COMMUNITY RIGHT TO KNOW:

Issues for the Five Year Review of the
Canadian Environmental Protection Act

by

West Coast Environmental Law Research Foundation

June 1994

Abbreviations

Executive Summary

Introduction

Community Right to Know Laws

CEPA and Community Right to Know

Confidential Business Information under CEPA

Statutory Basis for NPRI

The Reporting Requirements of NPRI

Conclusion

ABBREVIATIONS

EXECUTIVE SUMMARY

Community Right to Know laws are laws which give the community -- including industry, regulators, labour and environmental groups as well as the general public -- the ability to access both government and private sector information on environmental issues relevant to them. This paper examines the issues related to Community Right to Know as it relates to the Canadian Environmental Protection Act ("CEPA"). It was prepared by West Coast Environmental Law Research Foundation with funding from Environment Canada to assist the House of Commons Standing Committee on Environment and Sustainable Development in its review of CEPA.

A number of Community Right to Know laws have developed in Canada, the United States and Europe over the last twenty years. Community Right to Know Laws include laws requiring disclosure to workers of toxic substances in materials they handle, and Consumer Right to Know laws requiring labeling of products that contain hazardous substances.

The most important Community Right to Know initiative under CEPA is the National Pollutant Release Inventory ("NPRI"). NPRI requires facilities with more than ten employees to report releases of any of 178 listed substances which they use in quantities exceeding ten tonnes and concentrations exceeding one percent. Environment Canada intends to make NPRI results publicly available when the first inventory (for 1993) is released some time in 1994 or 1995. A similar program -- the Toxic Release Inventory("TRI") -- operates in the United States but covers a broader range of pollutants and requires additional information.

Other laws, such as Ontario's Environmental Bill of Rights and British Columbia's Environmental Assessment Act, include Community Right to Know initiatives and provide potential models for CEPA. For instance, these laws require that important environmental regulatory information, such as environmental assessment reports, proposed permits, proposed changes to policies and regulation, etc., be made available through public registries.

Community Right to Know issues for consideration by the Committee include:

Should CEPA be amended to require the establishment of a public registry of information produced or submitted to government under CEPA? A public registry could include information under NPRI, proposed regulatory changes, federal-provincial harmonization or equivalency agreements, CEPA codes of practice and guidelines and other information which may be otherwise difficult to access.

Should a CEPA public registry be required by legislation to include an electronic component? Other jurisdictions have required that public environmental registries be available on-line. Electronic registries have the potential to reduce costs of providing information and enhance the utility of information by linking it with related information in other databases.

Should the CEPA provisions providing confidentiality for certain information submitted to government be augmented by defining "confidential" and establishing a process for resolving disputes about claims of confidentiality? Currently under CEPA, a business required to report information such as NPRI releases can claim that the information is confidential. Even if the claim is patently frivolous, Environment Canada can only release the information in very limited circumstances. Although the extent to which CEPA confidentiality provisions are abused is unclear, it is clear that the process for releasing information is incompatible with the spirit and practical implementation of initiatives like NPRI. Other jurisdictions have laws which narrow the scope of information for which confidentiality can be claimed and establish mechanisms to ensure that frivolous confidentiality claims do not interfere with public access.

Is a new legislative basis required for NPRI? The current legislative basis for NPRI is legally suspect and limits Environment Canada's ability to facilitate implementation of NPRI.

Should NPRI be used to collect information on substances of special interest, such as pesticides, persistent or bioaccumulative toxic substances, and greenhouse gases, and, if so, should CEPA be amended to accommodate collection of such information? Information on pesticides, greenhouse gases, ozone depleting substances and a number of other high profile pollutants is collected through a number of other initiatives; however, these initiatives may lack NPRI's accuracy and specificity as to where releases occur. Although data on sources of persistent bioaccumulative substances has been found inadequate, reporting of these substances under NPRI would require different thresholds and a regulatory power to establish testing protocols.

Should NPRI be used to gather information on maximum quantities of NPRI substances located at a facility? TRI in the United States is part of emergency planning legislation which requires inventories of hazardous substances. Potentially, NPRI could be used for similar purposes.

Should NPRI be used to measure pollution prevention initiatives by requiring facilities to report quantities of NPRI substances in their waste streams prior to pollution control activities? TRI in the United States is used to track pollution prevention efforts by measuring quantities of substances in waste prior to treatment, recycling or incineration.

Should NPRI require reporting of quantities of substances used at facilities? One component of pollution prevention is reduction in the use of toxic substances, especially toxic substances in products. NPRI could be used to track and encourage toxic use reduction. Such information might also be useful for epidemiological research, estimating releases from sources not covered by NPRI, and targeting technical assistance. Information on use of substances could range from reporting of quantities of all NPRI substances used in different processes and products to specific information about how much of a specific substance is manufactured for a specific purpose.

Should NPRI be used to gather information on productivity of facilities? Such information would assist in determining if changes to releases are due to improved environmental performance or reductions in productivity.

Should NPRI's reporting thresholds be changed either to exempt facilities from reporting if they have relatively low releases or to require currently exempted facilities to report if they have significant releases? Environmentalists have expressed concerns that NPRI reporting thresholds may lead to NPRI missing a significant portion of releases, and suggested that any facility releasing more than one tonne of a NPRI substance be required to report. Industry has suggested that costs of NPRI reporting could be reduced by exempting facilities that release less than one tonne of an NPRI substance.

1. INTRODUCTION

If we think [the people] are not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion. -- Thomas Jefferson

Two centuries after Thomas Jefferson wrote those words, most Canadians have a greatly improved ability to gain access to information -- especially government records -- with which to inform their discretion. However, Canadians continue to have a relatively limited ability to access private sector information which relates to the security of public health and the surrounding environment, and access to government information can be difficult. Community Right to Know laws are laws which give the community the ability to access both government and private sector information on environmental issues relevant to them.

1.1 Definitions

At its broadest, Community Right to Know can be thought of as the community's right to access a broad ambit of information relating to environmental protection and public, worker and consumer safety. In this sense, the community's right to know extends to a universe of information on releases, health and environmental effects of substances, toxic chemical use, regulatory initiatives and environmental assessment. Community Right to Know is also sometimes used in a narrow sense to refer to a community's right to access information on environmental hazards and releases of polluting substances, or that right plus consumers' right to know about harmful constituents in products and workers' right to know about the health effects of substances in their workplaces.

While focusing on this narrower definition of Community Right to Know, this paper also examines the broader aspects of Community Right to Know. The paper does not extend, however, to a number of issues -- for instance, emergency preparedness planning and rights of public participation -- which are associated with Community Right to Know and for which Community Right to Know may be an essential foundation.

1.2 Purpose

This paper was prepared by the West Coast Environmental Law Research Foundation, with funding from Environment Canada, written to assist the House of Commons Standing Committee on Environment and Sustainable Development (the "Committee") in its legislatively required five year review¹ of the Canadian Environmental Protection Act ("CEPA"). Thus, this paper addresses Community Right to Know issues as they relate to (a) possible amendments to CEPA, and (b) administration of CEPA and related matters.

2. COMMUNITY RIGHT TO KNOW LAWS

This section gives a short overview of Community Right to Know laws in Canada and other jurisdictions, especially the United States where experience with Community Right to Know laws is greatest. It focuses on laws requiring reporting of environmental releases and other environmental hazards since these form the core of Community Right to Know laws in most jurisdictions.

2.1 Rationale for Information on Environmental Hazards

Five main rationale have been given for legislating public access to information on environmental releases and hazards.

