BUILDING A GREEN ONTARIO THROUGH TOXICS REDUCTION

December 31, 2008 Memorandum to Environment Minister John Gerretsen from the Toxics Reduction Scientific Expert Panel

Memorandum

To: The Honourable John Gerretsen, Minister of the Environment
From: Toxics Reduction Scientific Expert Panel
Re: Advice Regarding Ontario’s Toxics Use Reduction Strategy
Date: December 31, 2008

Introduction

In this final memo from the Toxics Reduction Scientific Expert Panel, the Panel thanks the Minister for the opportunity to contribute to a Toxics Use Reduction (TUR) Strategy for the Province of Ontario.  Through a consensus process, the Panel has written a total of four memos (including this memo) detailing our recommendations for such a strategy. 

The Panel highly commends the Province of Ontario for its forward-thinking approach to toxics reduction and sustainable development.  In particular, the Panel strongly supports the creation of the recently established Cabinet Committee on the green economy. The Panel believes that a TUR strategy is a key constituent of a larger Province-wide initiative to promote growth in a “green economy”.  As the Province sees challenging economic times in the future, the Panel suggests that this is the optimal time to develop a “green economy” with partnerships among all Provincial ministries, federal and municipal governments, the public, industry, labour, academia and others.  The Panel believes that moving towards a “green economy” will put Ontario in a position of competitive leadership among the highly industrialized economies of the world and thus, the world as a whole.  

Below we elaborate on specific recommendations for the TUR strategy.

The “Living List”

The Panel acknowledges the outstanding work of Ministry staff and the Panel’s List Subcommittee in developing the tiered Schedules of substances subject to progressive levels of regulation under the TUR strategy.  As you know, the Panel has recommended that the list of regulated substances be capable of timely evolution as new scientific knowledge emerges.  As such, we recommend that the legislation and regulations be drafted to incorporate by reference the NPRI, and Ontario Regulation 127 into Schedules 1 & 2 (so that whenever these lists are updated, the Schedules are automatically updated without the need to amend the Act or regulations).  We further recommend that the Ministry incorporate into Schedules 1 & 2 those CEPA Toxic substances that are relevant to Ontario.   With respect to the process to be employed for nominating new substances to, or removing listed substances from any one of the various Schedules and in particular Schedule 3, we recommend: i) that a clear process be established and be made readily available, that would enable members of the public and stakeholder groups to nominate (a) substance(s) at any time for inclusion or deletion from the legislation/regulations, to be reviewed by the Ministry within two years, and ii) that substances be nominated for inclusion or exclusion by Ministry staff upon the review of updates of lists from other jurisdictions.  The Panel recommends that a body external to the Ministry, such as a scientific expert panel, be responsible for the final review and recommendation of substances for inclusion into Schedules. In addition, we recommend that the Ministry review the current thresholds (both as to substance volume and number of employees) and sectors within five years of the passage of the legislation and every five years thereafter.  ¹   

The Panel recommends that the legislation create a mandatory requirement for the Ministry to publicly report on its Toxics Use Reduction Strategy annually.  This report should include substances nominated for listing or delisting, documentation (data and some interpretation of the data) of listed substances reported by industries, and a summary of Province-wide progress with respect to meeting the targets set out in the Toxics Use Reduction legislation.  The Panel recommends that the Ministry report biennially on decisions and the rationale behind its decision to list and/or delist substances from the Schedules. These reporting requirements will increase transparency and could take a variety of forms (e.g. a report by the Minister to the Legislature, or a policy document posted on the Environmental Bill of Rights Registry). 

The List Subcommittee identified several circumstances where substances or classes of substances are not well represented on the current Schedules and where there is considerable uncertainty and/or lack of information. Adjudication by the Subcommittee was hampered by insufficient information regarding known use of specific substances in Ontario, difficulty accessing information on ecological and/or human health toxicity, and lack of reliable information on persistence and degradation products.  Based on the efforts of the List Subcommittee, we recommend:

• Further work be completed so that some substance classes not now included, be included in the Schedules, such as polymers and nanomaterials ² for which the size and form of the substance dictates their potential hazard;
• Clarification of Chemical Abstract System (CAS) numbers for some substances that have more than one CAS number and some CAS numbers that include more than one chemical.  This confusion with CAS numbers leads to uncertainty in reporting, which is done according to this number;
• Additional effort be directed towards listing specific metal substances according to CAS number. Currently, metals and their compounds are listed under a single CAS number which neglects substance-specific information (and CAS numbers) of individual metals, organometallic compounds and inorganic metal complexes.  This situation in which a metal and all its compounds are listed under a single reporting line can lead to uncertainties and unnecessary difficulties in reporting thresholds and pollution prevention planning. 

