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Rationale for the Development of a List of Regulated Substances Under CEPA Section 200 and their Threshold Quantities

Preface

Environment Canada's mandate is to preserve and enhance the quality of the natural environment and its vision is to see a Canada where people make responsible decisions about the environment, and where the environment is thereby sustained for the benefit of present and future generations. The mission of its Environmental Emergencies program is to reduce the frequency, severity and consequences of environmental emergencies.

The events of September 11th highlighted the need for increased action to prevent and prepare for potential threats to national security. Canadians are becoming more aware of the risks and are demanding that we adopt appropriate emergency management programs that meet international standards and best practices, to address natural and human-caused incidents, including terrorist threats.

Hence, Environment Canada will be using powers under the Canadian Environmental Protection Act 1999 (CEPA 1999) to ensure that industrial facilities using dangerous substances have emergency plans in place to prevent accidents, and respond quickly and effectively to protect the environment and the health of Canadians in the event of an accident, vandalism or terrorist attack. Part 8 of CEPA, Environmental matters related to emergencies (Sections 193 to 205) provides the Minister of the Environment with various powers to address environmental emergencies.

Two of the authorities that have been identified as being particularly relevant in taking action under Part 8 are Sections 199 and 200 respecting the prevention of, preparedness for, response to and recovery from an environmental emergency (E2).

CEPA Part 8 allows the Minister of the Environment to require E2 plans for toxic or other hazardous substances. The primary objective for requiring E2 planning under Sections 199 and 200 is to ensure that appropriate risk management measures are adopted and implemented for all potential risks associated with the manufacture, storage and use of toxic and hazardous substances in Canada.

Environment Canada has reviewed the relationship between taking action under Section 199 dealing solely with CEPA toxics and that under Section 200, which provides a much broader scope of authority. The department has concluded that the most effective and efficient means of achieving departmental objectives is to require E2 Plans for both CEPA toxics and other hazardous substances by regulation under Section 200. At the same time, the Minister still retains the authority to require E2 Plans for CEPA toxics under Section 199.

Section 200 allows the federal government to establish a list of substances that if they enter the environment as a result of environmental emergency: a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity b) constitutes or may constitute a danger to the environment on which human life depends, or c) constitutes or may constitute a danger in Canada to human life or health. An E2 plan would be required of all facilities that store or use any of these substances at or above the specified threshold quantities.

On December 18, 2001, Environment Canada hosted a multi-stakeholder consultation on the proposed Section 200 regulations under CEPA. Approximately 40 groups or individuals were represented at the session. Stakeholders included affected industry sectors and their associations (e.g. Canadian Chemical Producer's Association, Canadian Petroleum Products Institute, Mining Association of Canada, Canadian Fertilizer Institute, Canadian Association of Agri-Retailers and Forest Products Association of Canada), various non-government organizations (e.g. Environmental organizations, Federation of Canadian Municipalities, Canadian Association of Fire Chiefs), provincial/municipal representatives and other federal departments and agencies.

The consultations confirmed that there is general support for the proposed regulation and consensus was reached to utilize the list of substances and thresholds developed by the "Conseil pour la réduction des accidents industriels majeurs" (CRAIM 2001) as the basis for the drafting of the proposed initial regulation. CRAIM is the Montréal regional chapter of the former Major Industrial Accidents Council of Canada (MIACC).

The CEPA National Advisory Committee (NAC) was also engaged through a series of regular briefings. The provinces too are generally supportive of the initiative; the only issue being the need to avoid duplication with any provincial requirements in this area. Environment Canada is cognizant of the need to avoid duplication with any other federal and/or provincial requirements. The department has initiated dialogue with federal and provincial/territorial agencies to identify and resolve any such potential duplication. It is fully committed to pursuing administrative agreements or other mechanisms to eliminate or minimize any such duplication.

The CRAIM list of hazardous substances was developed using a multi-stakeholder process that reviewed and adopted all the hazardous substances from the Risk Management Program (RMP) developed by the U.S. Environmental Protection Agency (EPA) and a selection of chemicals from the Major Industrial Accident Council of Canada (MIACC) lists.

The revised CRAIM List of 174 substances contains: 63 inflammables (RMP), 77 toxics (RMP), 10 inflammables (MIACC / Occupational Safety and Health Administration (OSHA) or National Fire Protection Association (NFPA)), 20 toxic (MIACC / OSHA or NFPA), 3 explosives and 1 miscellaneous. It was designed to take into account the List of hazardous substances from the EPA Risk Management Program (RMP) while also retaining the most hazardous substances from MIACC List 2.

