterion as to whether a facility is subject to PPP requirements is whether they use chemical substances in industrial packaging or industrial quantities. The PPP requirement will then, however, cover all chemicals used in the workplace, whatever the quantity and whatever the function, e.g. cleansers. For those workplaces which use chemicals in relatively small industrial quantities and which are essentially non-toxic, the PPP requirement will be formal and notional. The alternative is to specify in detail the eligibility criterion for PPP, which is needlessly bureaucratic, and far more burdensome than submitting a plan with virtually nothing in it.

2. Federal-provincial/territorial consultations, led by the Minister of Environment, aimed at instituting a PPP requirement identical with, or equivalent to that in PART IX of CEPA.

The aim here is a National Standard of Pollution Prevention. The reason for requesting federal leadership here is that the federal requirement in CEPA Part IX is a flagship or gold standard for provincial and territorial action. In our opinion, the Canadian Council of Ministers of Environment is not an appropriate forum for such consultations, since the federal Minister may not play a leadership role and may not be perceived as such by the other ministers.

3. A tax or fee on the use of toxic substances nation-wide.

This is similar to that required under the Massachusetts Toxic Use Reduction Act (TURA) of 1989. TURA is list-driven in that the obligation to pay the fee is determined by a list of substances used in a workplace in specified quantities. The CLC proposal is that the fee is rebated pro rata to those provinces and territories whose legislation meets the standard of CEPA Part IX: the revenue raised in that province is rebated to that province. The revenue from the fee is spent on the administration of the PPP legislation, pollution prevention education and technical support for businesses constructing Pollution Prevention Plans, along the lines of the Massachusetts Toxics Use Reduction Institute (TURI). The fee is an economic instrument, but it is not a pollution tax, since the fee is levied on chemical use, not on emissions at the end of the pipe.

4. For the purposes of the CEPA Review, the CLC is asking for two things:

(a) a wholesale revision of CEPA Part IX to institute PPP; and

(b) an enabling provision in CEPA Sections 322-327 (Economic Instruments) to allow for a regulation instituting the fee levied on chemical use.

In previous submissions to this Committee, the CLC pointed out the impossibility of the federal government legislating a pollution prevention program for the whole country, as opposed to those workplaces that are directly and explicitly under federal workplace jurisdiction. The reason is that pollution prevention is notoriously something that is done within workplaces and not at the end of the pipe, where pollution enters the environment. In the Canadian Constitution, what occurs within workplaces, such as industrial relations, comes under provincial, not federal jurisdiction. So the federal government can lay down rules for pollution prevention, but it cannot enforce them, since this would involve at least the possibility of federal inspectors entering workplaces for compliance purposes. They then would, quite properly, be shown the door. That is why the CLC’s route to a National Standard involves more than the federal environmental authority.

Since 1999, the federal government has issued three requirements for Pollution Prevention Plans, for acryonitrile (2003), for dichloromethane (2003) and base metal facilities (2004). The characteristics of these Notices are (l) they are restricted to CEPA Schedule 1 substances, an extremely limited number of substances; (2) they are restricted to an extremely limited number of workplaces; (3) the objective of the PPPs are vague and unenforceable; (4) emission reduction targets are only to be “considered” in PPPs, which are compromised by allowing pollution control measures outside the CEPA definition of pollution prevention; (5) there is no requirement to submit PPPs to the government with thus no form of quality control and no compliance mechanism; and (6) PPPs are not subject to public scrutiny.

The opportunities for pollution prevention measures are still enormous: in 2002, 4,596 facilities filed 24,453 chemical reports under the National Pollutants Release Inventory (NPRI), of which fewer than half reported pollution prevention activities. In the key pollution prevention areas of material or feedstock substitution, only 537 reported activities, and in product design, only 475 reported activities. The vast majority (87%) reported no change in their projected releases in future years. Those projecting a decrease (6%) were balanced by those projecting an increase in projected releases (7%).

