UN Enviroment Programme

Chapter 11. Status of soil pollution in North America

International, regional and national legal frameworks addressing soil pollution in North America

11.5.1. International legal frameworks addressing soil pollution

Table 4 shows the state of implementation of international conventions for each country and convention. Canada has adopted and implemented the Basel Convention through its Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Environment and Climate Change Canada, 2019e). Canada actively shares information on hazardous industrial chemicals and pesticides in international trade and allows the country to refuse certain imports of hazardous industrial chemicals and pesticides in accordance with the Rotterdam Convention. Canada manages exports through its Export of Substances on the Export Control List Regulations (Environment and Climate Change Canada, 2019f).

Table 4. International legislation adopted in the North America region.

Source: Basel Convention, 2021; Minamata Convention, 2021; Rotterdam Convention, 2021; Stockholm Convention, 2021.

Canada takes part in the technical body of the Stockholm Convention, POPs Review Committee (POPRC). Furthermore, it regulates POPs through the Prohibition of Certain Toxic Substances Regulations, 2012, the PCB Regulations, 2008, and the Pest Control Products Act, which prohibit the production and use of several POPs. The Export of Substances on the Export Control List Regulations control the export of POPs (Environment and Climate Change Canada, 2019g).

Canada took part in negotiating the Minamata Convention, signed the convention in 2013 and in 2017, following an implementation assessment, it was able to ratify and bring it into force (Environment and Climate Change Canada, 2019h).

The United States of America President signed the Basel, Rotterdam and Stockholm Conventions in 1990, 1998 and 2001, respectively. However, the operation of international treaties as United States of America law requires 2/3 of the American Senate to vote for ratification which has proven impossible due to political resistance and the need to revise landmark United States of America environmental legislation to align with convention requirements (USDOS, 2019). The United States of America largely follows convention protocols as a matter of internal policy and can reach formal convention agreements with individual countries (US EPA, 2019j). The United States of America was the first country to sign (2013) and ratify (2013) the Minamata Convention. The convention entered into force in 2017 (US EPA, 2019i).

11.5.2. Regional legal frameworks addressing soil pollution

The United States of America and Canada have one of the world’s oldest and most effective environmental partnerships. The US-Canada border includes four of the five Great Lakes, many rivers and lakes, major airsheds, and migratory routes for wildlife species. In addition, there are many United States of America Native American Tribes and Canadian First Nations residents whose culture spans the border.

The extensive border, diverse geography and ecosystems shared by the two countries requires close cooperation among many United States of America states, Canadian provinces, United States of America Tribes, First Nations, and local and federal governments. The two federal governments have implemented over 40 international agreements for the management and protection of environmental quality and ecosystems in the border area and there are over 100 additional such agreements between United States of America states and Canadian provinces. The two countries also share policies, programs, and goals to prevent and control pollution and to ensure sound policies and practices to protect and restore the many shared ecosystems.

The Canada–United States of America Joint Inland Pollution Contingency Plan (the “Inland Plan”) is the only joint agreement directly focused on soil pollution. The plan implements measures to deal with the release of contaminants when the amount poses a risk to the environment and human health and when it occurs along the border between the two countries (US EPA, 2019k). However, other major agreements with a greater focus on water quality implicitly address soil pollution through the requirements to consider water pollution derived from upland watershed inputs.

The North American Free Trade Agreement’s (NAFTA) Technical Working Group (TWG) on Pesticides has over 15 years of cooperation in pesticide regulation involving Canada, Mexico and the United States of America and has resulted in measurable success in the harmonization of pesticide regulation in North America. TWG regulatory authorities in Canada and the United States of America include Health Canada’s Pest Management Regulatory Agency (PMRA); the US EPA Office of Pesticide Programs (OPP). The five-year strategy promotes equal access and the simultaneous introduction of pest management tools, including the alignment of Maximum Residue Limits (MRL) across jurisdictions. Furthermore, the strategy encourages cooperation on joint reviews of new pesticides and their uses, as well as the reevaluation/re-registration of pesticides to increase efficiency and quality of decision-making (NAFTA, 2016).

The regional agreements with relevance to soil pollution prevention in North America are presented in Table 5.

Table 5. Regional agreements related to soil pollution prevention in North America

11.5.3. National legal frameworks addressing soil pollution

Canada lacks a national soil policy, but has a set of incentives, nonbinding guidelines and binding regulations that together form a soil legislation framework between its 10 provinces and 3 territories. The non-binding guidelines and incentives are mainly applied in agriculture, while the binding regulations are used when dealing with polluted soils.

The Canadian Council of Ministers of the Environment (CCME), which is a body of 14 federal, provincial, and territorial ministers of environment, has set a series of soil quality guidelines and standards. In 1996, it produced a Protocol for the Derivation of Environmental and Human Health Soil Quality Guidelines, which emphasized the need to consider the direct or indirect effects of contaminants on human health, ecosystems and land use. Following the protocol, in 1997, the Recommended Canadian Soil Quality Guidelines were published for specific chemicals (currently 33 guidelines exist). Furthermore, in order to harmonize the environmental protection standards and protection measures by governments across Canada, the CCME, except for Québec, signed the Canada-wide Accord on Environmental Harmonization (the Accord) in 1998. This led to the adoption of the Canada-Wide Standards for Petroleum Hydrocarbons (PHC CWS) in 2001, which sets standards for PHC polluted sites (CCME, 2018; Farnese, 2019).

