Childrens' Environmental Health Rights: An Introduction

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This webinar, for service providers, is presented by Kathleen Cooper and Theresa McClenaghan of the Canadian Environmental Law Association (CELA). It explains why a child is vulnerable to toxic substances arising from environmental pollution or use of consumer products. Strategies for public education and outreach are described. The webinar also reviews statutes, rights, remedies and legal tools available for public involvement and for assisting clients.

Transcript of Childrens' Environmental Health Rights: An Introduction

Page 1: Childrens' Environmental Health Rights: An Introduction

To view this presentation as a webinar with sound visit Your Legal Rights

www.yourlegalrights.on.ca/training

Your Legal Rights is a web site of legal information for people in Ontario. It contains free, easy to

understand legal information produced by hundreds of organizations across Ontario.

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Presentation to: CLEOnet Webinar SeriesNovember 10, 2011

Theresa McClenaghan, Executive DirectorKathleen Cooper, Senior ResearcherCanadian Environmental Law Association

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The content of this webinar is based on law that was current on the date the webinar was recorded. Your Legal Rights webinars contain general legal information. They are not intended to be used as legal advice for a specific legal problem. For more information on how to find a lawyer or to contact your local community legal clinic visit: www.yourlegalrights.on.ca/find-services

Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

Please Note:

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Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

About our presenters…

Kathleen Cooper is Senior Researcher with the Canadian Environmental Law Association (CELA). She has directed law reform campaigns on the subjects of toxic substances, pesticides, land use planning and hazards in consumer products and also provides casework support on environmental litigation files. She has conducted extensive research into the effects of environmental contaminants on fetal and child health and has also written extensively on the subject of environmental policy and children’s health.

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Your Legal Rights is a project of CLEO and funded by the Law Foundation of Ontario.

About our presenters…

Theresa is Executive Director of the Canadian Environmental Law Association (CELA). She has practised public interest environmental law, in private practice since 1985 and at CELA since 1998. Theresa’s expertise in environmental law includes environmental health, water law and policy, energy law and constitutional law. Theresa sits on the advisory board of the McMaster Institute for Environmental Health, the board of directors of the Environmental Health Institute of Canada as well as on the board of FreshWater Future.

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Outline1. Introduction2. Key concepts:

greater vulnerability of children; evidence-based priorities for health

effects and exposures of concern

3. Statutes, rights, remedies and legal tools for public involvement and clients.

4. Outreach and collaboration.

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Environmental Standard Setting and

Children's Health

May 25, 2000

CELA’s Initial Work on Children’s Env’l Health CELA-OCFP Collaboration:

Review of scientific evidence of greater vulnerability of children, focus on lead and pesticides

Overall conclusion – law is not protective of children

Large policy reform agenda Helped change federal

pesticide law and bylaw efforts

Limited effect on chemicals regulation (overwhelming to public audience) ⇒ Need for education & outreach

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Who is CPCHE?

The Canadian Partnership for Children’s Health and Environment:

…an affiliation of eleven organizations working together since 2001 to protect children from toxic chemicals and pollutants.

www.healthyenvironment

forkids.ca

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CPCHE PartnersCanadian Association of Physicians

for the Environment (CAPE)Canadian Child Care Federation (CCCF)Canadian Environmental Law Association (CELA) Environmental Health Clinic – Women’s College HospitalEnvironmental Health Institute of Canada Learning Disabilities Association of Canada (LDAC) Ontario College of Family Physicians (OCFP)Ontario Public Health Association (OPHA)Pollution ProbeSouth Riverdale Community Health CentreToronto Public Health (TPH)

www.healthyenvironment

forkids.ca

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CPCHE Resources

Evidence reviews

Raising public awareness, empowering personal action

Building capacity among service providers. Strategies, checklists, and related fact sheets. Add to well-known concept of “childproofing.”