5. The Canadian Labour Congress Proposal for Part lX of CEPA.

(a) The general requirement to produce Pollution Prevention Plans

The introduction above suggested criteria for those facilities which are subject to the Pollution Prevention Planning requirement. Once the requirement is triggered, the facility would first have to make an inventory of chemicals used in the workplace. In some jurisdictions, an inventory is already required. It would then have to construct a series of priorities for use reduction, based either on individual substances, or on classes of substances used in the workplace. The way in which this is done is described below in the section on Hazard Assessment. Use reduction targets form part of the plan. The use reduction targets are based on opportunities for use reduction, not on use reduction requirements for individual substances, however toxic. The exception is for IARC Groups 1 and 2A substances, where the plan must address progress towards the elimination of these carcinogens from the workplace.

Plans are to be submitted every two years: six months before the expiration of the two-year period to cover a subsequent two-year period. Subsequent plans must contain progress reports on the declared emission reduction targets. The government can require the submission or re-submission of a plan, with penalties, if

i) a plan has not been submitted;

ii) plans do not conform to the requirements for Pollution Prevention plans;

iii) the plan does not adequately cover the chemicals listed in the inventory;

iv) the plan has not sufficiently exploited the opportunities for Pollution Prevention; or

v) the use reduction targets have not been met, without good reason.

Notices of the receipt of plans are to be published in the Canada Gazette, including the identity of the facility concerned. Summaries of Pollution Prevention Plans are to be published in such a way that the public gets a general idea of the problems and the solutions; genuine confidential business information is protected through the application of standards of disclosure not weaker than the norm for CEPA 1999.

5. (b) The methods and techniques of pollution prevention.

The CEPA Part IX should spell out the methods of pollution prevention that are used in implementing a PPP in the workplace. In summary, these are threefold:

i) elimination or phasing-out of particular toxic substances in the workplace;

ii) input substitution: replacing a chemical with a non-toxic or less toxic chemical or process; and

iii) using less, through a series of techniques known as Tonics Use Reduction (TUR): achieving the same production or process result with reduced toxic substance use.

The characteristics of all these methods are that they avoid the creation of pollutants, rather than trying to control them once created (pollution control methods). It is essential that pollution control methods are explicitly excluded from Pollution Prevention Plans. Controls are absolutely necessary for environmental protection, but they are not pollution prevention: allowing control methods into Pollution Prevention Plans dilutes the effectiveness of pollution prevention to the point that plans unravel in favour of traditional, and much less effective, modes of reducing releases.

For greater certainty, the following methods, by way of addition or interpretation, should be listed:

i) product reformulation, so that the end-product is non-toxic upon use, release or disposal;

ii) production unit redesign or modification;

iii) production unit modernization or improvement to reduce releases both inside and outside the workplace; and

iv) in-process reuse and recycling as an integral part of the production process, such as closed-loop methods.

5. (c) Hazard assessment and substitution analysis

For the purposes of CEPA Part IX, it is only necessary to state in the revised Act that the scientific method used to inform pollution prevention planning is hazard assessment. It is neither necessary nor desirable for parties subject to PPP to conduct a risk assessment before constructing a plan. Pollution prevention moves directly from the identification of a chemical hazard to its removal or reduction, without the mediation of risk assessment. Hazard assessment alone is sufficient to construct a viable, effective and workable plan. Hazard assessment systems are based on the intrinsic toxicological properties of chemical substances, though some of them do incorporate risk data such as epidemiological studies.

The way in which things work is to place a substance along a spectrum of high to low toxicity. Those that are high on the spectrum relative to other chemicals used in the workplace comprise a high priority in PPP. When making substitution decisions, we compare the place on the spectrum of the candidate substance with the proposed substitute: the wider the gap between the two, the better the substitution. Such decisions are subject to constant revision, according to the increased availability of substances and processes.

Sometimes things are easy and informal, since the differences in toxicity between substances are obvious and do not require use of the hazard assessment template. Similarly, some substitutions are easy; others require a detailed examination and revision of production processes in order for a substitution to be made. The trade journals are obviously a good source for the identification of substitutes; an easy method is to access Material Safety Data Sheet (MSDS) databases for the availability of possible substitutes. Canadian MSDS rules require divulging the chemical identity of the substance and a summary of the toxicological properties, in other words, an initial basis for a substitution decision.

Examples of hazard assessment systems are:

• A Scoring System for Assessing Environmental Contaminants,  Ontario Ministry of the Environment, March 1990;
• Candidate Substances List for Bans or Phase-Outs, Ontario Ministry of the Environment, April 1992; and
• A Critique of the Ontario Hazard Assessment System, Canadian Labour Congress, August 1992.