To facilitate decision-making on which substances should be included for reporting, the Panel recommends that the Ministry assemble a centralized, publicly available database listing substances emitted and/or used in the Province that have been adjudicated in the Province by its own staff.  ³  

Alternatives Testing

Toxics Use Reduction is predicated on identifying substances that are more (do not use) and less (do use) toxic. A critical component of TUR must be an a priori assessment of alternatives so that an alternative substance of uncertain toxicity is not substituted in the market place for a substance of better known toxicity, which is now too often the case.  The Panel strongly recommends that the Ministry develop and test a framework for assessing alternatives. As a starting point, the Ministry should consider frameworks for assessing alternatives that are under development in other jurisdictions. The Panel recognizes that a thoughtful protocol for alternatives assessment and its application will benefit the public, industry and the Ministry by providing increased certainty and potentially reducing risk (health and business).

Consumer Products

The Panel acknowledges the Ministry’s commitment to address toxic substances in consumer products, and the considerable technical and jurisdictional challenges associated with this objective. In particular, the Panel agrees that comprehensive federal action on toxic products is the preferable approach. However, it is important that the Province take complementary and/or independent action where necessary to protect Ontarians and their environment.  The Panel supports the inclusion of legislative authority to regulate consumer products in the Toxics Use Reduction Legislation ⁴ .  With respect to the manner in which the Province ought to exercise this authority, the Panel recommends as follows.

The Panel recommends that the Province immediately embark on developing an implementation plan to regulate products. This plan should take a staged approach to regulating products containing toxic substances.  Within one year of the passage of TUR legislation, the Province should identify priority substances and products for regulation, and should propose and post for consultation an appropriate regulatory response.  The Province should work with scientific experts to identify these targets for early action⁵ .  A comprehensive approach to toxic substances in products will require further discussion to determine which products ought to be addressed and which regulatory tools will be most effective in reducing toxic exposures through consumer products.  This policy should be guided by the best available scientific advice, and a precautionary approach should be adopted throughout. 

One of the regulatory tools suggested by community groups is the use of product labeling.  Members of the public have legitimate concerns regarding the safety of the food, cosmetics, and other products that are used in everyday life.  Although industry is understandably concerned about costs and competitive impacts associated with product labeling, the Panel acknowledges Ontarians’ right to be informed as to the presence of toxic substances in consumer products.  

Accordingly, the Panel recommends that the TUR legislation include a provision (or provisions) empowering the Province to require labeling indicating the presence or absence of toxic substances in consumer products (negative and positive labeling, respectively).  In the opinion of Panel members, the issue of regulating products and product labeling raises complex questions of science and public policy that require further study. The Panel therefore recommends that the Province establish a multi-stakeholder group to vet options for labeling. The Panel also recommends that the Province attempt to work with the federal government to develop a national labeling program if possible. 

In discussion of the complexities of product labeling, Panel Members raised examples where negative labeling can, in some cases be advantageous, but it also could have paradoxical effects and/or lead the public to be “label weary”.  Positive labeling similarly could be advantageous, but the details of optimal label design, content, and how and by whom they are determined are complex.  Thus, the Panel recommends that the Ministry review the experience of other jurisdictions with labeling to help derive the best path forward for Ontario.

Commercialization of Green Chemistry Innovations

It is the Panel’s view that the development of safer alternatives through green chemistry in Ontario is a crucial step in both reducing toxic exposures and promoting sustainable prosperity within the province.  We recognize in particular the need to stimulate scientific innovation and the timely movement of innovation into the marketplace.  The Panel notes specifically that there is a funding gap in Ontario (and elsewhere in Canada) with respect to the progression of green chemistry innovations from discovery to commercialization.  This is particularly true in the current economic climate where innovation may be stymied by a lack of resources for capital investment, particularly if the investment is for a new technology or process.

In addition to funding the commercialization of lower toxicity substances, technologies, processes and products, the Province should facilitate communication between industry and academics so that academic research is effectively targeted to address the most pressing environmental issues facing Ontario industries and is tailored to the specific needs of various industrial sectors.  In many, if not most cases, green chemistry innovations will both save industry money and result in better protection of health and the environment in Ontario.  The Panel recommends that the Province play a key role in fostering inter-sectoral conversations that can identify strategic areas for investment and innovation to support the commercialization of green chemistry; this may be one of the roles carried out by the arms-length implementation institution recommended in our earlier memoranda.