Fostering dialogue

Advocating for research and policy improvements

www.healthyenvironmentforkids.ca

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Fetal and Child Health Risks from Environmental Exposures

Early environmental exposures are linked to increased risks of….Asthma and Respiratory ProblemsImpacts on Brain Development and Brain FunctioningCancer Impacts on Reproduction, Fetal and Child Development Impacts on the Endocrine System and Immune System

Fetus and child are more vulnerable for multiple reasons:Differences in proportion, physiology, behaviour and developmental vulnerabilities with lifelong implications

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Early environmental exposures and links to later life chronic disease

Increasing evidence of associations between early environmental exposures and multiple chronic diseases or chronic disease risk factors including:

Obesity and metabolic syndromeType 2 DiabetesCardio-vascular diseaseSeveral cancers Alzheimer’s disease and

Parkinson’s disease

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Low income children at highest risk

• Poverty – health risk itself• Substandard housing:

• Mould, Lead, (Radon), Pesticides, Combustion gases

• Older/reused products::• phthalates, PBDEs, BPA, PFOs, SCCPs, etc.

• Indoor air and dust – key exposure pathways for env’l exposures

Renovation activity can greatly increase some of these exposures

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First Nations children at higher risk than most children

• High levels of poverty

• Genetic differences (e.g., risk of obesity) ⇒ increases vulnerability to “obesogenic” substances (Bisphenol A, organotins, others?)

• Cultural importance of fish consumption (higher mercury and POPs exposure)

• Locations near industry. E.g., Aamjiwnaang FN and suspected impact of chemical exposures

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Biomonitoring Results: Population-wide Exposures; SES Effect is Apparent

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• Population-wide exposure to multiple contaminants (lead, mercury, bisphenol A (BPA), pesticides, phthalates, PCBs, brominated flame retardants, perfluorinated compounds, etc.)

• Consistently find higher levels in children (e.g., BPA in fetus 5x higher; methylmercury ~ 2x higher)

• Lead levels higher in children at lower SES and living in older housing.

• Correlations between low SocioEconomic Status and higher PBDE levels in children’s blood.

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Common Environmental Health Issues in Low Income Circumstances: Mould

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Causes•Rain/water leaks due to faulty/poorly maintained roof drainage or basement leaks; plumbing leaks

•Humidity and condensation due to:

• Damp basements (with no dehumidifier)

• Inadequate/missing bath or kitchen ventilation

• Overcrowding of people

• Inadequate insulation

• Low indoor temperature in cold weather

•Grows on wood, drywall, paper, damp materials or furniture

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Mould, continued

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Common Environmental Health Issues in Low Income Circumstances: Pests

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• Ants: more common if are moisture problems

• Rodents and cockroaches: food sources, multi-unit dwellings and sub-standard housing

• Bed bugs: multi-unit dwellings, reused furnishings, hoarding

• Response strategies need both of:

• Integrated measures to address underlying causes

• Low-toxicity or non-toxic pest control

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Re-cap: Potential for Greatest Exposure Air (indoors and outdoors)

→ indoor dustFoodConsumer products

(largely indoors) → indoor air and DUST

+ Location-specific Issues

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Context Matters

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• The number of chemicals and pollutants is overwhelming, with an obvious conclusion: context matters

• In the context of multiple exposures, potential for multiple effects, vast complexity, uncertainty and high stakes risks: we should exercise precaution and reduce exposures whenever possible

Calls for a more precautionary approach in environmental policy come most frequently when findings point to environmental risks to prenatal or child health.

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Drawing by Seaña Brennan, age 6

Part 2: What is needed?• Awareness• Advocacy• Research• Prevention• Precautionary policies• Application of legal rights

and remedies

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CPCHE/CELA Healthy Retrofits Project

Need: Experience with CELA clients, evidence in literature, results of outreach work → hazardous exposures during renovations can result from lack of awareness.

Opportunity: To improve on already valuable work to address climate change and improve energy affordability by adding emphasis on making buildings safer and healthier.

Age of housing - linear correlation. Canada-wide, as Socio-Economic Status drops, age of housing rises.

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Phases 2 and 3: Outreach Materials in Development and Promoting Uptake

Despite possible health risks, with greater awareness, are easy and low-cost measures can prevent exposure (with some exceptions).

Very positive outcomes: The “win-win” of renovations/retrofits that make homes more energy and cost efficient and healthier for children and their families.

