Toxic Substances

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 272-296

272

CHA PTER 13

TOXIC SUBSTANCES

A. THE TOXICS CHALLENGE IN CANADA

The phrase from sawdust to toxic blobs has been used to descr ibe a long-

term transform ation in the Canadian pollution-control agenda.1 Public

concern with a generalized and traditional understanding of pollution

(visible emissions and discharges presumed to decompose without

harm if relea sed at “safe” levels) has given way to heightened anxiety

over long-term threats to human and environmental health from cer-

tain types of contaminants. The concept of toxic substances offers the

prospect of establishing some priorities for new regulatory and remed-

ial efforts. Numerous American in itiatives and references to “vir tual

elimination,” to “zero discharge of toxic chemical s,” and to t he pre-

cautionary principle are incre asingly part of these developments. For

its part, Europe h as proceeded further with the formulation of the an

initiative known as REACH for Registration, Evaluation, and Author-

ization of Chemicals, a program that will incre asingly inf‌luence chem-

icals management around the world.2

Designation of persistent toxics for special attention was an im-

portant step in the process of acknowledging that, if the environment

1 D. Chappell, From Sawdust to Toxic Blobs: A Consi deration of Sanctioning Strat-

egies to Combat Pollution in Can ada (Ottawa: Supply & Service s, 1989).

2 Marcos A Orell ana, “Europe’s REACH: A New Chapter in I nternational Chem-

icals Law” (200 6) 6 Sustainable Development Law and Polic y 21.

Toxic Substances 273

is contami nated, so, in time, will be the species, including humans,

who occupy the planet. But l abelling the category of persistent toxics

does not lessen the challenge of identifying the character istics and ul-

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

with toxics focuses on substances that are highly re sistant to natural

processes of deg radation even as they disperse through air, water, and

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

they may be capable of bringing about biological changes.3

Toxic chemicals, although t hey are understood to pose signif‌icant

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

def‌inition and assessment. It has sometimes been diff‌icult to determine

exactly wh at human and environmental h arm is caused by particular

toxic substa nces. Subst ances differ in deg ree of toxicity and i n ter ms

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

consequences appear. Moreover, toxicity varies in relation to concen-

tration, length, and conditions of exposure; some segments of the popu-

lation, child ren and the elderly, for example, may be more vulnerable

than others. To complicate understanding still further, toxicity m ay

be inf‌luenced by the presence of other substances in the env ironment,

with such combinations and thei r synergistic consequences remaining

largely unknown.

While toxic substances are numerous, historic limitations concern-

ing data on their use, distribution, and effects on the env ironment and

health have i nhibited a comprehensive regulatory response. Yet, dur-

ing the 1970s and 1980s, toxic contamination was recognized as a sig-

nif‌icantly more w idespread and int ractable problem than previously

suspected or acknowledged.4 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, demonstrated

the vul nerability of urban populations to toxic concentrations, just as

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

tario, and revelations concerning the contamination of numerous Arc-

3 See Environm ent Canada, The State of Canada’s Environme nt (Ottawa: Supply &

Service s, 1991) c. 21.

4 With advances i n science and in measurement t echniques, linkage s between

exposure a nd health impacts have often b ecome more apparent. See Theresa

McClenaghan e t al., “Environmental Stand ard Setting and Childr en’s Healt h in

Canada” (2003) 12 J. Envtl. L. & Pr ac 245; Devr a Davis, When Smoke Ran Like

Water: Tales of Environmental Decept ion and the Battle Against Pollution (New

York: Basic Books, 2002).