REGULATIONS AND POLICY

Canadian PCB Regulations and Policy

Overview | Federal | Ontario | Quebec | Federal-Provincial

Federal

The Canadian Environmental Protection Act, 1999 (S.C. 1999, c. 33) (CEPA) establishes a regime to identify and assess toxic substances. Responsibility for CEPA is shared by the federal Minister of Environment and the Minister of Health.

Regulatory action respecting substances under CEPA is premised on the definition of toxicity found in the Act. A substance is considered toxic if it "enters the environment in amounts that have or may have an immediate or long-term harmful effect on the environment or human health" (this definition is sometimes referred to as "CEPA-toxic"). A risk-based approach is used, taking into account the entry of substances into the environment, exposure conditions and inherent toxicity.

An elaborate process is established to classify, assess and control and/or prevent pollution by substances. A finding of toxicity allows the federal government to exercise broad regulatory powers that can be found in Part V of the Act, entitled "Controlling Toxic Substances". This power was upheld by the Supreme Court of Canada as a valid exercise of the federal government's jurisdiction over the criminal law (Attorney-General of Canada v. Hydro-Québec [1997] 3 S.C.R. 213).

PCBs were deemed a toxic substance prior to the enactment of the original CEPA (CEPA 1988), under the predecessor Environmental Contaminants Act. The regulations developed to control PCBs (now the Chlorobiphenyls Regulations) were rolled over to CEPA 1988 and ultimately, to CEPA 1999. In this and other CEPA regulations described herein, PCBs tend to be dealt with separately from other toxic substances.

PCBs are listed in the Toxic Substances List (TSL) in Schedule 1 of the Act. (See Item 1 of TSL: "Chlorobiphenyls that have the molecular formula C12H(10-n)Cln in which "n" is greater than 2".)

Listing on the TSL means a substance must be managed under one of two tracks: virtual elimination ("VE") or life-cycle management. These two "tracks" are set out in the Government of Canada's 1995 Toxic Substances Management Policy (TSMP), developed when CEPA 1988 was still in force. CEPA 1999 incorporates the VE concept.

For more details of the CEPA regulations involving PCBs, please link to Canadian Federal Regulatory Information: Summary Table (.pdf file)

Substances are to be slated for virtual elimination under the TSMP and CEPA if they are CEPA-toxic, are found in the environment primarily as a result of human activity, persistent (take a long time to break down), and bioaccumulative (collect in the tissue of living organisms and end up in the food chain).

As PCBs meet these criteria, provisions for VE including listing PCBs on the "virtual elimination list", apply to PCBs.

VE is defined as "the release of a substance to the environment below the level of quantification" or LOQ, which is the lowest concentration of a substance that can be accurately measured using sensitive but routinely available measurement technology. The LOQ is specified by the federal Ministers of Environment and Health for each substance on the VE List.

Before the Ministers of Environment and Health set enforceable release limits for a substance on the VE list, they must consider environmental or health risks of the substance and "any other relevant social, economic and technical matters." Because of this obligation and the wording of the other VE provisions in the Act, there is no obligation to set a release limit at the LOQ of a substance immediately or, arguably, ever.

PCBs would seem to meet the requirements for VE (see subs. 77 (4) of CEPA): they are listed on the TSL; they are persistent and bioaccumulative in accordance with the regulations; their presence in the environment results primarily from human activity; and they are neither a naturally-occurring radionuclide nor an inorganic substance. When these conditions are met, subs. 77 (4) requires the two Ministers to "propose implementation of VE".

Despite the fact that PCBs (and other substances) meet the criteria for VE, to date no VE list has yet been established. In the case of PCBs, perhaps the fact they have been regulated federally since at least 1977 means the federal government feels no obligation to implement VE regulations in addition to the existing regulations. As the government says in its "Guide to the New CEPA" (Minister of Public Works and Government Services, 2000, p. 10), "CEPA 1999 provides the regulatory authority to achieve both the virtual elimination of a substance and life-cycle management to minimize releases to the environment." The government appears to date to have chosen to continue only with the life-cycle management approach, even though it appears to be obliged by the Act to implement VE for PCBs as well.