The Government of Canada has developed the Federal Contaminated Sites Action Plan (FCSAP) to manage polluted sites under its responsibility. Federal polluted sites can vary greatly and include airports, lighthouse stations, military bases, and abandoned mines. FCSAP may contribute to the restoration of federal brownfields for future use if they are eligible for program funding.

The Canadian Chemicals Management Plan (CMP) is a jointly managed initiative of Health Canada and Environment and Climate Change Canada (ECCC) (Health Canada, 2020) that assesses environmental and human health risks posed by chemical substances and organisms and managing toxic substances according to the risks they present to human and environmental health. The CMP has been funded in three phases since its inception in 2006, with the final phase sunsetting in March 2021. 23 000 existing chemical substances on the Canadian Domestic Substances List (DSL) were evaluated resulting in approximately 4 300 priority substances that were suspected to be inherently toxic to humans or to non-human organisms, and persistent or bioaccumulative, or that present the greatest potential for exposure to Canadians, and as a result required further assessment. Each substance was assigned a priority level, with approximately 500, 2 600, and 1 200 substances classified as high, medium, and low priority, respectively. The substances can then be regulated via using appropriate combinations of the Canadian Environmental Protection Act (CEPA), the Pest Control Products Act (PCPA), the Food and Drugs Act (F&DA), the Fisheries Act (FA), the Hazardous Products Act (HPA), and the Canada Consumer Product Safety Act (CCPSA). In addition to risk assessment and risk management, other core CMP functions or activity areas are compliance promotion and enforcement, research, monitoring and surveillance, stakeholder engagement and risk communications, and policy and program management. Although the current CMP is due to sunset in March 2021, the need for an ongoing federal chemicals management program is clearly identified.

Canada has federal policies that also contribute to the prevention of future polluted sites, which are: Canadian Environmental Protection Act (CEPA, 1999), Fisheries Act (1985), Canadian Environmental Assessment Act (2012), Nuclear Safety and Control Act (1997), Mine Site Reclamation Policy for the Northwest Territories (2002) and Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations (1998) (Environment and Climate Change Canada, 2019a). In addition, provincial, territorial and municipal governments enact local legislation in specific environmental areas.

The Canadian Environmental Protection Act (CEPA), 1999, provides regulations and procedures to manage substances considered toxic, and therefore a risk to human health and the environment, in order to prevent pollution and address potentially hazardous chemicals. The CEPA contains principles such as prevention, precaution, science-based decision making, and polluter pays principle. The CEPA provides the government with the authority to control the movement of hazardous waste, hazardous recyclable material and non-hazardous waste. The CEPA also requires the production of a pollution prevention plan for a number of toxic substances by industry to facilitate voluntary reduction and safe disposal of hazardous waste (Environment and Climate Change Canada, 2017c). In 2006, the CCME prepared a set of guidelines on Hazardous Waste Landfills to harmonize waste management in Canada.

The Canadian Impact Assessment Act (2019) is the legal basis for the federal environmental assessment process. The Act sets out the responsibilities and procedures for carrying out the environmental assessments of projects which involve federal government decision making (Legislative Services Branch, 2019).

The Nuclear Safety and Control Act (NSCA), Nuclear Fuel Waste Act (NFWA), Nuclear Liability Act, and the Nuclear Energy Act regulate the management of radioactive waste in Canada under the auspices of the Canadian Nuclear Safety Commission (CNSC). The nuclear industry must comply with the Canadian Environmental Assessment Act, the Canadian Environmental Protection Act (Environment and Climate Change Canada, 2019i).

The Pest Control Products Act (2006) provides regulations and requirements to limit pesticide effects on health and the environment. Pesticides under the Pest Control Products Act must undergo a risk assessment before initial use is allowed and periodically afterwards for post-market risk management (Health Canada, 2019c).

All fertilizers and supplements are regulated by the Canadian Food Inspection Agency (CFIA) under the Fertilizers Act and Fertilizers Regulations (1985). Under the Act, the agency must assess all active ingredients, including potential contaminants or products contained in the fertilizer. Furthermore, direct or indirect impact assessments are also carried out after application of the product. Fertilizers already on the market are continuously monitored to control whether safety standards are met (Canadian Food Inspection Agency, 2018). To regulate the use of agricultural wastes such as manure to limit runoff of nutrients and maintain soil productivity, British Columbia has implemented the Agricultural Waste Control Regulation, while Alberta, Manitoba and Saskatchewan applied a Tri-Provincial Manure Application and Use Guidelines for a sustainable use of manure (Farnese, 2019).