Brochure – near final draft

Supported by on-line content esp. for tenants

Negotiations ongoing with outreach partners including utilities and municipal programs, and hopefully large retailers

Want information included in province-wide efforts directed at low income residents

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Getting help with mould problems

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• Minor problems can be corrected by residents (see e.g., Health Canada resource for First Nations: Mould and Your Health)

• Major problems need professional help

• Need to work with landlords, tenant/housing advocates, etc.

• Some government grant programs, e.g., RRAP

• Needs to be integrated into province-wide weatherization program

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Dealing with Pests: roles, rights and integrated remedies

Landlords are responsible for:

•Maintenance, including pest control. Thus, tenant may not have a say in pest control options.

•Pest control can include helping tenant to address problem – allows tenant to influence choice of controls

Tenants are responsible for:

•Maintaining clean unit to prevent pests

Both need to recognize:

•Pest control most effective with integrated approach including removing pest habitat, food sources, entryways, alongside control options such as pesticides.

•Non-toxic or lower toxicity options are often available including gels, baits or traps instead of sprays and physical methods like steam or combination of physical and chemical methods (to lower overall toxic exposures)

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Dealing with Pests: Least toxic methods, addressing underlying causes

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Ants

•Reading labels: ant traps using borax and peanut butter (benign choice so long as no peanut allergy)

•Are likely to be underlying moisture problems

Rodents and cockroaches

•Non-toxic techniques, bait traps vs sprays/open dishes of poison

•Control the food source and the entryways (maintenance issues)

Bedbugs

•Chemicals often ineffective; steam/high heat very effective

•Maintenance issues

•Problem of hoarding (mental health support system)

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Legal Tools – Division of Powers in CanadaFederal government has some responsibilities

pertaining to environmental healthProvinces and territories have othersMany powers operate in related areasAboriginal governments also have powers and

responsibilities; some of the federal statutes explicitly recognize these powers

Within provinces and territories, municipalities and local governments also have powers and responsibilities (delegated)

Actions are appropriate and necessary at each scale

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Jurisdictional opportunities These varying jurisdictions give rise to

matching opportunities for engagement and input in environmental health law and regulation:Local – regional or municipal input on matters

such as local programming or municipal by-laws Provincial – input as individuals, groups,

associations, professionals on specific agenda items such as provincial occupational health law or toxics regulation

Federal – recommendations for new substances, evaluation of efficacy of existing laws, testing of participation provisions

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Local to global – an exampleMost environmental health and equity concerns have key

elements which need attention by each of the jurisdictions

For example, in the case of reducing exposure to toxic substances, Municipalities may pass right to know by-laws as in

TorontoProvinces may pass a Toxic Reduction Act as in OntarioCanada may pursue regulation of toxic substances as

under CEPAThe international community may control some toxic

or hazardous substances under treaties like Stockholm or Basel

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Multi-scale environmental health issuesWe could give similar examples in other areas of

environmental health including energy poverty, management of garbage and waste, drinking water protection, pesticides control or healthy shelter and consumer products to name a few

Establishing international norms such as the World Health Organization in its definition of the determinants of health; programmatic action, such as by Canada under its health spending power and its support of research; provincial regulation of pollution; and programs by local health units are all examples of essential aspects of a comprehensive approach to these issues

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Overview of StatutesCanada Labour CodeCanadian Environmental

Protection ActHazardous Products ActConsumer Safety Products

ActPest Control Products ActFood and Drug ActOntario Occupational

Health and Safety ActOntario Toxic Reduction

Act

Ontario Environmental Protection Act and Ontario Water Resources Act

Ontario Municipal ActOntario Clean Water ActOntario Safe Drinking

Water ActHealth Protection and

Promotion Act (Ontario)Nutrient Management Act

(Ontario)

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Canada Labour CodePurpose of part II is to prevent accidents and

injury to health arising out of, linked with or occurring during course of employment

Priority is specified to first eliminate hazards, then reduce hazards, then provide personal protective clothing, equipment and materials

Every employer has a general duty to ensure that the health and safety at work of every employee is protected