Hazardous substance threshold quantities were established using the principle of "equivalence of harm".

Knowledge of where specific toxic or hazardous substances exist in Canada and their quantities, has been a critical missing element in preparing for emergencies from an environmental, health protection and national security perspective.

The proposed environmental emergency (E2) regulation under Section 200 of CEPA will initially cover some 174 substances that, if released to the environment as a result of an environmental emergency, act of terrorism or vandalism, may harm human health or environmental quality. They include 16 substances that are either on the List of Toxic Substances (Schedule 1) under CEPA 1999 or are proposed to be added to the List. Hence the regulation will address both CEPA toxics and other hazardous substances of concern.

Canadian facilities subject to the proposed regulation would be required to submit: a notice containing information on the location and quantities of listed substances; a second notice that the required E2 plan has been prepared and a third notice that the E2 plan has been implemented; within 90 days, six months and one year, respectively; of the later of, the proposed regulation coming into force or after a substance reaches or exceeds the prescribed quantity.

Regulated facilities will have the option of submitting the required information in hard copy or electronically. Once reviewed, the notices (minus any legitimate confidential business information or information deemed to be of concern from a national security perspective) will be posted on the EEB website where they will be available for public review. In concert with the Canadian Security Intelligence Service, steps will be taken to manage the sensitive information in a way that does not place Canadians at risk, and access to such information by potential criminal or terrorist elements is prevented.

Under the proposed regulations, a flexible approach to E2 planning is being pursued, thereby providing regulated facilities latitude to reflect local conditions and situations in the development and implementation of the E2 plans.

The E2 plan will have to: identify all major potential environmental emergencies, the potential impact on human health and the environment, including both on-site and off-site consequences, and the associated prevention efforts underway as well as the preparedness, response and recovery capabilities; describe the roles and responsibilities of individuals during an environmental emergency including contact numbers; identify training required for emergency response personnel; include a list of the emergency response equipment available and their location and measures to be used to notify members of the public who would be adversely affected. A copy of the E2 plan must be kept on site and be available for inspection.

In addition, there are provisions for the automatic updating of significant changes to the notices such as: any increase equal to or greater than 10% in the maximum expected quantity reported; or location of substance; or any change at any time after the filing to head office. An amended notice must be filed within 60 days after that time. If the person no longer has the substance at or above the prescribed quantities for 1 year, an amended notice must be filed within 90 days after that time.

Existing E2 plans prepared for other purposes may suffice or may have to be amended or modified only to the extent of any inconsistencies with the requirements under this regulation. Where such a plan does not meet all the requirements of the regulation, the plan shall be amended to meet the remainder of those requirements.

As part of an ongoing auditing process, Environment Canada will be requesting both on a random or targeted manner, copies of some of these environmental emergency plans to be submitted to the department for review. Such action would help Environment Canada assess whether the departmental guidance on environmental emergency planning is adequate and being properly interpreted. Otherwise, more prescriptive measures such as those in the U.S. could be required in the future, if warranted.

Environment Canada undertook consultations with both CEPA NAC and other key stakeholders, prior to finalizing the legal text of the proposed regulations for publication in Canada Gazette Part 1.

The rationale for the CRAIM list described in this document focuses almost exclusively on human health and safety issues. It identifies the primary sources for the various substances included in the CRAIM list (namely U.S. EPA, OSHA and MIACC) and details the original evaluation criteria used by these organizations. The document also explains how, based on the level of severity within the different ranking schemes used, threshold quantities for toxic, flammable and explosive substances were derived. As one would expect, the threshold amount varies inversely with the calculated level of severity of the hazard for each substance.

Environment Canada recognizes the limitations in the scope of the issues the CRAIM list and its source lists are designed to address. Thus, the department plans to refine the environmental emergencies data gathering guidelines, the risk evaluation framework and the rationale to incorporate environmental considerations in keeping with the goals of the Canadian Environmental Protection Act, i.e. the mutual protection of both the environment and human health. The three conditions for the application of the environmental emergencies provisions under CEPA are described in Section 194 of the Act.

Environment Canada will continue to assess the remaining CEPA toxics and other substances of concern, (eg. pesticides, biologics and ammonium nitrate) for possible future inclusion on the Section 200 list. As part of this ongoing process, substances may be added or dropped from the current list and thresholds adjusted if new data show that to be warranted.

Environment Canada also intends to initiate dialogue with both the United States and Mexico on the opportunities for and potential benefits of taking a more harmonized approach to environmental emergency planning across North America.