Although the United States of America has no legislation addressing soil pollution exclusively, soil protections are woven into all major environmental legislative actions. Additionally, each of the 50 states have individual environmental laws applicable within its jurisdiction. The United States of America federal law generally provides the basis for state law, but states do have the ability to craft more stringent regulations for themselves. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), i.e., Superfund, and the Resource Conservation and Recovery Act (RCRA) are two federal laws that tackle polluted sites in order to protect human health and the environment. CERCLA uses criteria to identify the country’s most toxic sites which are then listed on the Superfund National Priorities List (NPL) (US EPA, 2019o). High-priority remediation sites identified under RCRA criteria are included in the RCRA Cleanup Baseline (US EPA, 2008).

CERCLA, provides a framework for federal guidance and funding to clean up uncontrolled or abandoned hazardous-waste sites and accidents, spills, and other emergency releases of contaminants into the environment. Through CERCLA, the EPA has federal authority all 50 states and United States of America territories to ensure that clean up measures are taken. The EPA has the authority to respond directly and to take all necessary actions to find the party responsible for the pollution, seek financial redress and to remediate the site, but typically works with state environmental agencies to implement cleanup operations. At orphan sites where responsible parties cannot be identified or located CERCLA itself can provide funds to clean up the site.

In 1986, the Superfund Amendments and Reauthorization Act (SARA) reinforced CERCLA to continue cleanup activities throughout the country and the Emergency Planning and Community Right-to-Know Act (EPCRA) (US EPA, 2019c) established requirements for federal, state and local governments, Indian tribes, and industry regarding emergency planning and “Community Right-to Know” reporting on hazardous and toxic chemicals (US EPA, 2017a).

The Resource Conservation and Recovery Act (RCRA) approved by Congress in 1976 and implemented by the EPA and partner states, tribes and local governments, has as its main objective the management of hazardous and solid wastes to prevent releases to the environment. Three distinct programs were developed: the hazardous waste program, which controls hazardous waste from its creation to its disposal, including the clean-up phase; the solid waste program, which guides states towards the development of infrastructure to manage nonhazardous industrial solid and municipal solid waste; and the underground storage tank (UST) program (US EPA, 2014a).

Several other acts have been passed in Congress relating to pollution prevention, assessment and clean up. The 1970 Clean Air Act (CAA) and 1972 Clean Water Act (CWA), respectively, regulate the release of contaminants to the atmosphere and surface waters from facilities and assesses air and surface water quality standards. The CWA made it illegal to discharge contaminants into surface waters. However, industrial, municipal and other facilities can release contaminants directly to air and surface waters if they permitted under the National Pollutant Discharge Elimination System (NPDES).

The 1982 Nuclear Waste Policy Act (NWPA) supports the use of geologic repositories for the storage of radioactive waste by outlining the procedures for site evaluation and selection, a responsibility of the Department of Energy (DOE). Furthermore, it assigned the EPA the role of developing standards for offsite releases of radioactive materials to protect the environment (US EPA, 2019l).

The 1990 Pollution Prevention Act (P2) aims to reduce the amount of pollution from facilities through cost-effective changes in the production, operation, and use of raw material. Under the P2 Act, facilities are required to include information on pollution prevention and other waste management activities involving TRI chemicals in their annual reports (US EPA, 2017c).

The 1970 National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. The range of actions covered by NEPA is broad and includes, making decisions on permit applications, adopting federal land management actions, and constructing highways and other publicly owned facilities. Using the NEPA process, agencies evaluate the environmental and related social and economic effects of their proposed actions. Agencies also provide opportunities for public review and comment on those evaluations.

The Oil Pollution Act (OPA) of 1990 reinforced the EPA’s authority to prevent and respond to catastrophic oil spills. A trust fund financed by a tax on oil is available to clean up spills when the responsible party is unable or unwilling to do so. Under the OPA, oil storage facilities and vessels are required to submit plans to the federal government on how they will respond in the event of a large oil spill (US EPA, 2019h).

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA regulates the distribution, sale, and use of pesticides in the United States of America. However, in 1996, the EPA was requested to improve its risk assessments under FIFRA by reassessing the pesticides already on the market with the new safety standards under the new Food Quality Protection Act (FQPA). In particular, it was requested to consider the sensitivity of children to pesticides by adding a tenfold (10X) safety factor (US EPA, 2019m).

In 2016, the Lautenberg Chemical Safety Act amended the Toxic Substances Control Act (TSCA), the country’s first chemical management law, by adding stricter requirements for the evaluation of chemicals, such as clear and enforceable deadlines, risk-based assessments and increased transparency regarding information on chemicals. The specific chemicals assessed by the Act are polychlorinated biphenyls (PCBs), asbestos, radon and lead-based paint (US EPA, 2019n).

The Soil Conservation and Domestic Allotment Act of 1936, specifically designed as an agricultural conservation program, exists to help protect soil from erosion.

The national legislation addressing soil pollution prevention and management are presented in Table 6.

Table 6. National legislation to prevent and combat soil pollution in North America