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Canada Labour CodeEvery employer also has duty to ensure that

concentrations of hazardous substances in the workplace are controlled in accordance with prescribed standards (ie regulations)

Also that hazardous materials are stored, handled and labelled as per regulations

Material data safety sheets regarding controlled substances, ingredients on Ingredients Disclosure List, chemical identity of any substances that employer believes may be harmful

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Opportunities for Engagement – Canada Labour CodeReview Material Safety Data Sheets at the

workplace; ensure currencyEnsuring practices at the individual workplace are

consistent with the MSDS and other recommended practices

Provide feedback to employers or the party responsible for the MSDS (manufacturer or importer) if the information is incomplete

Monitor standard setting process and provide input into the Canada Labour Code regulations – subscribe to the Liason bulletins  [email protected].

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Canadian Environmental Protection ActHuman health is to be protected from risk of

adverse effects of toxic substances, pollution, waste, use of biotechnology

Long term human and human health benefits are to be considered in decisions

Government is required to act expeditiously to assess whether existing or new substances are toxic or capable of becoming toxic, and assess the risk they pose to the environment and human life and health

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CEPA PROVISIONSAn Environmental Registry is establishedWhistle blower protection for employees is set

outThe Ministers (Health and Environment) are

required to conduct research relating to hormone disrupting substances including re detection, effects, preventive, control and abatement

Minister of Health is required to conduct research regarding role of substances in illnesses or in health problems & distribute it to the public

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CEPA Opportunities for EngagementReview registry notices Review research conducted Suggest research needed to Environment

Canada and Health CanadaProvide input into standards and risk

management such as the Chemicals Management Plan

Call for extension of regulations; eg phosphorous in dishwasher soaps

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Hazardous Products Act - Medical professionals and confidentialityRegulations may specify that medical

professionals be supplied with MSDS information in order to make a diagnosis or deal with a medical emergency;

Regulations may also require medical professionals to keep such information confidential except for the purpose for which disclosed

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Canadian Consumer Products Safety Act (CCPSA)Just passed by House of Commons and has received

first reading in the SenateRepeals Part 1 (“Prohibited and Restricted

Products”) and Schedule 1 of Hazardous Products Act (prohibited products) to replace them with this new law

Addresses consumer products specificallyDefines consumer products as likely to be obtained

by an individual for non-commercial purposesProvides new definitions for controlled and

hazardous products remaining under HPA (non-consumer)

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CCPSA cont’dA new definition of “danger to human health or

safety” “unreasonable hazard — existing or potential — that is posed by a consumer product during or as a

result of its normal or foreseeable use and that may reasonably be expected to cause the death of

an individual exposed to it or have an adverse effect on that individual’s health — including an injury —

whether or not the death or adverse effect occurs immediately after the exposure to the hazard, and

includes any exposure to a consumer product that may reasonably be expected to have a chronic adverse effect on human health.” (emphasis added)

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CCPCA cont’dApplies to products both manufactured

within Canada and importedProvides for prohibitions on import, sale,

manufacture or advertising specified products – Schedule 2 carries over some items from Hazardous Products Act

General regulation making power may be applicable to any consumer products including provisions for warnings, recalls, as well as standards

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CCPCA cont’dNew general prohibition on manufacturing,

selling etc products that are a danger to human health or safety, or recalled products (either voluntary or ordered recalls)

Requirement to report incidents (such as accidents, recalls) to Minister

Minister may disclose to the public information about a danger to human health or safety that a consumer product poses

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Pest Control Products ActThis legislation allows the Minister to register a

pesticide in Canada if it is shown to have “acceptable value”; “value” is defined with reference to efficacy (in controlling

pests); effect on host organisms; and health, safety and environmental benefits, and social and economic impact

Minister has an obligation to minimize health and environmental risks and to encourage lower risk products and other measures

If a registration is granted, it is made conditional on the “label” which outlines the allowed uses and certain conditions of use such as protective wear and frequency of use, concentration limits allowed and other matters.