• To honour public rights. Since the public and workers may bear the adverse effects of environmental releases or industrial accidents, they should have a right to information on releases and potential hazards in their community and workplace. Informing the public about risks can also be seen as a compromise between making an environmental practice illegal and leaving it both unregulated and secret. The New Jersey Community and Worker Right to Know Act states "[I]ndividuals have the inherent right to know the full range of the risks they face so that they can make reasoned decisions and take informed action concerning their employment and their living conditions."²
• To assist in identifying priorities for action and targeting of regulatory initiatives. Without knowledge of the sources and amounts of releases, governments and advocates for better environmental protection have faced difficulties in determining the most effective regulatory actions. The United States General Accounting Office has repeatedly emphasized the importance and value of the United States Toxic Release Inventory ("TRI") in developing improved environmental regulation.³ Similarly, information on which facilities have the largest waste streams can assist in targeting technical assistance to reduce waste streams at their source.⁴
• To encourage voluntary action to improve environmental performance. Public access to information on releases or other measures of environmental performance is expected to encourage proactive improvements by businesses and institutions required to report. Also, the process of developing inventory information often identifies equipment leaks and other inefficiencies that increase emissions. Almost 70 percent of industries required to report under the TRI state that their efforts to reduce emissions at source have increased,⁵ and an estimated 50 percent of TRI reporters in the United States have made one or more operational changes as a consequence of reporting.⁶
• To allow tracking of progress in reducing releases. Data on releases or other measurements of performance provide a standard with which to measure society's progress in environmental protection. Inventories are often essential in measuring compliance with inter-jurisdictional agreements for emission reductions.
• To aid in diagnosis of environmental effects and medical research into the effects of chemical exposures. Medical diagnosis of chemical diseases and research into the causes of disease is dependent on sufficient information being available to connect symptoms with chemical exposures. Without Right to Know laws this information is often absent.⁷

2.2 The U.S. Experience

As early as the mid 1970s, some American municipalities passed laws requiring reporting of hazardous chemical inventories at industrial facilities. In 1983, New Jersey became the first state to pass Right to Know legislation when it passed its Worker and Community Right to Know Act requiring extensive reporting of toxic substances used within and released from industrial facilities.

Following a series of tragic industrial accidents culminating in Bhopal, India, the United States Congress passed the Emergency Planning and Community Right to Know Act ("EPCRKA")⁸ in 1986. EPCRKA established state emergency response commissions and local emergency planning committees to develop emergency response plans. It also required manufacturing facilities using hazardous substances to report their inventories of a broad range of substances and their releases of 320 substances and classes of substances. The release reports are compiled annually, and are made available in a number of electronic and traditional formats known as the Toxic Release Inventory or TRI.

Since 1986, the TRI has been significantly expanded. The 1990 Pollution Prevention Act⁹ expanded the TRI to require reports on substances in waste prior to on-site or off-site recycling, treatment or disposal. In 1992, the Community Right to Know More Act¹⁰ (the "CRKMA") and amendments to the Resource Conservation and Recovery Act re-authorization bill¹¹ were introduced into Congress. Both bills proposed adding several hundred chemicals to the TRI, requiring additional chemical use information, and expanding the number of facilities covered by TRI. These bills were eventually defeated, but support for them was a factor in spurring the United States Environmental Protection Agency (the "EPA") to expand TRI.¹²

In August 1993, TRI was expanded beyond the manufacturing sector to cover federal government operated facilities,¹³ and the EPA is currently developing regulations to expand TRI to additional sectors.¹⁴ The chemicals for which reporting is required has expanded to 357 substances or classes of substances. In January 1994, the Environmental Protection Agency officially proposed adding an additional 313 substances and classes.¹⁵ Most recently, the EPA has begun discussions over expansion of the TRI to include data on worker exposure and toxic chemical use.¹⁶

Several states in the United States have been in the forefront of expanding Community Right to Know. In 1986, California passed legislation requiring manufacturers of products containing chemicals known to cause either cancer or reproductive harm to warn the public if the chemical poses a "significant" risk.¹⁷ The duty to warn can be accomplished through labels, instore signs, or instore signs and toll free information services. The California initiative has been hailed as providing a compromise between outlawing use of substances and not regulating them at all, but criticized for providing simplistic information ("this item contains a chemical known to cause cancer") in relation to complex issues of risk assessment.¹⁸

Also, a number of states require facilities to develop pollution prevention plans which analyze and detail how a facility can and will reduce the creation of waste or the use of toxic substances.¹⁹ Although often these plans involve confidential information, many jurisdictions²⁰ have recognized the role of the public in reviewing summaries of plans and reports on plan implementation²¹ or by giving the public access to plans as a punishment for non-compliance.²²

2.3 The Canadian Experience

In Canada, the first Right to Know initiatives occurred in 1985 when both Toronto and Windsor proposed bylaws requiring businesses using significant amounts of listed substances to submit annual, publicly available inventories of these chemicals. These initiatives were shelved in 1988 when the province of Ontario passed amendments to its Occupational Health and Safety Act, which allowed the public to access hazardous material inventories through local health boards.²³

In 1986, Environment Canada released its first State of the Environment Report.²⁴ While state of the environment reporting provides a useful overview of environmental issues in Canada and different regions, it is distinct from Right to Know laws in that it generally involves information which is already publicly accessible and it does not provide the same degree of detailed information on releases of pollutants from specific facilities.

Throughout the mid to late 1980s, a committee with representatives from labour, industry and the two senior levels of government worked on development of Worker Right to Know legislation. Its final product -- the Workplace Hazardous Materials Information System ("WHMIS") -- is a system of integrated provincial and federal laws that require disclosure of hazard information to workers handling hazardous products. Information is conveyed through requirements for labeling, and by provision of material safety data sheets ("MSDSs") to workers.

For covered goods, manufacturers, suppliers, packagers and importers of controlled products are required to provide a MSDS to purchasers and to label products with product identifiers and hazard symbols. The MSDS states the chemical identity of hazardous ingredients as well as providing toxicological, accident prevention and treatment information for the product. In Ontario, the public as well as workers have a right to access MSDSs.²⁵

Consumer Right to Know laws in Canada are largely limited to regulations under the Food and Drugs Act²⁶ which require ingredient labels on prepackaged foods. Canadian labeling requirements have at times been criticized for not disclosing potential incidental ingredients such as pesticide residues, and for not giving consumers a means to find out about the health effects of additives.

In March 1992, the Canadian Chemical Producers Association announced its plan to develop a voluntary emissions inventory for member companies which used over 10,000 kilograms of specified substances and emitted over 1000 kilograms of the substance.²⁷ The first emissions inventory, for 1992, was published in early 1994.

In December 1991, Environment Canada established a multistakeholder advisory committee (the "MSAC") to advise on the design of a National Pollutant Release Inventory ("NPRI"). MSAC included representatives from government, industry groups, labour and environmental groups. MSAC's final report in December 1992 reached substantial consensus on a number of NPRI issues.

2.3.1 NPRI: The Present Components

Current NPRI reporting requirements are based on consensus recommendations of the MSAC. One hundred and seventy eight substances are listed. Owners or operators of facilities which manufacture, process or otherwise use a listed substance in an amount exceeding ten tonnes and in concentrations of greater than one percent are required to report releases of those substances to Environment Canada. (A facility is considered to manufacture a substance even if it creates it as a waste byproduct.)

A number of facilities that meet these criteria are exempted including: facilities with less than the equivalent of ten full time employees,²⁸ mines, oil and gas wells, fuel distribution facilities, and facilities selling products which contain NPRI substances where there are no releases to the environment from the facility.²⁹

A facility which is not exempted is required to report the following information:

• identity of the facility,
• identity of each NPRI substance used in amounts exceeding ten tonnes, and the "use categories" for these substances,³⁰
• estimates of the amounts of (a) onsite releases to air, water, underground injection, and land, and (b) transfers in waste to other locations for various forms of disposal or treatment,
• changes in releases or transfers in the last year, reasons for the change, and anticipated changes in the next three years, and
• seasonal variations in releases.

While the government acted quickly on MSAC's recommendations, MSAC was unable to reach consensus on a number of key issues.³¹ The federal government has not yet resolved any of these issues.

2.3.2 Canadian Community Right to Know: Beyond Inventories

As discussed in the introduction, Community Right to Know goes beyond the reporting of facilities use of toxic substances or release of pollutants. A number of provinces have legislated Community Right to Know provisions which facilitate access to environmental regulatory information including environmental assessment reports and government proposals for changes to environmental policies and regulations.³²

2.4 The European Experience

The development of pollutant inventories was also spurred by the adoption of Agenda 21 by the United Nations Conference on Environment and Development. Agenda 21 called on governments to consider adoption of Community Right to Know and other public information dissemination programmes to improve databases on toxic chemicals, especially chemical release inventories.³³ The European Community has introduced a voluntary audit scheme in which participating companies are to issue environmental statements with audited release data,³⁴ and is expected imminently to issue a directive requiring members to develop such registries.³⁵

The most extensive Community Right to Know system in Europe is in the Netherlands, which has kept a registry of air and water releases since 1974.³⁶ Individualized information for some 700 major polluters and approximately 900 chemicals is integrated with estimates based on census data and emission factors for smaller sources and non-point sources. These estimates can be accessed for different geographic areas to allow for detailed information on all releases in a defined area.

