September 19, 2019
Substances Management Information Line
Chemicals Management Plan
Gatineau, QC K1A 0H3
Via E-mail: email@example.com
The following Canadian Paint and Coatings Association (CPCA) comments refer to the consultation on the proposed Integrated Strategy for the Protection of Canadian Workers from Exposure to Chemicals that was published by Health Canada on July 11, 2019.
CPCA is a member of the Industry Coordinating Group (CEPA, 1999) and therefore, also reviewed and fully endorses the general comments that were submitted by the Industry Coordinating related to this consultation. The consultation raises both broad-concept and operational-level questions and concerns that highlight the need for additional and detailed consultation by Health Canada. We believe, like the rest of ICG, that Federal officials already have the ability to integrate information relevant to occupational exposures, and to convey this information to their various departments, to the responsible Provincial regulatory bodies and companies protecting worker health, without creating the complex, resource- and time-intensive federal/provincial OHS-Regulator Committee strategy that is being proposed.
Nevertheless, CPCA proceeded with a more detailed analysis of the consultation document point-by-point and highlighted several additional comments and operational concerns regarding the efficiency and trade impact of this whole strategic process.
The activities described in the strategy (proposed action 1 and 2) could be helpful especially if the initial focus of the OHS-Regulator Committee will be on the following two guiding principles:
To help inform and promote awareness: Support stakeholders in understanding the hazards and risks of exposure to chemicals in the workplace through compliance promotion, education, and outreach, especially with regard to delinquent employers and their consideration of some consumer products that can be hazardous when used in a different context than their original intended use, and therefore used in the workplace. This guiding principle focus should even be extended to young people in high schools and colleges, to ensure they enter the job market and labour force with full knowledge of safety concerns and expectations related to maintaining worker safety; and
To avoid duplication of work: The FPT OHS regulators should identify the appropriate pan-Canadian approach for prioritized chemicals, this is assuming that the pan-Canadian approach will be consistent with a North American and a global trade approach, and that any Canadian research/monitoring and information gathering activities/data will equally benefit all jurisdictions and will be fully harmonized with international findings. Canada is co-leading an OECD survey on international best practices for the identification of specific priorities for chemical risk assessment.
Development of a FPT Committee (HC-OHS Regulator Committee): There is already a CIC committee, which discusses OHS current regulatory issues with all stakeholders in the provinces and territories. However, despite efforts to resolve this by HC, there is currently poor FPT representation and engagement. Therefore, all FPT jurisdictions should agree and commit, in advance, on the purpose and implementation protocols of the OSH-Regulator committee and expected outcomes, as there could be legal or constitutional issues to overcome regarding certain initiatives (i.e. OEL development).
The strategy will likely create management challenges at the government senior management levels and at the political level. The final terms of reference for this whole CMP-WHMIS initiative should be further refined and decided via a broader HC consultation process with stakeholders and approval from all FPT jurisdictions in order to make it a ‘single window’ approach as proposed by the current strategy under review.
Also, the involvement of larger groups of regulators/delegates representing 14 jurisdictions as well as stakeholders in the OSH-Regulator committee structure will result in longer discussions with a slower and more complex decision-making process. For the sake of effectiveness, we believe the HC-OHS Regulator Committee should be composed of a maximum of 10-15 experts with relevant risk assessment support credentials and who would contribute to the development of a pan-national strategy to enhance worker protection. This HC-OHS expert or advisory group should be composed of Health Canada, several FPT experts and academia/industry workplace toxicologist experts as well as OSHA/ACGIH/GHS experts. This would then ensure effective international information sharing and harmonization efforts, which can further the goal of worker protection, while contributing to an improved international alignment in a highly globalized economy. This HC-OHS Regulator advisory group of counsels could then report to the larger OSH-regulator Committee comprised of all FPT jurisdictions, ESDC, along with selected industry, labour and NGO representatives for final discussions and approval. This HC-OHS advisory group can be nominated by HC and approved by the larger OSH-Regulator committee to review the OHS literature, identify data needs, prioritize chemicals, identify ad-hoc research projects, ensure proper information sharing and seek consensus among the larger OSH-regulatory Committee regarding approved plans, schedules and deliverables.
