Docket: T-1707-13
Citation:
2016 FC 466
Ottawa, Ontario, April 25, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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GOODYEAR CANADA
INC.
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Applicant
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and
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THE MINISTER OF
THE ENVIRONMENT
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THE MINISTER OF
HEALTH
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Since 1999, Canadian authorities, scientists,
and private companies have been reviewing and assessing the environmental and
health impact of the industrial use of an antioxidant compound called BENPAT
(short for N,N’-mixed phenyl and tolyl derivatives of 1,4-benzenediamine). The
applicant, tire manufacturer Goodyear Canada Inc, is the largest user of BENPAT
in Canada. Goodyear uses BENPAT to increase the durability and safety of its
tires.
[2]
In 2011, the two responsible Ministers, the
Environment Minister and the Health Minister, found that BENPAT was toxic and
should be added to the List of Toxic Substances under Schedule I of the Canadian
Environmental Protection Act, SC 1999, c 33, [CEPA] (provisions cited are
set out in an Annex). Goodyear then requested that the Environment Minister
convene a board of review under Part 11 of CEPA, to reassess that conclusion,
relying on new studies. The Minister refused on the basis that the new data did
not affect her earlier conclusions about the release of BENPAT to the
environment both as a result of tire road-wear and industrial releases into
water.
[3]
Goodyear challenges the Minister’s refusal to
convene a board of review, arguing that the decision was not arrived at fairly
and, in any case, was unreasonable in light of the evidence before her.
Goodyear asks me to quash the Minister’s decision and order her to establish a
board of review.
[4]
In my view, the Minister arrived at her decision
fairly after giving stakeholders, including Goodyear, numerous opportunities to
make submissions on the issues before her. In addition, I am satisfied that the
Minister’s decision was not unreasonable on the evidence. The Minister did not
overlook or unreasonably discount the relevant scientific evidence. Accordingly,
I will dismiss this application for judicial review.
[5]
There are two main issues:
1.
Was the Minister’s decision unreasonable?
2.
Did the Minister breach a duty of fairness owed
to Goodyear?
[6]
In addition, there is a preliminary issue
regarding the admissibility of three affidavits filed by Goodyear on this
application.
II.
Statutory Framework and Factual Background
[7]
The Ministers of the Environment and Health jointly
determine which substances are potentially toxic to human health and the
environment. Toxic substances are those that present the greatest potential for
exposure, and are inherently toxic and persistent (ie, take a
long time to break down) or bioaccumulative (ie tend to accumulate in
the tissues of living organisms) (s 73). In 2006, the Ministers found BENPAT to
be inherently toxic, persistent, and bioaccumulative, and the compound became a
high priority for a subsequent mandatory screening assessment (s 74). The
Ministers notified stakeholders of their finding by way of a publication in the
Canada Gazette Part I.
[8]
Later, in 2009, the Ministers announced that a
draft screening assessment would be published no later than October 2010. They
contacted stakeholders, including Goodyear, requesting information on BENPAT.
Goodyear was specifically asked to provide copies of technical studies it had sponsored
and was granted extensions to make its submissions.
[9]
Officials within Environment Canada reviewed the
evidence filed and conducted their own research on BENPAT. The draft screening
assessment was also provided to a panel of scientists (the Challenge Advisory
Panel) which was charged with providing advice on the application of the “precautionary principle” and the “weight of evidence approach”, both of which are
recognized in CEPA (preamble and ss 2, 76.1). The Panel found that those
guiding principles had been appropriately weighed in the draft screening
assessment, and agreed with the assessment’s proposed conclusion that BENPAT
may have a harmful effect on the environment or on biodiversity, and that it
may be both persistent and bioaccumulative.
[10]
The Ministers published a summary of the draft
screening assessment on October 2, 2010 in the Canada Gazette Part I. Based on
the assessment’s conclusions, the Ministers proposed that BENPAT be added to
the List of Toxic Substances. A 60-day public comment period followed. Goodyear
and other stakeholders provided further information and data during that
period. Environment Canada officials also met with representatives from
Goodyear, and the parties exchanged documents.
[11]
Based on this further review, a final assessment
report was published concluding that BENPAT did not meet the criteria to be
considered bioaccumulative. However, the other conclusions relating to harm,
biodiversity and persistence from the draft screening assessment were
confirmed. The final assessment included consideration of additional evidence both
from Environment Canada and from Goodyear, and removed reference to a study
that Goodyear claimed was outdated.