Most other European countries are still in the process of developing programs. Sweden is conducting a pilot project which gathers information on hazardous substances in products, releases and transfers for treatment or disposal.³⁷ The United Kingdom has been gathering data through its integrated permitting system, and proposes to compile annual inventories for the years 1992 and onward.³⁸ An interesting feature of the U.K. proposal is that the Chemical Release Inventory will be part of a public register that also includes the contents of permit files, environmental assessments, and convictions for environmental offences.

3. CEPA AND COMMUNITY RIGHT TO KNOW

Having reviewed the rationale behind and main elements of Community Right to Know in Canada and other jurisdictions, the remainder of this paper focuses on issues relating to how CEPA can be amended or its administration changed in order to improve Community Right to Know in Canada. The discussion is presented in terms of issues, background and options. The options outlined are not necessarily mutually exclusive; nor are they the only options available. The status quo option is not normally listed as it is assumed to always be an option.

3.1 The Need for a Registry

Where is the Wisdom we have lost in Knowledge? Where is the knowledge we have lost in information? -- T.S. Eliot

Issue: Should CEPA be amended to require the establishment of a public registry of information produced or submitted to government under CEPA?

3.1.1 Background

Currently under CEPA , public access to unpublished information is generally carried out by individual requests for the information. This makes it difficult for individuals to know what information is available and it causes delays in receiving the information requested. For civil servants, the individual request system is time consuming to carry out, and provides no guidance as to whether information can be released without a request under the Access to Information Act (the "AIA").^38.1

In response to similar problems with other legislation, legislators have promoted efficient, practical public access to environmental information by establishing public registries. For instance, in order to increase public participation in environmentally significant decisions and in order to increase the accountability of the government for its decisions Ontario passed the Environmental Bill of Rights³⁹ in 1994. The Bill of Rights, creates a registry for specified ministries' proposals for legislation, regulations, policies, permits, licenses and authorizations. The Bill received support from environmental, labour and industrial stakeholders.

Other recent examples of legally required information registries include the Canadian Environmental Assessment Act,⁴⁰ the British Columbia Environmental Assessment Act,⁴¹ and amendments to British Columbia's Waste Management Act⁴² which create a registry for information on contaminated sites.

A central process for giving the public notification of law reform initiatives would be of immeasurable value to both the public and regulators. The large number of environmental law reform initiatives being considered under CEPA at any time guarantees that persons interested in environmental law reform will often be unaware of relevant initiatives.

The types of information that could be included in a public registry under CEPA include:

• National Pollutant Release Inventory information,
• monitoring reports, enforcement information, etc., under CEPA regulations,
• ocean dumping permits, applications, etc.,
• reports and background documents for CEPA substance toxicity assessments,
• new substances reporting information,
• guidelines, codes of practice, etc., developed under CEPA,
• proposals for and consultations regarding changes to CEPA, or regulations and guidelines under it, and
• federal-provincial agreements entered into under CEPA.

It should be noted that establishing a public registry under CEPA would not in itself affect access/privacy issues. A registry would be subject to appropriate confidentiality provisions in the AIA, the Privacy Act and CEPA.

3.1.2 Options

• Amendment. One option is to amend CEPA to establish a public registry. In this case, whether to include an electronic component of the registry is an issue (see below). Work would have to be done on how to define the information that should be included in the registry.
• Non-statutory registry. A second option is to allow the government to establish a CEPA public registry on its own initiative, without a statutory mandate. The main problem with this option is that it is less likely to come to fruition. It has been the legislated obligation, for example, that has driven the establishment of a registry under the Canadian Environmental Assessment Act.

3.2 The Form of a Registry

How shall I ever find the grains of truth embedded in all this mass of paper? -- Virginia Woolf

Issue: Should a CEPA public registry be required by legislation to include an electronic component?

3.2.1 Background

A CEPA public registry would require a paper ("hard-copy") version. Likely, this would be available at Environment Canada offices and at public and academic libraries. But important though a paper version is, virtually all organizations in Canada that provide storage and access to text-oriented information have implemented or are seriously considering an electronic service to supplement their paper-based service.

The advantages of an electronic supplement to a paper-based CEPA public registry are that it would be faster to update, more easily searched, and less expensive to access, deliver, and store information. Almost all of the documents that would be in the registry are produced on a computer originally, so systems can be developed to automate the steps between the production of the document and its availability for electronic access by the public. Moreover, electronic databases can be designed with powerful features not practical for hard copies. For instance, users of TRI can define a geographic area for which TRI will aggregate all reported releases.

In the past, the number of citizens with access to electronic sources of information has been relatively small. However, this is changing very rapidly. Businesses, schools, government offices and community 'freenets'⁴³ are quickly making electronic information available to larger and larger numbers of Canadians.

Recognizing the advantages of electronic dissemination of information, some jurisdictions are legislating the establishment of publicly accessible electronic databases in legislation. For instance, the United States EPRCKA requires establishment of an electronic database.

A specific advantage to an electronic registry is the ability to link CEPA registry information with other related information at a relatively low cost. For instance, in the U.S. the EPA has funded the establishment of RTK Net, an online network which links TRI with databases on industrial accidents, and a New Jersey state database on toxic substances and their known toxicological properties.

Linking of databases can be done at minimal cost through Internet. Internet databases can be linked in a manner that would allow users to switch, at the press of a keyboard command, between information on one database (for instance, NPRI information on a particular facility's releases) to related information on another database (for instance, an environmental assessment document on the expected effects of the same facility's releases).⁴⁴

Possible databases which could be linked to a CEPA electronic registry include:

• Statistics Canada's Environmental Information System. Some components of a public registry, for instance NPRI, would presumably be closely linked, and possibly even made available as part of this system. The system currently includes a geographically referenced set of environmental and socio-economic statistics based on Geographic Information Systems technology.⁴⁵
• Environmental assessment databases. An electronic database is currently being developed for all assessments undertaken by the Canadian Environmental Assessment Agency.⁴⁶ It is expected that the database will eventually include full texts of all assessment documents. A pilot project which would link federal environmental assessment information on one facility with related information in different databases is being considered.⁴⁷ Facilitating ready comparison of environmental assessments based on estimates of future releases with actual releases would provide a check on the accuracy of environmental assessments and the significance of releases. Electronic registries are also being established for provincial environmental assessment acts.
• Toxicity Databases. As part of WHMIS⁴⁸ the Canadian Centre for Occupational Safety and Health has established a database which, for a price, gives subscribers access to draft MSDSs. Additional information is available in databases kept by Health and Welfare Canada on toxicity and environmental fates of thousands of substances.⁴⁹
• Contaminated Site Registries. Recent British Columbia legislation on contaminated sites establishes a registry for pollution abatement orders, site contamination assessments, and remediation agreements.⁵⁰ The ability to link information on contaminated sites with information on environmental releases and environmental assessments would help provide a more complete picture of local environmental issues.

3.3.2 Options

• Require registry with an electronic component. If a public registry under the amended CEPA is to have an electronic component, then the new legislation could refer specifically to the electronic component. This would ensure sufficient momentum to overcome the inertia of existing paper-oriented practices.
• Recommend an electronic registry. The Committee could also make recommendations regarding the form of a registry and, if they recommend an electronic registry, could make recommendations regarding linking data on the registry with other databases.

4. CONFIDENTIAL BUSINESS INFORMATION UNDER CEPA

Issue: Should the CEPA provisions providing confidentiality for certain information submitted to government under CEPA be augmented by defining "confidential" and establishing a process for resolving disputes about claims of confidentiality?

4.1 Background

Whether or not a CEPA public registry is established, there are problems with the current provisions of CEPA regarding confidential information.

Businesses supplying information to Environment Canada under CEPA can claim that the information is confidential, and Environment Canada is prohibited by CEPA from releasing the information except in very limited circumstances.⁵¹ Under CEPA, there is no definition of "confidential", and no mechanism other than the AIA for adjudicating a dispute about whether confidentiality should be granted. Nor must a person requesting confidentiality provide information as to why confidentiality is necessary, although the Governor in Council is empowered to pass regulations requiring such information.⁵²

NPRI provides an example of how the present means of dealing with confidentiality claims is problematic. It is a particularly salient example in that existing confidentiality provisions, if abused, have the potential to subvert the essential reason for NPRI -- public access to facility specific data. While the NPRI example is instructive, it should be noted that confidentiality provisions can be problematic in other areas.⁵³

4.1.1 The NPRI Situation

The confidentiality provisions of CEPA were not designed with Community Right to Know or NPRI in mind. Environment Canada interprets CEPA and the AIA as not allowing Environment Canada to disclose NPRI information for which confidentiality has been claimed unless it receives a request under the AIA and the Information Commissioner under the AIA recommends release of the information.⁵⁴ Under the AIA the Commissioner is to weigh the access request against claims for confidentiality and not allow access if the information

• has been consistently treated as confidential,
• could lead to financial loss or commercial prejudice, or
• might interfere with contractual or other negotiations of a third party.