The protection of workers is a shared responsibility of all manufacturers, suppliers and employers and it should be noted that over the years, the CMP has been driving chemical formulators’ efforts to stay away for those DSL (and NDSL) substances in support of confirming CMRs or toxicity with respect to human health and the environment, and only after carefully examining any acute or long-term exposure situations and considering suitable alternatives. This is being done under a corporate social responsibility approach and without any specific CMP-WHMIS coordination mechanisms present. CMP decisions and regulatory actions have not only had beneficial effects on the formulation of consumer products or dual usage products but also indirectly on industrial products that are used in the Canadian workplace.
It is said that OHS regulators do not readily have access to the data collected, generated or analyzed by the CMP (i.e. data submitted to the NSN program and the corresponding risk assessments), nor are OHS priorities considered when identifying priorities through the CMP IRAP.
Concerns related to the CBI protection of the CMP information to be shared: CPCA believes that opening the access to and information sharing received under the CMP related to which chemicals are being used in which products, at what quantities, by which industries and in which jurisdictions, also de-couples the risks of CBI disclosure that could be detrimental to industry. This is directly related to the number of different government groups and stakeholders involved in the information sharing process proposed in the CMP-WHMIS strategy. Although this process is vital for the strategy to work, it should be the responsibility of CMP officials to ensure that any information or database being shared is carefully screened and all CBI information removed along with individual company information that can later be subject to public releases (i.e. individual substance concentrations in industrial products found in the Canadian workplace, etc.).
CMP Risk Assessment Lead: Because of the risk-based expertise gained over the years by the CMP, it is also very important the CMP risk assessment and risk management activities related to potentially hazardous products be always completed ahead of any OHS-regulatory Committee pre-screening of some the chemicals being considered high hazard & high volume in the workplace and to be prioritized for assessment. Moreover, as enhanced supply chain transparency has been identified as one of the CMP Post-2020 fundamental priorities, the Post-2020 CMP information gathering process also implies that more details will be sought in order to establish a baseline on supply chain information sharing practices in Canada. This could eventually provide additional useful information/data for any subsequent CMP-WHMIS assessment.
Pivotal Use of IRAP in the Strategy: IRAP is focused on potentially hazardous chemicals for human health and the environment in general, and the priorities may not be on workplace continuous exposure, considering that there are mechanisms already in place in the workplace to ensure the chemicals are safely handled and exposure is limited through procedures and engineering controls, as well as worker protection equipment. Any IRAP priority list of DSL and NDSL substances that are also known to be significantly used in the workplace, will likely have totally different “possible” impact on workers, since these substances are also contained in commercial/industrial mixtures with various complexities, used in multiple contexts and different risk levels than those that can be identified for the general population and the environment. The other issue with the OHS-Regulator Committee prioritizing single substances in the workplace according to IRAP, is that there will remain little or incomplete knowledge of the properties, function and modalities of use of each mixture possibly containing the targeted substances (each substance can react in a mixture with other ingredients, can be trapped in a pigment matrix, trapped in a film upon application on a substrate and cannot be inhaled or released, etc.). Only industry experts have the detailed technical workplace knowledge of its products and for this reason, industry representatives should be a key part of the OSH-regulator Committee and advisory group. Before any prioritization of IRAP substances be made in the workplace, it should be clear as to which workplaces are targeted and there should be narrow and focused discussions one-on-one with the implicated industries, before these substances can make the final cut. Also, the provincial and territorial governments are better equipped than HC to identify priorities based on their experience in workplaces and their views on the matter are also very important.