Capacity Building

The Panel notes that although Ontario enjoys substantial expertise across a broad range of relevant scientific disciplines, it is necessary to build capacity in pollution prevention and green chemistry through the province (in government, including the Ministry of Environment, academia, and industry). The Panel recommends that the Ministry focus on developing TUR capacity among small and medium-sized businesses (which lack internal research and development funding and infrastructure).  In particular, the previously recommended external academic institute can play important roles in identifying optimal established approaches, developing new technologies and processes, disseminating relevant information, and providing consulting expertise.

While the current regulatory proposal focuses on the larger Ontario facilities and users or emitters of chemicals of environmental and health concern, it is of vital importance to create a comprehensive toxics reduction program that can benefit small- and medium-sized facilities as well, especially those that are located in municipalities close to where people live. Thus, the Panel recommends that the capacity building pillar of TUR include the development of chemical assessment tools and pollution prevention guidance for small- and medium-sized facilities that use and release priority substances below NPRI thresholds. This capacity building work should be done in collaboration with municipalities, especially those active in pollution prevention and sewer use control.    

Confirmation of Previous Recommendations

Finally, the Panel wishes to confirm the following recommendations (many of which have already been addressed in our previous memoranda).  We recommend that:

• the TUR strategy have numerical goals for toxics reduction in order to benchmark progress;
• the timing for beginning Phase Two of the strategy for TUR be specified in the legislation;
• the TUR legislation ultimately be extended to all sectors that use listed substances above the regulatory thresholds. The first phase of expansion within five years should cover  energy facilities and  municipal waste water treatment plants;
• the Ministry incorporate water use/conservation, energy efficiency and waste reduction under the pollution prevention planning required by the TUR legislation;
• the TUR strategy be funded by fees levied on the regulated community, recognizing the cost saving potential of efficiencies discovered through the toxics use reduction planning required by the TUR legislation;
• the Province harmonize the reporting structure for TUR with federal and municipal schemes wherever possible;
• the Province undertake periodic policy assessment/evaluation of the Toxics Use Reduction Strategy;
• the Ministry profile success stories to provide incentives for leadership within industry;
• an external academic institute with stable funding be established as it is essential to the successful implementation and sustained efficacy of TUR, and the TUR legislation should be implemented in cooperation with this institute;
• the Ministry prioritize toxics use reduction (and other environmental protection measures) in areas of the Province that are subject to higher than normal ambient contaminant levels (i.e. pollution “hot spots”).

Panel Process

The Minister asked that the Panel comment on the panel process.

The Panel Members felt privileged to be invited to advise the Minister of the Environment on the highly important subject of toxics use reduction.  Panel Members were very pleased that the Minister and his staff spoke directly to the Panel at the beginning and end of the process, conferred as needed, and acknowledged the Panel’s assistance via letter after recommendations were provided.  Panel Members appreciated the time and effort expended by ministry staff to brief the panel and provide logistical support.

Panel Members reflected most of the sectoral and disciplinary diversity needed to bring multiple perspectives to bear on exploring solutions to complex problems.  Having co-chairs with different backgrounds also helped in bringing together the Panel Members’ contributions in memos. Early in the process, external speakers were invited to inform the Panel about relevant topics and viewpoints. When the Panel thought that having ongoing input from one speaker (green chemistry) would be of great assistance, the Ministry appointed the expert to the Panel, and the member’s input was indeed highly useful.

The face-to-face meetings early in the process, some of which were held in camera, were key to developing understanding and trust among Panel Members which facilitated discussion of complex and sometimes thorny issues. The presence and presentations of Ministry Staff early in each meeting, and later throughout, were important to familiarize Panel Members with the viewpoints and previous problem-solving efforts within the Ministry, as well as implementation realities related to availability of fiscal and personnel resources. Once Panel Members and Ministry Staff were familiar with each other’s expertise and style, teleconference meetings were possible. While perhaps not as effective, given the very full schedules of all involved, teleconferences were more efficient from both scheduling and time use perspectives. The formation of a List Subcommittee drawn from Panel Members, who could work more closely with Ministry Staff on the details of the List Schedules, was also a useful, time-efficient strategy.

Panel Members expressed willingness to contribute further to implementation of Ontario’s TUR strategy should the need arise.

Final Comments

In conclusion, the Panel is optimistic that the Minister and his staff will move forward with a “made-in-Ontario” Toxics Use Reduction Strategy that meets the needs of all Ontarians.  Further, the Panel is hopeful that the strategy will become a central component of a larger initiative from the Province to develop a “green economy”.