Concerns raised in relation to this regime include:

• These provisions could protect embarrassing information on the environmental releases of a facility on the basis that commercial losses might result from the facility's loss of public image.
• Facilities can claim that both the identity of and releases from their facility are confidential, and Environment Canada is required to not disclose this information.⁵⁵
• Reliance on the Access to Information Act to obtain basic information such as what facilities have claimed confidentiality and to overturn frivolous claims for confidentiality is cumbersome, costly and contrary to the intent of NPRI.
• There is no disincentive to frivolous claims for confidentiality.
• Unnecessary protection of confidentiality imposes addition information management costs on government.

It has been suggested by members of industry that responsible businesses are not likely to make frivolous confidentiality claims, and that there is no need for new confidentiality provisions in CEPA unless frivolous claims prove problematic.⁵⁶ Some environmentalists have stated that, while they trust the majority of facilities to not abuse CEPA confidentiality provisions, they are worried that a significant minority of facilities -- especially those with the worst environmental performance -- will abuse the existing regime. At the time of writing too few reports had been filed under NPRI to determine the magnitude of confidentiality claims.

4.1.2 U.S. Experience with Confidential Information

Industry has argued that the experience of few claims for confidentiality under the American TRI will likely apply in Canada. However, the TRI experience may not hold in Canada because of the existence under EPCRKA of a special confidentiality regime aimed at ensuring that Community Right to Know is not subverted by unfounded confidentiality requests. Significant differences with the TRI system include:

• The TRI allows withholding information only in relation to the specific chemical identity and, where information is withheld, requires information on the generic class of a release.⁵⁷
• The TRI requires justification for confidentiality to be made at the time the request for confidentiality is made.
• The test for confidential information is much tighter under the TRI, requiring the facility requesting confidentiality to show that they have taken reasonable measures to keep the information confidential, that the information is likely to cause substantial harm to their competitive position, and that a substance's chemical identity is not readily discoverable through reverse engineering.⁵⁸ Applying these criteria, the EPA allowed only one of 486 trade secret claims made in the reporting years 1987, 1988 and 1989.⁵⁹
• Frivolous confidentiality claims are subject to penalties of $25,000 per claim.⁶⁰

Several American states with Community Right to Know laws that expand on TRI have additional restrictions on confidentiality. For instance, New Jersey does not allow confidentiality requests in relation to the identity and amount of any substance released into the environment.⁶¹

These provisions and the EPA's strict enforcement of them may in part be responsible for the limited number of confidentiality claims in the United States. Comparisons of the rates of claims for confidentiality under TRI have been made with the rates of claims under American statutes with provisions similar to CEPA's. These comparisons show that the claims rate was at least ten times higher under the CEPA type regime.⁶² As a result, the EPA is considering moving to the TRI type regime in the areas of information gathering currently covered by CEPA type provisions.⁶³

4.1.3 WHMIS Confidentiality Provisions

Provisions similar to TRI are used in Canada for WHMIS.⁶⁴ Suppliers of hazardous materials and employers can seek exemption from their general duty to disclose identifying information about substances or concentrations of substances in their products. The WHMIS system is similar to American models in that specific criteria are established for judging confidentiality, confidentiality cannot be claimed for some information (such as information on toxicity of substances), and evidence supporting confidentiality must be supplied at the time an exemption is requested. The WHMIS legislation is unique in that it creates an independent commission to review exemption claims, and multistakeholder tribunals to hear appeals from the commission. Few requests for confidentiality have been submitted under the system.⁶⁵

4.2 Options

CEPA could be amended with regard to how claims for confidentiality are dealt with. An amended process could apply to either NPRI alone or all information that might be included in a public registry. Models for dealing with confidentiality include:

• Amend CEPA to adopt all or some of the elements of the TRI approach to confidentiality requests. The TRI scheme appears to be effective although some parties may question the need for such a system.
• CEPA could establish a WHMIS type system for determining confidentiality. Under WHMIS the arbiter of confidentiality claims is independent of the government agency collecting the information; however, this entails establishment of additional government bodies.

5. STATUTORY BASIS FOR NPRI

Issue: Is a new legislative basis required for NPRI?

5.1 Background

Currently, the requirement to provide NPRI information is based on a notice in the Canada Gazette issued under section 16 of CEPA. Most parties familiar with CEPA and the NPRI agree that section 16 is not the best legislative basis for NPRI. Particular concerns include:

• The Minister's power to require information under section 16 is limited to requiring information for the purpose of assessing its toxicity under CEPA and assessing control options. A person could challenge the legal requirement for information on the basis that NPRI's avowed purposes go far beyond assessing toxicity and control options. This is especially true if the substance is not on the Priority Substance List and the government is not engaged in assessing its toxicity or control options. For instance, facilities might argue that section 16 is inapplicable to substances that have been found toxic and for which control options have been developed.
• Use of section 16 and an annual notice in the Canada Gazette gives NPRI a very low profile, and increases the likelihood that small businesses will not become aware of their NPRI reporting requirements. Placement of NPRI requirements in regulations or legislation would provide greater certainty, higher profile and greater transparency in regard to NPRI requirements.
• Section 16 limits what can be done to implement NPRI. For example, suppliers of NPRI substances cannot be required to notify customers of the presence of NPRI substances in the mixtures they sell. This type of obligation intended to ease the burden of NPRI reporting exists for related systems such as WHMIS.⁶⁶
• Under section 16, the Minister can require information from a person only if that person possesses or may reasonably be expected to have access to such information. This raises questions as to the ability of the government to require companies to calculate emissions where these figures are not readily available.
• Because of the limited purposes of section 16, a single window harmonized reporting regime in which facilities provide information both to the provinces and the federal government may not be possible.

5.2 Options

• Place the legislative basis for NPRI in a new part of CEPA devoted to information gathering and public access. This part of CEPA could include the NPRI, as well as provisions dealing with a public registry, confidential business information, as well as existing provisions for gathering information on toxicity.⁶⁷
• Place the legislative basis for NPRI in a separate statute or in a new part of CEPA dealing with emergency response planning. Some members of the environmental and labour communities have advocated using NPRI for purposes of emergency response planning. They suggest that NPRI be established in a new part of CEPA dealing with emergency planning, or a separate federal Emergency Planning Act.⁶⁸

6. THE REPORTING REQUIREMENTS OF NPRI

As discussed above, current NPRI requirements are based on the consensus recommendations of MSAC.⁶⁹ Despite the considerable consensus reached by MSAC a number of issues relating to NPRI remain unresolved. Part 7 discusses these issues, briefly describing the issue and giving some relevant background information.

Part 7 often refers to government, labour, industry or environmental representatives on MSAC as favouring or being opposed to a particular measure. It should be noted that these representatives were generally on the committee because of their individual expertise and perspective, and were not necessarily speaking on behalf of their constituency.

6.1 Substances of Special Interest

Issue: Should NPRI be used to collect information on substances of special interest, such as pesticides, persistent or bioaccumulative toxic substances, and greenhouse gases, and, if so, should CEPA be amended to accommodate collection of such information?

6.1.1 Background

The substances listed under NPRI do not include most of the pollutants of greatest concern to Canada. Greenhouse gases, pesticides, precursors to acid rain and smog, and persistent or bioaccumulative toxics are all off the NPRI list because of MSAC's inability to agree on how these substances should be reported or what additional information is necessary.

Greenhouse Gases

Government, labour, and environmental representatives on MSAC, along with the Canadian Chemical Producers' Association, recommended having a special reporting requirement in NPRI designed to estimate releases of greenhouse gases from different facilities. Although industrial representatives other than the CCPA agreed with this in principle, they recommended delaying the requirement until details of the special reporting requirement could be worked out. As a result, NPRI does not currently cover greenhouse gases.

