Summary of Environmental Law in Canada

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11 Chemical Substances and Products


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This chapter addresses government controls of the manufacture, registration, and use of all chemical substances, including pesticides and other agricultural chemicals.

At the federal level in Canada, chemicals are regulated under the following categories:

Since 1997, the federal government has targeted 13 toxic substances for virtual elimination from the Canadian environment. Seven of the substances are pesticides: aldrin, dieldrin, DDT, heptachlor, toxaphene, chlordane and endrin. Four are industrial chemicals or contaminants: dioxins, furans, PCBs and short-chain chlorinated paraffins. One other toxic substance, mirex, has been used both as a pesticide and an industrial chemical. The last substance, hexachlorobenzene, can be classified as a pesticide, an industrial chemical and a contaminant.

Many programs jointly managed by governments and businesses aim at reducing toxic substance emissions by voluntary measures. In 1990, the Canadian chemical industry developed a voluntary code of practice under "The Responsible Care Program of the Canadian Chemical Producers' Association." This program contains six codes of practice for community awareness and emergency response, research and development, manufacturing, transportation, distribution, and hazardous waste management.

Also of note is the Accelerated Reduction and Elimination of Toxics (ARET) program, a voluntary, industry-driven program in operation from 1994 to 2000. The goals of ARET were to eliminate emissions of 30 persistent, bioaccumulative and toxic (PBT) substances through voluntary measures and to considerably reduce emissions of 87 other toxic substances. More specifically, ARET's objective was to reduce PBT emissions by 90 percent and emissions of the other 87 toxic substances by 50 percent before the year 2000. In all, 318 facilities from 171 companies, representing eight industrial sectors in Canada, participated in ARET. Collectively, these facilities reduced emissions of toxic substances into the environment by nearly 28,000 tonnes. Since ARET's termination, Environment Canada has worked jointly with a large number of stakeholders to develop a program to replace it: ARET 2. It is expected that ARET 2 will involve participants in reducing or eliminating emissions and use of toxic substances used during operations.

The following sections deal primarily with the regulation of substances and pesticides under CEPA 1999 and the Pest Control Products Act, because of their particular importance regarding protection of the environment.

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11.1 New Substances: Premanufacture Stage


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Generally speaking, chemical pesticides cannot be used in Canada unless they are first registered under the Pest Control Products Act.

A company wishing to register a new pesticide in Canada must submit a substantial quantity of information regarding the effectiveness of the pesticide, its toxicity, and its environmental characteristics. The type of information required depends on the type of pesticide involved. There are special provisions for pesticides at the research and development stage.

Federal registration of a pesticide is not a guarantee that the pesticide is safe, but it does allow the pesticide to be used for stated purposes in accordance with certain conditions that must be printed on the pesticide's label. As discussed below, provincial and municipal governments often impose additional requirements regarding the use of federally registered pesticides.

CEPA 1999 regulates substances that are not regulated under a more specific federal Act. These include substances other than pesticides, food additives, drugs, explosives, or radioactive materials. CEPA 1999 also regulates international air pollutants and aquatic nutrients, which are discussed elsewhere in this summary.

CEPA 1999 distinguishes "existing substances" from "new substances." Existing substances are those that were in use in Canada in 1986, and which are listed on the Domestic Substances List. The importation or manufacture of any chemical substance not on the Domestic Substances List (and not regulated under some other Act of Parliament) is governed by the new substances notification provisions under CEPA. These provisions require the importer or manufacturer of a new substance to submit to Environment Canada detailed information regarding the chemical characteristics of the substance, its toxicity, and its environmental characteristics. The information required depends on the type of substance and the quantities that are anticipated to be involved. There are special provisions for new substances in the research and development stage.

Regarding the approximately 23,000 existing substances, CEPA 1999 stipulates that they must be assessed in order to determine whether they are toxic or not under the Act. When a substance is determined to be toxic, it is registered under Schedule 1 of the Act and the government must then take steps to regulate its production, use and emission into the environment. The Act also provides for the creation of a list of substances for which toxicity studies are deemed a priority.

Over 20 substances have been registered under CEPA 1999, Schedule 1 (List of Toxic Substances). Dioxins and furans in liquid effluent from pulp mills, for example, have been regulated under this regime. PCBs (polychlorinated biphenyls) and ozone-depleting substances are also regulated under CEPA 1999.

One point to note: several provisions of CEPA offer some form of public participation in the management of toxic substances.

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11.2 Manufacture, Import and Distribution


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Some of the requirements regarding the manufacture and distribution of chemicals and pesticides were described in the preceding section. In addition, the distribution of these substances is governed by transportation and storage requirements set out in the next section. The manufacture, import, and distribution of chemicals and pesticides is also governed by both federal and provincial rules regarding work place health and safety, as discussed in Section 24.4, Occupational Health and Safety, and Chapter 12, Waste Management. The import of hazardous chemicals into Canada is controlled by CEPA 1999, the Hazardous Products Act, and the Pest Control Products Act. The Pest Management Regulatory Agency of Health Canada has the responsibility to monitor the import and export of pesticides.

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11.3 Storage, Transport and Use


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Storage of certain "existing substances," such as PCBs, is governed by regulations under CEPA 1999. Various provinces also have similar regulations regarding the storage of PCBs and other hazardous materials. Regarding the transport of dangerous goods, there is an elaborate set of interlocking federal and provincial regulations under the federal Transportation of Dangerous Goods Act and corresponding provincial statutes. Additional requirements are imposed by legislation applicable to a particular mode of transportation, such as shipping, railways, and airlines. In addition, a wide variety of provincial regulations covers the use of potentially hazardous materials in industrial, commercial, or other settings.

Regarding pesticides, while federal registration of a pesticide is a prerequisite for its use in Canada, provincial legislation controls the use of pesticides. Typically, provincial statutes and regulations provide for the licensing of pesticide applicators and impose rules regarding the use of pesticides of various types. The agricultural use of pesticides is usually dealt with separately from the regulation of pesticides for residential, commercial, forestry, or other purposes. In general, provincial legislation classifies the pesticides and authorises the issuance of permits and licenses to certain types of pesticides users. However, many groups, such as farmers, are often exempted from license and permit requirements.

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11.4 Consumer Protection


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The federal Food and Drug Act requires a company to obtain approval of a new food additive or a new drug prior to manufacture or importation of the new product. Special rules apply to products in the research and development stage. A full discussion is beyond the scope of this summary.

The federal Hazardous Products Act provides for regulations prohibiting or restricting unsafe products, and for labelling "controlled products."

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11.5 Liability and Enforcement


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Statutes such as CEPA 1999, the Pest Control Products Act, and the Food and Drug Act contain provisions making it an offence to violate specific sections of the Act, or regulations adopted under the Act. They also set out penalties in the form of fines and/or terms of imprisonment, as well as powers of a court to make various orders against an offender. For example, CEPA 1999 provides for maximum fines of up to CND$1 million or imprisonment for up to five years, or both. These are criminal sanctions handled in the criminal courts.

In addition, CEPA provides a civil remedy that allows someone who has suffered a loss as a result of a violation of the Act to collect financial damages from the offender.

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