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Pesticide regulation but the federal government: not a safety guarantee• Reforms in last ten years have improved and

updated the law

• Most pesticide limits have been updated in light of modern risk assessment approaches

• Each chemical is assessed individually

• Evaluation does not account for exposure to multiple pesticides (in the environment, as residues on food, etc.) or to the reality of multiple chemicals in the environment

• Pesticides should not be considered safe just because they have been evaluated and been allowed for use.

• Assessment is of RISK not safety. Children often at greatest risk esp. if already have health concerns.

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Pest Control Products RegisterThe register contains information about

products, applications, registrations, re-evaluations and special reviews

Including active ingredients and uses allowed or sought;

Decisions on applications, conditionsInformation that was provided in support of

applications, information considered by the Minister, reports on evaluation of health and environment risks and value and other matters

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Pesticide Products Formulants and Contaminants of Health or Environmental ConcernThree lists are maintained by the regulationsFor example, a list of formulants that are of

concern due to the ability to cause anaphylactic – type reactions includes fish, wheat, tree nuts, soy, sulfites, crustaceans, sesame seeds and milk

The contaminants list includes certain dioxans and furans

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Food and Drug ActDefines cosmetic – for complexion, hair, skin,

teeth, including deodorants and perfumesDefines drug – referring to disease and

disinfection among other thingsDefines food – includes food or drink for

human beings, includes chewing gum and anything that may be mixed with food whatsoever

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Food and Drug Act cont’dStandards for food may be prescribed and

there is a prohibition on importing or inter-provincial conveyance unless consistent with the standard

Food may not be sold if subject to a list of drugs any of which were administered to the animals (including meat, eggs, milk)For example, clenbutarol (a steroid) or

chloramphenicol (an antibiotic)

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CosmeticsGeneral prohibition on sale of any cosmetic

that may injure health Standards may be prescribed; labels and

packages that may be mistaken for the standard are prohibited unless in compliance with those standards

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Ontario Occupational Health and Safety ActPart IV deals with Toxic Substances

Where a biological, chemical or physical agent, or combination is used or to be used in a workplace,

and its presence or manner of use is likely to endanger the health of a worker, in the opinion of the Director,

the Director shall order it be prohibited or limited or restricted as the Director specifies

Or subject to such controls and conditions such as work place practices, engineering controls and time limits as the Director specifies

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Occupational Health and SafetyToxic substances orders are to be posted; and

must identify the agents of concern and the reasons

Employer, worker or trade union may appeal to the Minister

Factors to be considered include interactions of agents, quantities, extent of exposure, availability of other processes or agents for the intended use, data regarding the effect on health, any regulatory criteria

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Occupational Health and SafetyNew biological or chemical agents are not to be used

in a workplace without submitting to the Minister the composition and generic names

Minister may require further information and assessment

Employers must ensure all hazardous materials in the workplace are listed and that current material safety data sheets are supplied (they must be updated at least every 3 years)

At the request of any person the Medical Officer of Health shall request a copy of a material safety data sheet and make it available to the person (and may not disclose the name of the person who requested it)

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Occupational Health and SafetyRegulations may require employers to assess

all agents in the workplace to determine if there are hazardous materials

If employer is advised a worker has an occupational illness, must advise Director, trade union and health and safety committee

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Occupational Health and SafetyAct has 34 regulations dealing with array of

specific contexts, including control of exposure to biological or chemical

agents; specific regulations for certain designated

substances such as arsenic, asbestos, vinyl chloride and others;

Regulations for farming, health care, teachers, eg regarding the WHMIS, Workplace

Hazardous Materials Information System

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Opportunities for Engagement – Ontario Workplace health and safetyInput regarding the workplace exposure

limits to toxic substancesSuggestions of new substances to assessSuggestions or requests for reviews of existing

standardsSuggestions for reviews of existing practices

and protective methodsSuggestions for reviews of potential for

interaction with other substances

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The Toxics Reduction Act (Ontario)Legislation passed in Ontario 2009Intent is to reduce use of toxics in air, land,

water and consumer productsFacilities will be required to track specified toxic

substances they use Facilities must develop plans to reduce use of

those toxics, and make summaries of the plans public

At least every five years the minister must consult and consider adding to the list of toxic substances