Although considerable work has been done on calculating Canada's greenhouse gas emissions, the available data is generally aggregate data for sectors and provinces. Adding greenhouse gases would give specific information on releases from individual firms.⁷⁰

Substances of Special Interest

All members of the MSAC Committee believed that NPRI should deal with persistent toxics and other substances of high public concern, such as ozone depleting substances and pesticides. Environmental groups and labour representatives argued that releases of these substances should be reported with revised reporting thresholds. Most government representatives and industry instead favoured using available information to estimate releases of these substances. For many substances such as ozone depleting substances and sulphur oxides, nitrous oxides or volatile organic compounds (precursors to acid rain and smog) considerable work has been done provincially and federally to estimate releases. In some cases this information includes facility specific data, but it is collected on the basis that facility specific data will not be publicly released.

Persistent Toxic Pollutants

Requiring NPRI reporting of highly toxic chemicals that are manufactured in trace amounts in waste streams raises additional issues since these chemicals are used and produced in amounts and concentrations far below the current NPRI thresholds. Nonetheless these substances have physical, chemical or biological properties that make the chemicals persist for extended periods in the environment or bioaccumulate through the food chain. The International Joint Commission's most recent reports have focused on the need to phase out a number of persistent toxic chemicals due to their potential effects on human health, ranging from breast cancer to reduced learning performance among school children.⁷¹ In discussing components of a strategy to deal with persistent toxics, the Commission referred to the need to develop indicators of progress specific to the reduction and virtual elimination of persistent toxic substances.⁷²

While some information on sources of persistent toxic pollutants is available, the availability of such information is limited. The Great Lakes Science Advisory Board has expressed concerns about availability of data on loadings of toxic substances.⁷³ Although information is available for some sources, where releases of particular persistent toxics are regulated,⁷⁴ detailed information is not readily available in one source. Nor is it clear what fraction of persistent and/or bioaccumulative toxic releases are caught by existing reporting mechanisms. Additional reporting requirements for persistent toxics would impose costs both in terms of industry monitoring and government development of technical guides for calculating releases.

In the United States, reporting of small but significant amounts of persistent toxic compounds is not currently required under TRI, although the EPA is currently requesting comments on whether and how it should require reporting of these releases.⁷⁵

6.1.2 Options

• Legislate authority for the federal government to pass regulations or make orders requiring reporting of special interest substances with appropriate thresholds. This enabling power would need to include a power to prescribe testing protocols and methods. In order to facilitate collection of data by random or scientifically selected survey, the enabling provision could provide that randomly selected facilities within specified classes may be required to conduct tests, complete reports or allow Environment Canada personnel to enter their facilities and take samples or conduct tests.⁷⁶
• Recommend whether or not NPRI should gather data on substances of special interest. The Committee could assist in resolving issues related to collection of information on greenhouse gasses, persistent and/or bioaccumulative toxics and other substances of special interest by making recommendations on how these issues should be resolved.

6.2 Maximum Inventories

Issue: Should NPRI be used to gather information on maximum quantities of NPRI substances located at a facility?

6.2.1 Background

Environmental and labour representatives argued that NPRI should be used to assist emergency planning and to raise public consciousness about potentially catastrophic releases in their communities. In this regard they argued that NPRI should require inventories showing the maximum quantities of NPRI substances (or possibly quantities of substances on a separate list of dangerous substances) located at their facility ("inventory information").

While industry and most government participants in MSAC agreed that there was a need for public awareness about risks of catastrophic releases, they argued that community awareness is best served by current voluntary activities, especially industry participation in the Major Industrial Accidents Council of Canada ("MIACC"), and industry cooperation with municipal emergency planning efforts. MIACC, for instance, has been involved in developing lists of chemicals with thresholds that establish when a risk assessment is appropriate. These thresholds may in turn be used to guide when emergency plans should be developed. MIACC currently does not have any plans to develop guidelines as to when inventories of chemicals should be reported.⁷⁷ Industry also argued that supplying inventories would be a significant burden where there are various mixtures of substances including various amounts of NPRI substances, and would add little useful information to NPRI information on what substances are used at a facility.

Reporting of inventory information is required in a number of jurisdictions. In Ontario, the Occupational Health and Safety Act⁷⁸ requires employers to maintain inventories of all hazardous materials present in a workplace, and to provide this to local fire departments and health officers if asked. Where the employer is faced with difficulty in determining what substances are in a mixture the employer is required to make every reasonable effort to determine the ingredients. The public has the right to access inventories held by medical health officers and to require that medical health officers ask for inventories. The Ontario inventory requirements apply to a much broader range of substances than the 178 NPRI substances.

In the United States, under EPCRKA, any facility with more than threshold amounts⁷⁹ of a substance for which it is required to prepare a MSDS under the American equivalent to the WHMIS is required to submit an inventory of the substance to local emergency planning commissions and fire departments. Inventories give maximum and average amounts held, and can either provide aggregate information for all substances of a particular health or physical hazard class (e.g. carcinogens, mutagens) or contain detailed information on individual substances. Subject to confidentiality provisions, the public has access to inventories and has a right to require detailed inventories where substances are held above certain thresholds.

6.3 Measuring Pollution Prevention

Issue: Should NPRI be used to measure pollution prevention initiatives by requiring facilities to report quantities of NPRI substances in their waste streams prior to pollution control activities?

6.3.1 Background

Another issue left unresolved by MSAC was whether or not NPRI should be used as a measure of pollution prevention efforts. Increasingly there is consensus among regulators, industry and environmental groups that avoiding pollution is best done by increasing emphasis on preventing the creation of polluting substances in the first place rather than controlling polluting substances at the end of the pipe.⁸⁰ Measuring progress towards pollution prevention (as opposed to pollution control) could be accomplished by using NPRI to gather information on substances in the waste stream prior to pollution control measures. In the MSAC, however, a number of members felt that using NPRI to measure pollution prevention was premature because of the lack of consensus on what constitutes pollution prevention.⁸¹

The problem of defining pollution prevention is reflected in the September 1993 report of the federal Pollution Prevention Legislative Task Force.⁸² The task force unanimously agreed that activities such as waste treatment, and incineration of waste without energy or product recovery was not pollution prevention; however, it was unable to agree whether activities such as out of process recycling and incineration with energy recovery should be considered pollution prevention. Given the task force's failure to achieve consensus on the definition of pollution prevention it seems unlikely that a common definition will be accepted in the near future.

A number of jurisdictions have used release inventories as a vehicle for measuring progress towards pollution prevention. The United States Pollution Prevention Act requires information on the quantity of chemicals entering the waste stream prior to treatment, disposal, and recycling and incineration (with or without energy/product recovery). Facilities are also required to report pollution prevention practices used with respect to each chemical.⁸³ Massachusetts requires facilities to define production units, and for each unit facilities are required to report annually their percentage reduction in the amount of each of over 500 substances in the waste stream prior to treatment or handling.⁸⁴

6.3.2 Options

• Determine definitions of pollution prevention and pollution control, and mandate or require NPRI to collect information on components of the waste stream prior to pollution control.
• Mandate or require NPRI to collect information on components of the waste stream both before and after recycling and incineration with energy/product recovery as well as before treatment. By requiring reporting of information at various stages of the waste stream NPRI could be used to collect data to detail the progress in pollution prevention, whatever definition is used. Collecting such information would be useful for getting a complete picture of the progress towards pollution prevention without favouring a particular definition.

6.4 Collecting Information on Use

Issue: Should NPRI require reporting of substances used in different use categories at a facility during a year?

6.4.1 Background

6.4.1.1 Types of Use Information

A contentious issue both in the United States and Canada is whether release inventories should collect information on quantities of substances used at a facility. Reporting of toxic chemical use data could take a number of different forms. In its simplest form, a facility would report a single number for each NPRI substance including the total annual quantity manufactured, imported, processed or otherwise used.

Alternatively, a facility could be required to detail toxic chemical inputs and outputs. Such input-output data could be based either on relatively precise but costly engineering calculations ("mass balance" data) or less precise information that is likely to be collected routinely at a facility for business, inventory and release reporting purposes ("materials accounting" data).⁸⁵ Materials accounting data or mass balance data can be collected as an aggregate for an entire facility or individualized for each unit of production.