[12]
In 2011, based on the final screening assessment,
a summary of the public comments on the draft assessment, and departmental
responses to those comments, the Ministers published a Notice in the Canada
Gazette Part I stating that BENPAT may be harmful to the environment, meeting
the statutory definition of toxicity in s 64(a) of CEPA, and that they would be
proposing to the Governor in Council to add BENPAT to the List of Toxic
Substances. This was a final decision. The Governor in Council approved the
Ministers’ proposal and published a proposed order to add BENPAT to the List of
Toxic Substances (under s 90(1)). This led to another 60-day public comment
period (s 332(1)).
[13]
In response to the Governor in Council Order,
Goodyear filed a notice of objection and asked the Minister to establish a
board of review (pursuant to ss 332, 333). In an 11-page submission, Goodyear provided
additional information and maintained that the screening assessment relied on a
poor model for predicting emissions, made unrealistic assumptions, failed to take
into account some of BENPAT’s inherent properties (eg, low solubility), and
ignored the fact that BENPAT was not toxic to aquatic organisms at
concentrations lower than its maximum solubility.
[14]
The departmental officials reviewed the notice
of objection and prepared a Technical Analysis in response, completed in July
2013. In particular, at Goodyear’s urging, officials reviewed a 2010 study on
chemical emissions from tire manufacturing. This emission data was also included
in a later 2012 tire study and showed that releases of BENPAT into the
environment were likely lower than was estimated in the final screening
assessment. Still, the authors of the Technical Analysis did not accept
Goodyear’s objections or depart from the overall findings of the final
screening assessment.
[15]
In September 2013, the Minister concluded, based
on the Technical Analysis, that a board of review should not be convened
because no new scientific data or information had been provided that would
contradict the conclusions of the final screening assessment.
III.
Issue One – Are Goodyear’s affidavits
admissible?
[16]
Goodyear asks me to consider three affidavits on
this application for judicial review that were not before the Minister when the
decision was made not to convene a board of review. Goodyear contends that the
affidavits merely provide background and context, not new evidence. The
respondent argues that the affidavits are inadmissible because they address the
merits of the Minister’s decision, emphasizing and repeating Goodyear’s grounds
for disputing that decision, and contain evidence that was not before the
Minister.
[17]
I find that that the affidavits, in part,
provide useful information about some of the scientific assumptions underlying
the Minister’s decision. However, to the extent that they go beyond that subject,
I will disregard them. The following is a summary of the relevant contents of
the affidavits.
[18]
Dr Keith Solomon, who previously served on a board
of review (regarding Siloxane D5), states in his affidavit that the decision to
add BENPAT to Schedule I of CEPA was not based on the best available scientific
information at the time. In particular, it did not take account of the fact that
an inherent property of BENPAT is that it naturally transforms into other
products and, therefore, should not be regarded as persistent in the
environment. Dr Solomon explains that BENPAT oxidizes in the presence of oxygen
and ozone, in preference to rubber, thereby extending the life of rubber
products, such as tires. This reaction, he says, shows that BENPAT readily transforms
into other products. Had the authors of the screening assessment taken this
into account, he maintains, its conclusions would have been different.
[19]
Dr Solomon also claims that the screening
assessment ignored other properties of BENPAT – low solubility, a tendency to
partition into hydrophobic organic materials (like rubber), and to exist as a
solid at temperatures lower than 90°C. These characteristics, says Dr Solomon,
suggest that BENPAT will resist release from rubber into water or air. The screening
assessment, in his view, overestimated the amount of BENPAT that would be lost
to water during commercial and consumer use.
[20]
Most strikingly, Dr Solomon says that the test
on which the assessment relied for data on water entering wastewater treatment facilities
– the so-called Mega Flush test – “does not pass the
laugh-test”. He views the Mega Flush test as inapt for purposes of
addressing the release of BENPAT through contact with water. It is suitable
only for down-the-drain consumer products.
[21]
In a very detailed analysis of the available
data, Dr Frank Gobas confirms Dr Solomon’s opinion that Environment Canada did not
adequately consider the solubility and sorptive capacities of BENPAT. He agrees
that the Mega Flush test results were not detailed or well-supported. In his
view, a board of review should have been convened because the screening
assessment did not take account of data found to be significant by a previous
board of review (Siloxane D5).
[22]
Goodyear also filed an affidavit sworn by Ms
Julie Panko, a Certified Industrial Hygienist. She believes the screening
assessment was not based on the best available evidence and that Environment
Canada had not justified its reliance on less reliable data. For example, the
assessment relied on a 2004 OECD technical paper whose assumptions were later,
in 2009, shown to be incorrect. In addition, Environment Canada did not take
into account studies showing the relatively low risk posed by tire road wear
particles. In her view, the best available data shows that industrial releases
of BENPAT do not pose a risk to the environment. Ms Panko agrees with Dr
Solomon that the Mega Flush test results are not verifiable.