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Opportunities for engagement – Toxics Reduction ActGet involved in preparation of employers

toxic reduction auditing and preparation of plans

Review plans as they are developed in your vicinity

Review reductions achieved as reported in later years

Suggest additional substances to be added to the regulations under the Act

Ask Moe for reports of results of the BillCanadian Environmental Law Association 62

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Municipal Act (Ontario)Municipalities have extensive powers

regarding health, safety and nuisance, and regarding the natural environment

Municipalities have broad authority to govern their affairs as they deem appropriate

Municipalities may regulate for the health, safety and well being of the inhabitants of the municipality in matters not specifically provided in the Municipal Act

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Municipal Act - Opportunities for EngagementAt local level find out if any actions or by-

laws have been taken under Municipal Act powers such as Toronto’s recent Right to Know By-law

Suggest actions to the Municipality – eg mercury thermometer take back programs; more stringent sewer use by-laws; lead pipe replacement programs

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Clean Water Act (Ontario)Clean Water Act passed in 2006 to protect

sources of drinking waterSource protection planning areas are

established on a watershed basis and source protection planning committees must oversee the assessment of threats and risks to sources of drinking water

Threats that are significant require mandatory implementation of source protection plans which are to be approved by the Minister

Matters provided in the plans will supersede other legislation such as land use planning rules

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Safe Drinking Water Act (Ontario)Safe Drinking Water Act passed in 2002It imposes drinking water standards,

establishes rules for operators of facilities, for drinking water systems, for laboratories that do drinking water testing, and for training and certification of operators, among other matters

Adverse test results from treated water testing must be reported to system owner / operator, Ministry of Environment and medical officer of health and addressed

Testing and reporting must be made public

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Opportunities for engagement – Safe Drinking Water ActLook up water testing reportsAsk questionsKnow sources in your communityKnow how your local water is treatedProvide input for water system planning and

financing

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Health Protection and Promotion Act (Ontario)Mandatory public health programs include

community sanitation, safe drinking water, and prevention of communicable disease, among others

Other mandatory programs include disease prevention, including cardiovascular, cancer and others, and health services to infants, pregnant women in high risk categories and others

Complaints of health hazard in occupational or environmental health are investigated in conjunction with the relevant ministry

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Health Protection and Promotion Act (Ontario)Medical Officers of Health have a positive statutory

duty to keep themselves informed with respect to occupational and environmental health

Various ministries have obligations to supply information to the Medical Officer of Health

This Act now includes responsibility for Small Drinking Water Systems

Extensive order powers are provided under the Act, such as vacating premises, removing materials

Food premises inspection powers are providedCommunicable diseases responsibilities are set out

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Health Protection and Promotion Act (Ontario)HPPA provides the Medical Officer of Health

responsibility to determine potability of community’s water

Issuance of Boil Water Advisories or Drinking Water Advisories is by the Medical Officer of Health (pursuant to protocols developed by the Ministry of Health and Long Term Care)

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Opportunities for engagement – Health Protection and Promotion ActAsk health unit about the small water

systems inspection programLook at Drinking Water Advisories and Boil

Water Advisories – are there any trendsAsk questions of local medical officer of

healthSuggest environmental health issues be

included in programming

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Contact information

Canadian Environmental Law Association130 Spadina Ave., Ste. 301

Toronto, ON M5V 2L4Tel.: 416-960-2284

CELA web site: www.cela.caLow Income Energy Network:

www.lowincomeenergy.caCPCHE website: www.healthyenvironmentforkids.ca

PollutionWatch Website: www.PollutionWatch.orgWater Guardians website: www.thewaterhole.ca

Environment & Law Resource Library: www.ecolawinfo.org

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Acknowledgements

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• CELA and CPCHE Colleagues

• Legal Aid Ontario

• Ontario Trillium Foundation

• Law Foundation of Ontario

Theresa McClenaghan

Kathleen Cooper

Canadian Environmental Law Association www.cela.ca

[email protected] 705-324-1608

www.healthyenvironmentforkids.ca

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