Another issue with the IRAP approach is that if it concerns NSDL substances, the OHS Regulator Committee can prioritize these and promote additional and early restrictions of workplace use of specific NDSL substances via expedited ministerial conditions (restrictions) without sufficient data and this would lead to non-alignment with NA or global trade leading to unjustified and significant market disruption. All considerations of risks associated with the complex mixtures in which NDSL substances are found and the way they are effectively used in specific products have not being fully examined in the proposed strategy. Will the new CMP-WHMIS group be entitled to block NSN registrations because of the absence of information on the workplace, which would require amendment of the current NSN form? The NSNR is a separate process that is already complicated enough without introducing another regulatory element that may interfere with the introduction of new technologies into Canada which can later serve as suitable alternatives and informed substitutions to preserve the environment and human health. Additionally, under CEPA, if there is an unacceptable risk found, it is not possible to list a substance on the DSL. How would the proposed strategy deal with a situation in which an OHS-regulatory occupational prioritization and subsequent assessment determine an unacceptable risk? Would the DSL substance continue to be eligible for the DSL listing? If this substance is then DSL-deleted and NDSL-added, this could cause trade disruptions. The impact of the CEPA-WHMIS strategy in this regard should be further examined prior to assert any more formal strategy.
The FPT Committee on Drinking Water serving as a model for FPT OHS Regulator collaboration: The FPT Guidelines for Canadian Drinking Water Quality takes into consideration many sources of information, including scientific literature, new international limits and reviews, and input from the FPT. In this context, the prioritization process would perhaps be reasonable, as long as it is not only related to hazard limits being considered but also most recent risk assessment activities and reviews by the CMP program and other international agencies and designated organizations. The FPT Guidelines for Drinking Water prioritization process takes 4 to 5 years, but the prioritized list of contaminants can be amended at any time. In contrast, the CMP process, which contains thousands of substances to assess, had a definitive and fixed phased agenda, which has been consistently addressed using priority levels (high, moderate, low) and was easy to follow for industry and all stakeholders without amendment. Any immediate concerns that emerged were addressed via separate federal actions. A clear, consistent and transparent action plan in the FPT OSH Regulator Model would need to be communicated widely. The FPT guideline prioritization also focuses on microbiological and radiological contaminants, which could be a primary focus for the CMP-WHMIS strategy, if HC/ECCC decide to go for it against general industry advice.
In January 2019, ECHA signed an agreement to provide OELs to hazardous chemicals for 5-6 OELs per year for 2020 onward. The RAC (ECHA’s committee for risk assessment) will review and adopt scientific opinions and review socio-economic impacts. This assessment will interface between REACH and the OSH legislation for enhanced risk management controls. They proceed with a call for evidence first, followed by submission of a scientific report, consultation, and publication of a draft RAC opinion. Overall, this is a 12-24 month process. It appears that ECCC/HC are trying to duplicate a similar system here in Canada. If the CMP WHMIS strategy intends to focus on a pre-defined starting list of 5 or less OELs to be reviewed per year over a 4 to 5-year period, and uses the FPT model and IRAP, this should not lead to the development and imposition of unique Canadian OELs. The OEL development should be highly targeted, and established in consultation with industry/labour groups, harmonized with other OSHA/ACGIH/EU conclusions as well as priorities for future reviews, before undertaking any thorough costly risk parallel assessment process here in Canada, which may end up differing from US and other international organizations’ views. The priorities framework should be developed in consideration of the US/EU workplace chemicals concerns for all OELs of interest in Canada perhaps including an expedited review process of EU RAC/ACGIH OEL conclusions. This might be done after reviewing any possible relevant Canadian regional and national situations. There should be no duplication of any global OEL work being undertaken regarding some of the Canadian priorities that will be established. The main goal for these CMP WHMIS governmental and inter-governmental activities should be to ensure up-to-date harmonized OELs.