IV.
Issue Two – Was the Minister’s decision
unreasonable?
[23]
Goodyear contends that the Minister’s decision
was not supported by the best available evidence and was, therefore,
unreasonable. Goodyear points specifically to the evidence of its experts,
summarized above, as well as the conclusions of the Siloxane D5 board of
review, in support of this argument.
[24]
It is not the role of the Court to resolve
disputes among scientists. Rather, the question is whether the Minister’s
decision falls within the range of possible, acceptable outcomes that can be
defended with reference to the facts and the law. In my view, the Minister’s
decision not to appoint a board of review falls within that range.
[25]
As outlined above, Goodyear’s experts faulted
the conclusions of the screening assessment for its alleged failure to
recognize some of BENPAT’s inherent physical and chemical characteristics (eg,
insolubility, boiling point, oxidation, etc.) and for the assessment’s reliance
on questionable test data (eg, Mega Flush). In my view, these opinions amount
mainly to disputes about the weight and value of some of the evidence analyzed
in the screening assessment. They do not persuade me that the Minister’s
decision was unreasonable.
[26]
In particular, the screening assessment did not
ignore the physical and chemical properties of BENPAT. It repeatedly cited
those properties in the analysis of BENPAT’s potential impact on the
environment. In fact, a section of the assessment is entitled “Physical and Chemical Properties” and includes a
table setting out BENPAT’s melting point, boiling point, water solubility and
other relevant characteristics. The text notes that solubility “is one of the key parameters in the characterization of the
chemical’s fate when it is released into the environment”. It
specifically refers to BENPAT’s low solubility in water. The assessment also
mentions BENPAT’s antioxidant properties and the mechanism by which it prevents
degradation of rubber products, such as tires and hoses.
[27]
I cannot conclude, therefore, that the screening
assessment failed to take account of BENPAT’s inherent physical and chemical
properties.
[28]
Goodyear’s experts also discounted the value of
certain modeling data cited in the screening assessment, most particularly the
results of the Mega Flush test. This criticism was also set out in Goodyear’s
notice of objection and addressed in the Technical Analysis. The latter
explained that, where possible, “available evidence
regarding intrinsic properties of BENPAT, its quantities in commerce and
estimations of potential environmental releases, was critically reviewed and
used as weight of evidence in preparation of the risk quotients for this
substance”. However, in some cases, in the absence of real-world data,
models such as Mega Flush were used and applied in a precautionary fashion:
Assumptions made
in Mega Flush scenarios remain protective in light of the many uncertainties
encountered with respect to BENPAT releases to water compartment from consumer
uses. These include lack of data for characterization of tire road wear run-off
in stormwater, variability of stormwater management practices across Canada and
impact of these practices on BENPAT removal.
[29]
Goodyear correctly points out that the Siloxane
D5 board of review found that the Mega Flush test (and others) that had been
relied on in the screening assessment for that compound were limited and likely
inaccurate. However, the board came to that conclusion only after reviewing
more recent and more reliable data: “Now that empirical monitoring data are available, the Board gave
greater weight to these measured values than the initial estimates made by the
Mega Flush model . . .”. That board did not conclude that the Mega Flush
model was so unreliable that it should not be used at all.
[30]
Accordingly, I find that the Minister arrived at
a reasonable conclusion on the evidence that was before her, including Goodyear’s
numerous and substantial submissions.
[31]
Goodyear also contends that the Minister’s
decision not to convoke a board of review was unreasonable because it was based
on a standard that is not provided for in CEPA and, in fact, is incompatible
with the statutory scheme.
[32]
I am satisfied that the Minister applied an
appropriate standard and that the decision was not unreasonable on the
evidence.
[33]
The Minister declined Goodyear’s request for a
board of review on the basis that its notice of objection “did not bring forth any new scientific data or information
that would support a change in the conclusion of the assessment”. Goodyear
suggests that this standard amounts to the Minister saying “You need to convince me that my staff reached the wrong
conclusion in their screening assessment or I will not appoint a board of
review”. Goodyear contends that such a test is inappropriate because:
•
In effect, it would require Goodyear to show
that BENPAT was not harmful to the environment. If Goodyear were able to
accomplish this through its notice of objection, the Minister would then simply
reverse its finding and therefore a board of review would be unnecessary,
indicating a redundancy in the legislation;
•
It imposed a burden on Goodyear to persuade the
very same officials who drafted the assessment, who had already made up their
minds about BENPAT;
•
It is unlikely that an affected party could come
up with new data within the statutory 60-day period;
•
A challenge demonstrating that previous data
were unreliable would be insufficient as Goodyear would have to present “new”
data in order to be granted in its request;
•
It is contrary to the emphasis in CEPA on
participation by stakeholders and other members of the public; and
•
It is inconsistent with the tests applied in
relation to other requests for a board of review.
