Originally published in Blakes Bulletin on Environmental
Law, March 2012
In October 2011, we reported on an unprecedented decision by an
independent review board to recommend to Canada's Minister of
Environment that he reverse his decision to designate a chemical
substance as being toxic under the Canadian Environmental
Protection Act (CEPA) (to view our October 2011 article, click
here). The substance in question is
Decamethylcyclopentasiloxane, which is better known as Siloxane D5.
Siloxane D5 is an odourless, colourless liquid that is used in
consumer and industrial applications. It is mainly used in blending
and formulating personal-care products and cosmetics, and is an
intermediate in the production of polydimethylsiloxane silicone
On February 29, 2012, the Minister of the Environment announced his decision to accept the
recommendation of the Siloxane D5 Board of Review that found that
Siloxane D5 was not toxic to the environment as defined under CEPA.
He therefore annulled his predecessor's decision of January
2009 that concluded that Siloxane D5 was toxic and thereby eligible
for addition to CEPA's Toxic Substances List. This
unprecedented decision on the part of the Minister means that the
Canadian departments of Environment and Health, which are jointly
responsible for Canada's toxic substances program under CEPA,
have had to admit that they made a mistake in determining the
toxicity of one substance included in the government's
six-year-old Chemicals Management Plan and
"Challenge". This program targeted 200 priority
chemical substances for detailed toxic assessment and potential
The rarely convened Board of Review was established at the
discretion of the Minister of the Environment in August 2010 after
having received formal objections from industry representatives to
his predecessor's decision to conclude that Siloxane D5 was
toxic and to propose its addition to CEPA's Toxic Substances
List. Typically, very little would stand in the way of the next and
final step of finalizing a substance's addition to the list and
commencing a process of determining what risk management controls
and regulations would be applied to the substance and its use in
Canada. However, in this case, the Minister relented to industry
arguments that the government risk assessors were wrong and did not
have a sufficient or accurate scientific basis to conclude that
Siloxane D5 was toxic. It was also pointed out that new scientific
information had become available.
In the final analysis, the Siloxane D5 Board of Review provided
the Minister and all concerned with an independent and refreshing
review of the toxic assessment processes and modelling utilized by
both Environment Canada and Health Canada. Hopefully, the review
and the Minister's decision will lead to an improved and more
credible regulatory regime in this area.
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