It is proposed that priorities for research and monitoring would be identified by the HC-OHS Regulator Committee and communicated to HC scientists in a formal “Call for Proposals”, which would then be peer-reviewed. CPCA believes that there should be an HC-OHS advisory group dedicated to research and monitoring to identify the proper activities and recommend effective partnerships between HC/FPT research scientists, academia and international organizations to avoid any duplication of efforts. Any research and monitoring with respect to environmental and health priorities identified with ad hoc projects should not be restricted to Canada and should be done in partnership with other governments, taking into consideration what is being done elsewhere in specific sectors. These ad-hoc projects would need to be peer-reviewed then approved by the proposed HC-OHS Regulatory Committee.
The strategy document indicates that OHS regulators can, using their respective legislative authorities, identify priorities that diverge from the HC-OHS Regulator’s Committee. Although Canada should avoid misalignment between provinces and territories, it is indeed uncertain whether the risk assessment and risk management methodology can be effectively channelled via the Federal OSH Regulatory Committee decisions and actions. For this whole occupational RA strategy to have any chance to work, we believe new IRAP lists should continue to be the main focus, NOT previous CMP lists of substances and decisions. FPT coordination, implication, transparency and consensus will be key for any risk assessment and risk management support. Any ooccupational risk assessments should be undertaken based on approved scientific protocols which may be coordinated with similar projects in Canada and outside Canada to deliver scientifically valid conclusions. There are potential issues with New Substances used in the workplace that have been raised above. The consideration of restricting any new substances should not be done on the basis of conservative assumptions and the use of the precautionary principle due to the lack of information in the workplace. For any new risks, Health Canada OSH should lead the development of any specific risk assessment and risk management project, jointly or not with the OSH Regulator Committee efforts.
There is some GHS work being undertaken with respect to the development of a global list by the UN Expert Subcommittee on GHS and Transportation of Dangerous Goods. A survey of international classification lists, the development of a set of guiding principles, a pilot classification project (for 3 substances) and a list comparison exercise will be delivered. After a break in activities for the last two UN SGE sessions, this particular WG will be co-chaired by USA and Canada in future. A draft matrix will be available for the 38th session and the full study available for the 39th session in July 2020. There is international support for a global list to move forward, after compiling information on widely used lists of existing classifications and developing a matrix comparing these lists. We believe that the OSH Regulator Committee should be focused on adopting/using such a similar matrix methodology, hence ensuring harmonization of decisions to the global list classification project for initial substances and other priorities. The new CMP WHMIS group program should pilot and encourage alignment with existing classifications, which is also necessary to ensure minimum trade disruption. Ultimately, chemical classification always remains the responsibility of product manufacturers, who can also conduct the necessary tests and have all the necessary product knowledge to assess and determine all the risks.
While the CMP WHMIS group will review the classification of certain prioritized substances according to a proposed schedule, any hazard conclusions and GHS classifications should not be used to emphasize/orient and unduly influence priorities for risk assessment/risk management under the CMP for human health of the general population or environmental concerns. CPCA fears that this new integration program will force GHS hazard classification into the current CMP process, which uses a risk-based approach. The CMP information should be integrated to enhance expertise that may be required by the OHS-regulatory committee, but any hazard-based assessment conclusions should not be used to orient or trying to interfere with the outcome of Post-2020 CMP RA/RM activities for a similar group of substances. Inversely, Schedule I additions made under CEPA should not unduly influence the OHS Regulator Committee assessment. All assessments should continue to be made under the “Best Placed Acts.”