Use information could also be collected for limited purposes, focusing on specific substances, specific facilities or specific uses of a substance. For instance, battery manufacturers could be required to report on levels of post consumer lead batteries being recycled, new lead being used, etc., in order to determine how much lead is entering the environment from this source. In some cases such information is already collected by Statistics Canada; however, legislation forbids the release of facility specific data.^85.1

6.4.1.2 Pros and Cons of Collecting Use information

A number of different arguments have been made for and against collection of use information. The following attempts to summarize the pros and cons of the issue:

Pros

Tracking and Encouraging Toxic Use Reduction. Environmental and labour groups have favoured reducing use of toxics on the basis that so long as a toxic substance is in use there is at least a hazard that it will eventually enter the environment. Regulators who require reporting of toxic use data state that requiring materials accounting data has encouraged reduced use of toxics; however, industry has stated that industries will not be as motivated to reduce their use of chemicals as they have been to reduce releases because there is not the same agreement on the need to reduce use.⁸⁶

Measuring Pollution Prevention Progress. Although collecting information on waste stream components prior to recycling, incineration or disposal may aid in measuring progress towards pollution prevention the picture painted may be incomplete. For instance, suppose a firm released ten tonnes of benzene directly into the environment in one year, but in the next year only released five tonnes directly into the environment, shifting the other five tonnes into the firm's product where it indirectly entered the environment. The pre-pollution control data discussed in the previous section would give the mistaken impression that the firm had reduced its releases by five tonnes using pollution prevention techniques. Materials accounting data would fill this gap although information on toxic substances in products could be collected separately without full materials accounting data. Materials accounting data would also help determine if reductions in releases are a result of reduced use of a substance or better control of the substance. A committee of the United States National Academy of Sciences found that materials accounting information could be useful in determining progress in pollution prevention, but only if coupled with expert knowledge on pollution prevention options.⁸⁷ Several American states have used materials accounting information for this purpose.⁸⁸

Assessing the Accuracy of Aggregate Release Data. NPRI reports on quantities used could be compared with total quantity of a substance used according to Statistics Canada data. From this Environment Canada could determine the comprehensiveness of NPRI.⁸⁹ For instance, if Statistics Canada data showed that one thousand tonnes of chlorobenzene is produced annually for domestic use, and NPRI aggregate use figures showed that only 100 tonnes of chlorobenzene was used annually, this would be an indication that NPRI is only capturing a low percentage of releases associated with chlorobenzene use.

Assessing the Accuracy of Individual Facility Release Data. In the United States there has been considerable concern about the accuracy of TRI data. A 1990 survey found reporting inaccuracies in about one third of facilities' reports.⁹⁰ Materials accounting data could provide a partial check on inaccurate information. Materials accounting data is often not the best way to reliably determine releases, but can be used to determine gross errors in reported estimates.⁹¹

Targeting Regulatory and Technical Assistance Efforts. States requiring materials accounting information have used the data to assess potential occupational or environmental hazards, and to target facilities in need of technical assistance. For instance, data showing that one of two similar facilities has a higher ratio of releases to use is a possible indication of poor emissions control.⁹²

Assisting Epidemiological Research. Maryland's Toxic Substances Registry System is linked with cancer and birth defect registries so that geographic clusters of birth defects can be compared to use and release patterns to look for correlations.⁹³

Cons

Shifting of Pollution Prevention Priorities. Industry and others often argue that pollution prevention efforts should not focus on reduction in use of toxics, because quantity used does not necessarily correlate to release or environmental impact. They are concerned that tracking use puts a misplaced priority on use reduction over other pollution prevention methods.

Confidential Nature of Use Information. Industry often argues that use information is inherently confidential or is much more likely to be confidential in nature.⁹⁴ While use information may be more likely to be confidential in nature, American states requiring use information report that very few confidentiality requests are made.⁹⁵ A recent review by Minnesota concluded that confidentiality provisions such as those under TRI were adequate to guard legitimate trade secrets.⁹⁶

Cost of Calculating, Gathering and Reporting. A detailed report by the Minnesota Office of Waste Management on requiring chemical use data was unable to find any estimates of the burden of reporting use information.⁹⁷ The report found that use information would likely result in an increased reporting burden for many companies, although it noted that 69% of facilities in that state already gather some data on chemical inputs and purchases in order to calculate release information (under both TRI and NPRI facilities would have to determine whether or not their use level for each substance is above the applicable threshold). Costs of calculating information will increase depending on the complexity of information. In particular, production unit level information would be more expensive than facility level information. The ongoing costs to government of gathering use information have been estimated as being fairly low.⁹⁸

6.4.1.3 The U.S. Experience

Several states have requirements for reporting of use information, and requiring materials accounting information has been a recurring issue with the American federal government. Since 1987 New Jersey has collected facility wide materials accounting data including:

• quantities of TRI substances produced and brought on site,
• consumed on site, and shipped off-site, and
• the units of production associated with each chemical.⁹⁹

The Massachusetts requires facility wide data on total quantities of each of over 500 chemicals

• manufactured, processed or otherwise used,
• generated as byproduct, and
• shipped off-site as a product.¹⁰⁰

Facilities are also required to define production units within their facility and report the range of chemicals used in each unit (less than 5,000 lb., 5,000 lb. to 10,000 lb., or over 10,000 lb.).

Several states have considered whether or not to collect use information, and decided not to in part because other information was available to fulfil the purposes of use information.¹⁰¹ However, often the other available information relied on in the United States appears to be absent in Canada.

Federally in the United States, the CRKMA and the Resource Conservation and Recovery Act re-authorization bills¹⁰² proposed requiring facility level materials accounting information as well as production unit information showing percentage changes in use of a chemical for each unit of production. Most recently, the EPA has begun discussions over the content of a Chemical Use Inventory.¹⁰³ The EPA has proposed a regularly scheduled survey of the chemical industry on quantities of chemicals manufactured for different end uses.¹⁰⁴ The EPA is also receiving comments on and preparing a discussion paper on expanding TRI to include use information.¹⁰⁵

6.4.2 Options

• Amending CEPA to give the Governor in Council a general mandate to require information on quantities of substances used, manufactured or processed in different processes. A general power could be used either to require full materials accounting information or could be used for more limited purposes such as reporting of specific substances used in a specific manner.
• Recommend the types of chemical use information which should be collected. An amendment empowering collection of use information could be accompanied by recommendations as to how this power should be used, for instance, recommendations on whether or not materials accounting data should be collected.
• Amend the Statistics Act to allow release of information relating to use of toxic substances. This option could supplement the other two options.

6.5 Productivity Information

Issue: Should NPRI be used to gather information on productivity of facilities?

6.5.1 Background

By measuring only releases there is a danger that NPRI users could assume decreases in releases are caused by improved environmental performance rather than by other factors such as decreased production levels. Production fluctuation was the most frequently cited reason for changes in TRI releases from U.S. manufacturers, and accounted for a greater percentage of individual facility changes than either pollution prevention efforts or changes in measurement techniques.¹⁰⁶ Within MSAC, most government representatives favoured collecting data on quantity of feedstock chemicals used, to measure true progress in reducing emissions.

Environmental groups and labour on MSAC also favoured following the TRI model and requiring industry to give an indication of its productivity (e.g., tonnes of steel per year). Industry representatives were opposed to either measure of production. They noted that production does not always correlate with releases, and that a meaningful productivity index which reflects all activities involving a particular substance would, for some facilities with multiple or changing product lines, be difficult to develop.

6.5.2 Options

• Amend CEPA to include a regulatory power requiring provision of productivity information.
• Make recommendations as to whether productivity information should be required.

6.6 Reporting Thresholds

Issue: Should NPRI's reporting thresholds be changed either to exempt facilities from reporting if they have relatively low releases or to require currently exempted facilities to report if they have significant releases?

6.6.1 Background

The environmental and labour representatives in MSAC expressed concern over the exemption from reporting requirements of businesses with under ten employees and exclusion from reporting on NPRI substances used in amounts under ten tonnes or concentrations of less than one percent. They suggested that these facilities not be excluded if their releases of any NPRI substance exceeded one tonne per year. On the other hand, the industry representatives believed that an exemption should exist for businesses that met the ten tonne threshold but did not release more than one tonne of an NPRI substance.

