Canadian Environmental Protection Act, 1999 (S.C. 1999, c. 33)

Marginal note:Exercise of power under paragraph 71(1)(c)

72 The Minister may not exercise the power under paragraph 71(1)(c) in relation to a substance, a product that contains a substance or a product that may release a substance into the environment unless the Ministers have reason to suspect that the substance is toxic or capable of becoming toxic or it has been determined under this Act that the substance is toxic or capable of becoming toxic.

Substances and Assessments of Substances

Marginal note:Plan — priorities

• 73 (1) The Ministers shall, within two years after the day on which this section receives royal assent, develop and publish a plan with timelines

  • (a) that specifies the substances to which the Ministers are satisfied priority should be given in assessing whether they are toxic or capable of becoming toxic;

  • (b) that specifies the activities or initiatives in relation to assessing, controlling or otherwise managing the risks to the environment or to human health posed by substances that are or will be undertaken under an Act of Parliament for whose administration either Minister is responsible and which the Ministers are of the opinion should be prioritized; and

  • (c) that specifies activities or initiatives to promote the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances to replace, reduce or refine the use of vertebrate animals.

• Marginal note:Consultation and considerations

  (2) In developing a proposed plan, and in implementing the plan, the Ministers

  • (a) may consult with the Committee, a government department or agency, aboriginal people, representatives of industry and labour and municipal authorities or with persons interested in the quality of the environment or the preservation and improvement of public health;

  • (b) shall consider whether assessing substances by class is more advantageous than assessing them individually, with a view toward avoiding substitutions within the class that may be harmful; and

  • (c) shall take into account the matters referred to in paragraph 68(a), including the manner in which the public may be provided with information regarding substances or products including, in the case of products, by labelling them.

• Marginal note:Publication of proposed plan

  (3) The Minister shall publish the proposed plan in the Environmental Registry and shall give notice in the Canada Gazette and in any other manner that the Minister considers appropriate of the proposed plan’s availability.

• Marginal note:Comments

  (4) Within 60 days after the publication of the notice, any person may file with the Minister written comments on the proposed plan.

• Marginal note:Consideration of comments

  (5) The Ministers shall take into account the comments and may amend the proposed plan in any manner they consider appropriate based on those comments.

• Marginal note:Publication of plan

  (6) The Minister shall publish the plan in the Canada Gazette and in any other manner that the Minister considers appropriate.

• Marginal note:Review of plan

  (7) The Ministers shall review the plan within eight years after it is published and every eight years after that.

• Marginal note:Application

  (8) If after reviewing the plan the Ministers propose to amend it, subsections (2) to (7) apply to the proposed amended plan.

Marginal note:Report to Parliament

74 The Ministers shall include in the annual report required by section 342 a report on the progress made in assessing the substances specified in the plan developed under section 73 and in respect of any activities or initiatives specified in the plan.

Definition of jurisdiction

• 75 (1) In this section, jurisdiction means

  • (a) a government in Canada; or

  • (b) the government of a foreign state or of a subdivision of a foreign state that is a member of the Organization for Economic Co-operation and Development.

• Marginal note:Procedures for exchange of information with other jurisdictions

  (2) The Minister shall, to the extent possible, cooperate and develop procedures with jurisdictions, other than the Government of Canada, to exchange information respecting substances that are specifically prohibited or substantially restricted by or under the legislation of those jurisdictions for environmental or health reasons.

• Marginal note:Review of decisions of other jurisdictions

  (3) Where the Minister is notified in accordance with procedures developed under subsection (2) of a decision to specifically prohibit or substantially restrict any substance by or under the legislation of another jurisdiction for environmental or health reasons, the Ministers shall review the decision in order to determine whether the substance is toxic or capable of becoming toxic, unless the decision relates to a substance the only use of which in Canada is regulated under another Act of Parliament that provides for environmental and health protection.

Marginal note:List of substances capable of becoming toxic

• 75.1 (1) The Minister shall compile and may amend from time to time a list that specifies substances that the Ministers have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic.

• Marginal note:Additional information

  (2) The List may include information regarding a substance specified on the List, including an indication that

  • (a) the substance is specified on the Domestic Substances List with an indication that subsection 81(3) or 106(3) applies with respect to the substance; or

  • (b) the Minister has published a notice in the Canada Gazette indicating that subsection 81(4) or 106(4) applies with respect to the substance.

• Marginal note:Deletion of item

  (3) The Minister shall delete a substance from the List, as well as any information regarding the substance that is specified on the List, if

  • (a) an order is made under subsection 90(1) adding the substance to the list of toxic substances in Schedule 1; or

  • (b) the Ministers no longer have reason to suspect that the substance is capable of becoming toxic.

• Marginal note:Publication

  (4) The Minister shall publish the List and any amendments to it in the Environmental Registry and in any other manner that the Minister considers appropriate.

• Marginal note:Statutory Instruments Act

  (5) The List is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act.

Marginal note:Request to assess substance

• 76 (1) Any person may file in writing with the Minister a request that the Ministers assess a substance to determine whether it is toxic or capable of becoming toxic.

• Marginal note:Consideration of request

  (2) The Ministers shall consider the request and decide whether to add the substance to the plan developed under section 73 or deny the request.

• Marginal note:Notification of decision

  (2.1) Within 90 days after the day on which the request is filed, the Minister shall inform the person who filed the request of the decision, how the Ministers intend to deal with it and the reasons for dealing with it in that manner.