With respect to establishing mechanisms to gather intelligence on occupational exposures to hazardous substances/products (for example, chemicals/products in use, sector demographics, incidents/accidents involving hazardous substances), we believe that all provinces have general statistical data that can be imported into some meta database. It is important to have information on product categories that may contain each prioritized substance and exposure data. For example, the MSDS/SDS of products were extensively searched for during the CMP information gathering activities (sometimes for products that are not even available in Canada), which will likely continue in subsequent CMP phases. The research of this type of information can be incorporated into the meta database, especially with respect to the presence of CMRs in products. Data collection is a crucial step and the absence of reliable scientific data can be a huge obstacle to the successful implementation of any sort of CMP-WHMIS strategy to be proposed. This should be the first necessary step. Industry used to provide workplace exposure data through NSN forms but no longer do so. Moreover, industry is already saturated with Federal CMP survey and information gathering requirements and related duties, and would not be able to supplement many more additional information gathering exercises related to specific workplace uses. While FPTs currently have limited information regarding the chemical composition of products used in the workplace and labour organizations will likely report anecdotal data that is not scientifically-based, a meta analysis process of all provincial databases and CMP information sharing in committee, is precondition to an efficient and targeted CMP-WHMIS approach, which is not discussed at all in the proposed strategy. This questions one of the guiding principles of the strategy stated in the preamble, which is to Strengthen Science: Make risk-informed regulatory decisions based on sound science. We are not sure how any risk-informed regulatory decisions can be adequately made in a context of lack of exposure data and lack of any robust pre-established data-gathering and sharing process within all jurisdictions to start with.
CPCA is supportive of this activity (developing customized compliance promotion material and communication tools, conducting targeted information campaigns to raise awareness, publishing hazard classifications of chemicals on the HC website). Raising awareness of occupational exposure has been a pillar of WHMIS. Health Canada and FPT, via CCOHS and other partners can be involved in ensuring the publication and dissemination of these materials. However, all the materials/examples to be used should be reviewed by the CIC (industry) and OSH Regulator Committee prior to their publication.
HC indicates they do not currently have in place a formalized process to prioritize compliance verification of hazard communication products based on potential risk in the workplace. It is proposed that HC alter its approach to WHMIS compliance enforcement to target products of high use in the work place or high-risk products, sectors, product classes, or chemical ingredients (for example, carcinogens, mutagens, reproductive toxicants and respiratory sensitizers). The CMR enforcement focus at HC and ECCC is supported by the ENVI Parliamentary Sub-committee report recommendations, which are also tied to concerns with vulnerable populations (also including workers). CPCA understands that the OSH Regulator Priority List of Substances and other monitoring and RA activity reports to be delivered by the OSH Regulator committee will be the primary focus for CMP-WHMIS. Our past experience with a series of highly debatable IARC publications which have caused intense international and local expert debates recently, compels us to urge caution in using the initial CMR lens that is proposed in this strategy to initiate the new joint CMP-WHMIS program. Regulatory enforcement in the workplace is mainly a provincial mandate and we believe that provinces are currently making efforts to coordinate and consolidate compliance materials between all provinces to enhance work protection. A similar exercise could be made with respect to enforcement. This could be made via a consultative council of Health Ministers negotiations, without formally taking part of the nationwide CMP-WHMIS strategy.
In conclusion, the WHMIS/CMP strategy will be governed by two different Acts (a third with the PCPA) and numerous FPT acts and regulations. How will the proposed strategy always ensure a timely outcome with respect to all jurisdictional needs, all necessary levels of collaboration within the concerned FPT departments and agencies and how will it reconcile unavoidable legal/political differences of views? Following the GHS implementation, it took five years for all provinces to finally adopt it. As occupational health is a provincial jurisdiction, a (new) federal inclusion in provincial matters should be resolved via a formal agreement in principle.
It is said in the preamble that the proposed strategy suggests these actions will enhance economic trade. On the contrary, our CPCA members fear that, as proposed, it has the potential to result in further FPT trade disagreement and misalignment under the USMCA and jeopardize trade with our largest trading partner, which is already fragile.
The above concerns underline the need for continued discussion and further refinement of the proposed Strategy as its implementation, once finalized, will certainly have a significant impact on all industries and the inter-provincial and international movement of goods.
We thank you for the opportunity to comment.
President & CEO