[34]
I disagree with Goodyear’s characterization of
the Minister’s test. In my view the test amounts to the following: “You have had numerous opportunities to present evidence
supporting your position and to challenge the data on which the screening
assessment was based, all of which has already been considered. Your notice of
objection does not raise anything new that would affect the conclusion reached
in that assessment. Therefore, I have decided not to establish a board of
review”. In other words, the Minister’s threshold must be read in the
context of the entire process leading up to the decision, not in isolation.
[35]
It follows that I do not accept
Goodyear’s submission that the Minister’s test would be impractical to apply
and would render boards of review redundant. Nor does it conflict with CEPA’s
emphasis on participation. Nor does it depart substantially from the test
applied in relation to other decisions declining to convene boards of review,
all of which required new evidence that would justify appointing a board of
review. While the Minister may have articulated a slightly higher standard here
by adding that the new evidence “would support a change
in the conclusion”, it was not, in the circumstances, an unreasonable
test to apply given all the opportunities provided to Goodyear to file evidence
and submssions throughout the process leading up to the Minister’s decision. In
fact, this was explained to Goodyear in the Technical Analysis responding to
Goodyear’s notice of objection:
Since a board of review would be essentially revisiting and
repeating much of the work that went into the multi-step, consultative process
that led to the proposed Order, it is reasonable for the Minister(s) to expect
that the notice of objection be accompanied by new information that provides
credible, compelling evidence that carrying out a review will justify the delay
and expense that would be incurred.
V.
Issue Three – Did the Minister breach a duty of
fairness owed to Goodyear?
[36]
Goodyear submits that the Minister had an
obligation to treat it fairly when deciding whether to convene a board of
review. The Minister failed to discharge that duty, according to Goodyear, by failing
to disclose a 2012 tire study showing that industrial releases of BENPAT may be
lower than estimated in the screening assessment.
[37]
I disagree with Goodyear’s submission. The
Minister did not owe Goodyear a duty of fairness; even if such a duty existed,
the Minister did not, in the circumstances, breach it.
[38]
The Minister did not make an administrative
decision relating to Goodyear’s rights, privileges or interests. Rather, the
Minister’s decision was a general one relating to the regulatory treatment of a
chemical compound taking into account the overall public interests at stake.
Neither the Minister’s decision whether to convene a board of review, nor the mandate
of the board itself, relates to individual rights, interests or privileges (Syncrude
Canada Ltd v Canada (Attorney General), 2014 FC 776 at para 158).
[39]
Goodyear complains that Environment Canada was
clearly aware of the 2012 tire study as it was specifically cited in a risk
management update statement released just two days after the Minister’s
decision not to convoke a board of review, yet the study was not cited in the screening
assessment and was not disclosed to Goodyear until after the Minister had made
her decision. The Minister’s conduct was contrary, says Goodyear, to its
legitimate expectation that the Minister would consider all available
scientific evidence as part of the weight of evidence approach, and to its
entitlement to know the case it had to meet in order to persuade the Minister
to strike a board of review.
[40]
In fact, as mentioned above, the 2012 tire study
was based on data contained in an earlier 2010 study that was provided to
Goodyear and taken into account by the Minister. That data simply did not allay
Environment Canada officials’ concerns about industrial releases of BENPAT into
the environment.
[41]
I cannot conclude, therefore, that the Minister
breached any duty of fairness to Goodyear. In fact, as outlined above, Goodyear
had many opportunites to participate in the process leading up to the
Minister’s decision. It was not treated unfairly.
VI.
Conclusion and Disposition
[42]
While Goodyear was not owed a duty of fairness
by the Minister, it was, in fact, treated fairly in the process leading up to
the Minister’s decision not to convene a board of inquiry into BENPAT’s impact
on the environment. Further, given the extent of that process and the opportunities
given to Goodyear to participate in it, I cannot conclude that the Minister
applied an unreasonable test when she decided that, before appointing a board
of review, Goodyear needed to provide evidence that would support a change in
the screening assessment’s conclusions. Finally, the Minister’s decision was
not unreasonable based on the evidence before her about BENPAT’s physical and
chemical properties and its potential effect on the environment. Therefore, I
must dismiss this application for judicial review, with costs.
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