Toxic Substances

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 233-254

233

CHAPTER 13

TOXIC SUBSTANCES

1 D. Chappell, From Sawdust to Toxic Blobs: A Consideration of Sanctioning

Strategies to Combat Pollution in Canada (Ottawa: Supply & Services, 1989).

A. THE TOXICS CHALLENGE IN CANADA

The phrase from sawdust to toxic blobs aptly describes a long-term

transformation in the Canadian pollution-control agenda.1Public con-

cern with a generalized and traditional understanding of pollution (vis-

ible emissions and discharges presumed to decompose without harm if

released at “safe” levels) has given way to heightened anxiety over

long-term threats to human health from certain types of contaminants.

The concept of toxic substances offers the prospect of establishing

some priorities for new regulatory and remedial efforts. Numerous

American initiatives and references to “virtual elimination” or “zero

discharge of toxic chemicals” are increasingly part of these develop-

ments.

Designation of persistent toxics for special attention was an impor-

tant step in the process of acknowledging that, if the environment is

contaminated, so, in time, will be the species, including humans, who

occupy the planet. But labelling the category of persistent toxics does

not lessen the challenge of identifying the characteristics and ulti-

mately determining the contents of that category. In general, concern

with toxics focuses on substances that are highly resistant to natural

processes of degradation even as they disperse through air, water, and

234 ENVIRONMENTAL LAW

2 See Environment Canada, The State of Canada’s Environment (Ottawa: Supply &

Services, 1991), ch. 21.

3 J.F. Castrilli & C.C. Lax, “Environmental Regulation-Making in Canada:

Towards a More Open Process” in J. Swaigen, ed., Environmental Rights in

Canada (Toronto: Butterworths, 1981) at 349–59.

4 J. Ferguson, “Fuel Laced with Toxic Wastes Sold in Lucrative Scam” Globe and

Mail (8 May 1989) A1.

soil. They bioaccumulate within food chains, but even in trace

amounts they may be capable of bringing about biological changes.2

Toxic chemicals, although they are understood to pose significant

risks to ecosystems and to human health, have often resisted precise

definition and assessment. Analysts have found it difficult to determine

exactly what human and environmental harm is caused by particular

toxic substances. Substances differ in degree of toxicity and in terms of

the nature of their impact, as well as in the timing in which those con-

sequences appear. Moreover, toxicity varies in relation to concentra-

tion, length, and conditions of exposure. To complicate understanding

still further, toxicity may be influenced by the presence of other sub-

stances in the environment, with such combinations and their syner-

gistic consequences remaining largely unknown.

While toxic substances are numerous, historic limitations con-

cerning data on their use, distribution, and effects on the environment

and health have inhibited a comprehensive regulatory response. Yet,

during the 1970s and 1980s, toxic contamination was recognized as a

significantly more widespread and intractable problem than previously

suspected or acknowledged. Reference to a few much-discussed toxics

serves as a reminder of recent developments and provides a partial set-

ting for consideration of legal initiatives.

The displacement in 1988 of some 3,500 people as a consequence

of PCB storage problems at Saint-Basile-le-Grand, Quebec, demon-

strated the vulnerability of urban populations to toxic concentrations,

just as the 1985 PCB spill on the Trans-Canada Highway near Kenora,

Ontario, and revelations concerning the contamination of numerous

Arctic sites and mammal populations demonstrated that remoteness

was no guarantee of immunity. Although PCBs were already the sub-

ject of regulatory controls dating from the 1970s,3attention focused on

PCBs again in the late 1980s amidst considerable controversy over

storage, exports, appropriate disposal technology and costs, and the

tainted fuel scam (in which gasoline was being laced with PCBs as a

means of disposing of these wastes).4

Another symbolic episode in a decade of seemingly unexpected

encounters with chemical hazards involved the mid-1980s “toxic blob”