6.6.1.1 Small Businesses

Environmental and labour representatives at MSAC recognized a need to minimize burdens on small businesses, but they noted that in some provinces 90 percent of industries employ less than ten people and argued that there was a lack of justification for this threshold.¹⁰⁷ The small business exemption is essentially identical to TRI exemptions. The United States General Accounting Office in its review of the TRI program found:

The states and database users in our survey familiar with the inventory program generally favored requiring facilities with fewer than 10 employees to report their toxic emissions. In addition, 41.7 percent ... of facilities also favored this change. ... Although EPA is sensitive that reporting might impose a burden on small businesses, several OTS [Office of Toxic Substances] officials stated that, in their view, such facilities could be responsible for releases at least equal to those from larger facilities.¹⁰⁸

The GAO noted that there was little indication as to how many small businesses used TRI chemical quantities greater than designated thresholds and recommended that the EPA review the issue with a view to requiring reporting by small businesses which are significant sources of pollutants.¹⁰⁹

6.6.1.2 Use Threshold

MSAC unanimously agreed that the ten tonne reporting condition should be reviewed after the results of the 1993 reporting year were analyzed. Environmental and labour representatives on the MSAC believed it should be lowered and suggested a threshold roughly equivalent to the TRI threshold for chemicals used by a facility (10,000 pounds or about 4.5 tonnes).¹¹⁰

6.6.1.3 The "Or Release" Requirement

To overcome the problems related to exempting small businesses and facilities that do not meet the ten tonne use threshold or the one percent concentration threshold, environmental and labour groups proposed that an additional reporting requirement be added. They proposed that any facility which released one tonne or more of an NPRI substance per year would be required to report, regardless of use levels, concentrations or business size. In particular, this would help ensure that unintentional byproducts are covered.

6.6.1.4 Small Release Exemption

Industry representatives in the MSAC supported exempting facilities from reporting where they do not release more than one tonne of any NPRI substance in a year. They argued that releases of one tonne or less are a small portion of total releases, and that such an exemption would reduce industries reporting burden without impairing NPRI information quality. Other MSAC representatives disagreed with the proposed exemption, arguing that for some facilities releases of one tonne are significant and would be of interest to people living near such a facility.

The United States EPA is currently considering a TRI small release exemption with thresholds of zero, 500, 1,000 or 5,000 pounds. State regulators and environmental groups have been generally critical of a small release exemption. One of the concerns raised has been that a small release exemption would lead to loss of data on transfers, and quantities of substances recycled, treated or incinerated. This would also be a concern under NPRI to the extent reporting of such information is required.

6.6.2 Options

• Recommend or require in CEPA reporting by all facilities, regardless of their size or the amount and concentrations of NPRI substances they use, if they release over a specified amount of any NPRI substance.
• Recommend an exemption from reporting releases of current NPRI substances if the release is less than a specified amount.
• Allow the Governor in Council to establish thresholds for reporting under NPRI.

7. CONCLUSION

It is hoped that this report will be a useful resource for Environment Canada and members of the Committee. West Coast Environmental Law Research Foundation has endeavoured, without making specific recommendations, to present background information which will be of greatest assistance to the Committee in both understanding the concerns and positions of those affected by Community Right to Know provisions in CEPA and in making recommendations to improve those provisions and their implementation. Interested persons are welcome to contact West Coast Environmental Law Research Foundation for additional information regarding any topic raised in the report.

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ENDNOTES

1. CEPA, R.S.C. 1985, 4th Supp., c. 16, s. 139(1).
2. N.J. Stat. A. Ann. §34:5 A-2.
3. United States General Accounting Office, Toxic Chemicals: EPA's Toxic Release Inventory is Useful But Can Be Improved (Washington, D.C.: General Accounting Office, June 1991) at 20-21; United States General Accounting Office, Water Pollution: Poor Quality Assurance and Limited Pollutant Coverage Undermine EPA's Control of Toxic Substances (Washington, D.C.: General Accounting Office, February 1994) at 70.
4. See section 6.4 below.
5. In some cases large corporations faced with release of TRI data pledged to reduce emissions by 90 percent: Frances M. Lynn, Jack D. Kartez and Cheryl Connelly, The Toxic Release Inventory, Environmental Democracy in Action (Washington: Environmental Protection Agency, Office of Toxic Substances, 1992).
6. United States General Accounting Office, Toxic Chemicals: EPA's Toxic Release Inventory is Useful But Can Be Improved, above at footnote 3, at 24-25.
7. Mary L. Lyndon, "Information Economics and Chemical Toxicity: Designing Laws to Produce and Use Data," (1989) 87 Michigan Law Rev. 1795 at 1807.
8. 42 USCS §11001 to 11050.
9. 42 USCS §13101 to 13109.
10. 102d Congress, H.R. 2880 and S. 2360.
11. 102d Congress, S. 976.
12. 59 Fed. Reg. 1789, January 12, 1994. The CRKMA was sponsored by 160 representatives and passed the Senate Environment and Public Works Committee.
13. 58 Fed. Reg. 41981, August 3, 1993.
14. 59 Fed. Reg. 1789, January 12, 1994.
15. 59 Fed. Reg. 1788, January 12, 1994.
16. "Use Inventory Advances" in Working Notes on Community Right to Know, March-April 1994.
17. Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health and Safety Code § 25180.7, 25249.5 to .13. Significant risk is defined by regulation.
18. Paulette Stenzel, "Right to Know Provisions of California's Proposition 65: The Naivete of the Delaney Clause Revisited," (1991), 15 Harvard Environmental Law Review 493.
19. Issues surrounding pollution prevention planning are detailed in a separate report to the Committee. It is expected that the Committee will review the desirability of imposing similar requirements under CEPA.
20. About one third of pollution programs in the United States which require pollution prevention planning encourage some sort of scrutiny of hazardous waste generators: United States General Accounting Office, Pollution Prevention: EPA Should Reexamine the Objectives and Sustainability of State Programs, (Washington, D.C.: General Accounting Office, January 1994) at 24.
21. Massachusetts Toxic Use Reduction Act, G.L. Mass. 1989, c. 211; New Jersey Pollution Prevention Act of 1991, N.J. Stats. Ann. 1991, Title 13:1D.
22. Oregon Toxics Use Reduction and Hazardous Waste Reduction Act, Or. Rev. Stat §465.003-.034 Minnesota Toxic Pollution Prevention Act, Minn. Rev. Stat §115D.01 - .12.
23. R.S.O. 1990, c. O-1, s. 36 and s. 38.
24. Environment Canada, State of the Environment Report for Canada (Ottawa: Supply and Services, 1986).
25. Section 38, Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O-1.
26. R.S.C. 1985, c. F-27; Food and Drug Regulations, C.R.C., c. 870.
27. Canadian Chemical Producers Association, "National Emissions Reduction Master Plan," March 1992.
28. The notice applies to facilities with employees working over 20,000 hours per annum.
29. See Department of the Environment, "Notice with Respect to Substances in the National Pollutant Release Inventory" (March 27, 1993), 127 Canada Gazette, Part I 839, for full list of exempted facilities.
30. Use categories include production of a substance as a byproduct, importation of the substance as a impurity, processing of it for repackaging, processing of it as a component of products, and use of it as a manufacturing aid. For further details see, Environment Canada, Reporting to the 1993 National Pollutant Release Inventory, Part II (Ottawa: Supply and Services, 1993) at 8-9.
31. See Parts 4 to 6.
32. See Part 3 for more detail.
33. United Nations Conference on Environment and Development, Agenda 21, Rio Documents (Conches, Switzerland: United Nations, 1992) Chapter 19, paragraph 40 and 61.
34. World Wildlife Fund, The Right to Know: The promise of low-cost public inventories of toxic chemicals (Washington, D.C.: WWF, 1994) at 8.
35. Telephone conversation with Fran Irwin, World Wildlife Fund, Washington, D.C.
36. Netherlands, Ministerie van Volkshuisveting, Emission inventory in the The Netherlands: Summary (The Hague: Ministerie van Volkshuisveting, February 1994).
37. Margareta Stackergud, Swedish Environmental Protection Agency, "Swedish Emission Register for Chemicals Substances," [January 1994, unpublished presentation to Brussels Workshop on Release Inventories].
38. Ian Pickard, United Kingdom Department of Environment, "A Chemical Release Inventory" [January 1994, unpublished presentation to Brussels Workshop on Release Inventories].