• Marginal note:Form and manner

  (3) A request shall be filed in the form and manner and shall contain the information specified by the Minister.

Marginal note:Weight of evidence and precautionary principle

• 76.1 (1) The Ministers shall apply a weight of evidence approach and the precautionary principle when they are conducting and interpreting the results of

  • (a) an assessment conducted under this Part, other than under section 83, in order to determine whether a substance is toxic or capable of becoming toxic; or

  • (b) a review of a decision of another jurisdiction under subsection 75(3) that, in their opinion, is based on scientific considerations and is relevant to Canada.

• Marginal note:Vulnerable population and cumulative effects

  (2) When the Ministers are conducting and interpreting the results of an assessment or review referred to in subsection (1), they shall consider available information on any vulnerable population or environment in relation to the substance and on the cumulative effects on human health and the environment that may result from exposure to the substance in combination with exposure to other substances.

Marginal note:Publication after assessment or review

• 77 (1) If the Ministers have conducted an assessment under this Part, other than under section 83, to determine whether a substance is toxic or capable of becoming toxic or a review of a decision of another jurisdiction under subsection 75(3) that, in their opinion, is based on scientific considerations and is relevant to Canada, the Ministers shall publish in the Canada Gazette, and either Minister may publish in any other manner that that Minister considers appropriate,

  • (a) a statement indicating one of the measures referred to in subsection (2) that the Ministers propose to take and a summary of the scientific considerations on the basis of which the measure is proposed; and

  • (b) if the measure is one referred to in paragraph (2)(c) or (d) and the Ministers are of the opinion that the substance is regulated by any other Act of Parliament, or a regulation or instrument made under that Act, in a manner that provides sufficient protection to the environment and human health, a statement made jointly by the Minister and the Minister responsible for the administration of that Act identifying the Act, regulation or instrument and indicating the manner in which the substance is regulated by it.

• Marginal note:Proposed measures

  (2) Subject to subsection (3), for the purposes of subsection (1), the Ministers shall propose one of the following measures:

  • (a) taking no further action in respect of the substance;

  • (b) unless the substance is already on the List referred to in section 75.1, adding the substance to that List;

  • (c) recommending that the substance be added to Part 1 of the list of toxic substances in Schedule 1; or

  • (d) recommending that the substance be added to Part 2 of the list of toxic substances in Schedule 1.

• Marginal note:Mandatory proposal

  (3) The Ministers shall propose to take the measure referred to in paragraph (2)(c) if the substance is determined to be toxic and the Ministers are satisfied that

  • (a) the substance may have a long-term harmful effect on the environment and

    • (i) is inherently toxic to human beings or non-human organisms, as determined by laboratory or other studies,

    • (ii) is persistent and bioaccumulative in accordance with the regulations,

    • (iii) is present in the environment primarily as a result of human activity, and

    • (iv) is not a naturally occurring radionuclide or a naturally occurring inorganic substance;

  • (b) the substance may constitute a danger in Canada to human life or health and is, in accordance with the regulations, carcinogenic, mutagenic or toxic for reproduction; or

  • (c) the substance is, in accordance with the regulations, a substance that poses the highest risk.

• (4) [Repealed, 2023, c. 12, s. 21]

• Marginal note:Scientific consultation

  (5) Any person may, within 60 days after publication of the statement referred to in subsection (1), file with the Minister written comments on the measure the Ministers propose to take and the scientific considerations on the basis of which the measure is proposed.

• Marginal note:Publication of final decision

  (6) After taking into consideration in an expeditious manner the comments filed under subsection (5), the Ministers shall publish in the Canada Gazette

  • (a) a summary of the assessment or of the review, as the case may be, referred to in subsection (1);

  • (b) a statement indicating the measure that the Ministers propose to take; and

  • (c) if the measure is one referred to in paragraph (2)(c) or (d),

    • (i) a statement indicating the manner in which a proposed regulation or instrument respecting preventive or control actions in relation to the substance is to be developed under this or any other Act of Parliament, or

    • (ii) if the Ministers are of the opinion that the substance is regulated by any other Act of Parliament, or a regulation or instrument made under that Act, in a manner that provides sufficient protection to the environment and human health, a statement made jointly by the Minister and the Minister responsible for the administration of that Act identifying the Act, regulation or instrument and indicating the manner in which the substance is regulated by it.

• Marginal note:Exemption

  (7) If the Ministers publish a statement under paragraph (6)(b) in respect of a substance already specified on the list of toxic substances in Schedule 1, paragraph (6)(c) does not apply.

• Marginal note:Delay — publication of final decision

  (8) If more than two years have elapsed after the publication of a statement under paragraph (1)(a) without the Ministers having published a statement under paragraph (6)(b), the Minister shall publish in the Environmental Registry a statement made jointly by the Ministers indicating the reasons for the delay and an estimated time frame within which the statement under paragraph (6)(b) is to be published.

• Marginal note:Recommendation to Governor in Council

  (9) When the Ministers publish a statement under paragraph (6)(b) indicating that the measure that they propose to take is a recommendation that the substance be added to Part 1 or 2 of the list of toxic substances in Schedule 1, the Ministers shall make a recommendation for an order under subsection 90(1), and, if the substance is already specified in the other Part, the Ministers shall make a recommendation for an order under subsection 90(2).