38.1. R.S.C. 1985, c- A-1.
39. An Act Respecting Environmental Rights, S. Ont. 1993, c. 28.
40. S.C. 1992, c. 37.
41. Bill 29, 3d Sess., 35th Parl.
42. Waste Management Amendment Act, 1993, S.B.C. 1993, c. 25.
43. Freenets are community-controlled computer utilities that have sprung up across Canada and the United States. They provide access to a wide variety of electronic information via a home computer and modem. There are plans to have free public terminals in libraries, stores and other public places.
44. Discussion with Lawrence Alexander, FEARO, regarding potential design for a environmental assessment database.
45. Statistics Canada and Environment Canada, Databases for Environmental Analysis: Government of Canada (Ottawa: Statistics Canada, 1992).
46. Information on FEARO's plan is from telephone conversation with Lawrence Alexander of FEARO and FEARO, "Public Registry" [unpublished document, dated November 8, 1992].
47. Although on line dissemination of information is relatively cost effective compared to use of hard copies, the future of the $30,000 pilot project is uncertain because of budgetary concerns.
48. See section 2.3.
49. Health and Welfare Canada, International Register of Potentially Toxic Chemicals: IRPTC databases on line (Ottawa: Supply and Services Canada, 1990).
50. Waste Management Amendment Act, 1993, S.B.C. 1993, c. 26, s. 20.21.
51. Sections 19, 20.
52. Environment Canada's Commercial Chemicals Evaluation Branch have undertaken some work with regard to such regulations.
53 For instances, publication of information on substances new to Canada under CEPA sections 25 to 30: Francois Lavallee, Environment Canada.
54. Based on discussions with Francois Lavallee, Environment Canada. Other interpretations are possible. First, under sections 4, 7 and 20 of AIA it seems possible for Environment Canada to release information pursuant to AIA if Environment Canada makes a determination that a claim for confidentiality is not valid. Also, under section 20(4)(b) of CEPA it is permissible to release information because it is necessary for the purposes of CEPA. However, given that section 16's purpose is to assist in assessing toxicity under CEPA (see Part 6 below) this provision is problematic. Finally, sections 20(6) of CEPA and 20(6) of the AIA allow release of confidential information if the public interest in disclosing the information for environmental protection purposes outweighs the private interest in preserving confidentiality. These provisions have only been used in unusual situations such as where the public must be informed of a catastrophic release.
55. A facility could claim that being listed on NPRI would indicate it is using an NPRI substance, and that this would be of interest to competitors: Francois Lavallee, Environment Canada.
56. Multistakeholder Advisory Committee, A National Pollutant Release Inventory for Canada (Ottawa: Environment Canada, December, 1992) [the "MSAC Report"] at 16.
57. 42 U.S.C.S. §11042(a).
58. 42 U.S.C.S. §11042(b).
59. United States Environmental Protection Agency, "Toxic Release Inventory: Trade Secret Claims" (September 1991) 2:5 Emergency Planning and Community Right to Know Reports 2.
60. 42 U.S.C.S. §11045(d).
61. N.J. Stat. Ann. 1991 34:5A-15(h) and 13:1D-47(l).
62. Gary D. Bass and Alair MacLean, "Enhancing the Public's Right to Know About Environmental Issues," (1993) Villanova Environmental Law Journal 287 at 310-311.
63. "Confidential Data Reform Ahead," [March - April 1994] Working Notes on Community Right to Know 2.
64. For a description of WHMIS see above at section 2.3. Confidentiality provisions are in the Hazardous Materials Information Review Act, S.C. 1985, c. 30, and Hazardous Materials Information Review Regulations, SOR /88-456.
65. Telephone conversation with Dr. David Bennett, Canadian Labour Congress.
66. Hazardous Products Act, R.S.C. 1985, c. H-1. For a description of WHMIS, see section 2.2 above.
67. The constitutionality of the NPRI provision under the federal Peace, Order and Good Government power or the federal Census and Statistics power warrants further consideration.
68. The linkage between NPRI and emergency planning is probably only appropriate if NPRI is used to gather information on maximum quantities of substances. See section 6.2 below.
69. See section 2.3.
70. See Chapter 11, Environment Canada, Canada's National Report on Actions to Meet Commitments Under the United Nations Framework Agreement on Climate Change (Ottawa: Environment Canada, September 1993).
71. See International Joint Commission, Seventh Biennial Report on Great Lakes Water Quality, (Ottawa: the Commission, 1994) at 5-9.
72. Ibid. at 30.
73. Ibid. at 30.
74. For instance, the federal government requires reporting of vinyl chloride releases from vinyl chloride plants and dioxins from pulp mills.
75. 59 Fed. Reg. 1791, (January 12 1994).
76. These powers would also be necessary in relation to enforcement.
77. Telephone conversation with Dr. Heather Marshall, MIACC.
78. R.S.O. 1990, c. O-1, sections 36 and 38.
79. Threshold amounts vary according to substance. See Steven Christiansen and Stephen Urquart, "The Emergency Planning and Community Right to Know Act of 1986: Analysis and Update" (1992), 6 Brigham Young University Journal of Public Law 235.
80. See for instance, Pollution Prevention Legislative Task Force, Final Report (Ottawa: Environment Canada, September 1993) at 35. The degree to which emphasis should be shifted is still a hotly debated topic.
81. MSAC Report, above at footnote 56, at 16 and 21.
82. See the task force report for discussion of the issues surrounding the definition: Pollution Prevention Legislative Task Force, above at footnote 80, at 3.
83. The United States Pollution Prevention Act, 42 U.S.C.S. §13101 to 13109 requires information on source reduction techniques, for example, techniques to reduce hazardous substances entering the waste stream prior to recycling, incineration, treatment or disposal. The MSAC had recommended that NPRI collect information on whether changes in releases and transfers were due to pollution prevention, but had not recommended specifying what types of pollution prevention method were used: see MSAC Report, above at footnote 56, at 48. NPRI did not require this information, presumably because of a lack of definition for pollution prevention.
84. Massachusetts Toxics Use Reduction Act of 1989, M.G.L. c. 211, §10(C).
85. Committee to Evaluate Mass Balance Information for Facilities Handling Toxic Substances, Tracking Toxic Substances at Industrial Facilities: Engineering Mass Balance versus Materials Accounting (Washington D.C.: National Academy Press, 1990) at 2 to 3.
85.1Statistics Act, R.S.C. 1985, c. S-19, s. 17.
86. See Statements by Susan Peck, Massachusetts Department of Environment and Ed Jamro, Monsato, Inc. in Minnesota, Office of Waste Management, Toxic Chemical Use Report (Saint Paul, Minnesota: Minn. OWM, January 1993), at Appendix A.
87. Committee to Evaluate Mass Balance Information, above at footnote 85, at 4 to 5.
88. See Minnesota, Office of Waste Management, above at footnote 86, at 17 to 23.
89. See MSAC Report, above at footnote 56, at 19.
90. United States General Accounting Office, Toxic Chemicals..., above at footnote 3, at 43 to 44.
91 Committee to Evaluate Mass Balance Information, above at footnote 85, at 4.
92. See MSAC Report, above at footnote 56, at 19.
93. Committee to Evaluate Mass Balance Information, above at footnote 85, at 29.
94. See MSAC Report, above at footnote 56, at 20.
95. In New Jersey, only three to six trade secret claims were made between when facility level materials accounting was required in 1987 and 1991: See Minnesota, Office of Waste Management, above at footnote 86, at 40.
96. Minnesota, Office of Waste Management, above at footnote 86, at 44.
97. Ibid., at 27-28.
98. The World Wildlife Fund has estimated that a national program gathering use and release information for 1200 facilities reporting data on an average of 8 chemicals (an average of only 4 of 320 chemicals are reported per facility under TRI) would require 2 microcomputers and under 5 full time staff: World Wildlife Fund, above at footnote 34, at 24 to 25.
99. N.J. Stat. Ann. 34:5A.
100. Toxic Use Reduction Act, Mass. G.L. c. 265.
101. See Minnesota, Office of Waste Management, above at footnote 86, at 17 to 23.
102. See section 2.1 above.
103. Office of Pollution Prevention and Toxics, United States Environmental Protection Agency, Chemical Use Inventory, Discussion Paper (Washington: Office of Pollution Prevention and Toxics, December 20, 1993) at 1 to 9.
104. The exact contents of regulations will be negotiated. Regulations will come under the Toxic Substances Control Act 15 U.S.C.S. §2601 to 2652: see "Use Inventory Advances," [March-April 1994] Working Notes on Community Right to Know 1.
105. "Use Inventory ...", ibid.; telephone conversation with Ward Penberthy, U.S. EPA.
106. Gwen Riley et al., Assessment of Changes in Reported Releases and Transfers between 1989 and 1990 (Washington, D.C.: Office of Pollution Prevention and Toxics, June 1993).
107. See National Pollutant Release Inventory Fact Sheet Number 3 [unpublished, undated pamphlet].
108. United States General Accounting Office, Toxic Chemicals ..., above at footnote 3, at 28-29.
109. Ibid., at 31.
110. It should be noted that TRI uses a different 25,000 pound (11,386 kg.) threshold for substances manufactured or processed.