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Consultation Document

Draft Prohibition of Certain Toxic Substances Regulations, 2008

Environment Canada

Environment Canada is undertaking consultations on the draft Prohibition of Certain Toxic Substances Regulations, 2008 (2008 Regulations). The draft 2008 Regulations, made pursuant to subsection 93(1) of the Canadian Environmental Protection Act, 1999 (CEPA 1999), would prohibit the manufacture, use, sale, offer for sale and import of certain toxic substances and would repeal and replace the Prohibition of Certain Toxic Substances Regulations, 2005 (2005 Regulations). The proposed changes to the 2005 Regulations, contained in the draft 2008 Regulations, are summarized in this document, and where applicable, proposed wording for the draft 2008 Regulations is included.

The key changes include:

  • addressing a request from the Standing Joint Committee on the Scrutiny of Regulations to ensure terminology that is consistent with the terminology used in section 93 of CEPA 1999 and to ensure consistency between the French and English versions,
  • clarifying the requirements of the prohibition of substances and products listed in Schedule 2, Part 1,
  • modifying the reporting requirements to ease unnecessary burden to industry, and
  • clarifying the text by making administrative amendments.

1. Proposed modifications in response to recommendations from the Standing Joint Committee on the Scrutiny of Regulations (SJCSR)

a) Terminology consistent with the terminology used in section 93 of CEPA 1999

In response to the recommendations of the SJCSR, it is proposed that the word "mixture" be removed throughout the Regulations for consistency with the wording in section 93 of CEPA 1999. The 2005 Regulations were made under section 93, in which there is reference to "substance" and "product" only, not to "mixture." For this reason, the SJCSR recommended the removal of this term so that there could no longer be a perception that the 2005 Regulations go beyond the regulatory authority set under section 93 of CEPA 1999.

b) Consistency of the French and English versions

For the purpose of harmonizing the English and French versions of the Regulatory text, the following changes are being proposed:

  • Remove the word "continued" from paragraph 6(4)(c), and Schedule 4, section 6, of the English version of the 2005 Regulations.
  • Remove the word "identification" from paragraphs 2(d) and 3(e) of Schedule 4 and section 3 of Schedule 5 of the English version of the 2005 Regulations and replace it with the word "name."

2. Prohibition of substances and products listed in Schedule 2, Part 1

Proposed modifications to section 5 of the 2005 Regulations would clarify the requirements regarding the prohibition of the toxic substances listed in Schedule 2, Part 1. The revised wording would ensure that it is explicit that the prohibition applies to the toxic substances listed in Schedule 2, Part 1, as well as to the listed products containing any of these toxic substances above the specified concentration limit. The wording would also make it clear that the prohibition applies even when the substance is present incidentally.

Current wording in Section 5:

"5. Subject to section 6, no person shall manufacture, use, sell, offer for sale or import

  1. a toxic substance set out in column 1 of Part 1 of Schedule 2 if it is present, incidentally or not, in a mixture or product set out in column 2 and if the concentration of the toxic substance in the mixture or product exceeds the limit set out in column 3;"

Proposed wording for Section 5:

"5. Subject to section 6, no person shall manufacture, use, sell, offer for sale or import

  1. a toxic substance set out in column 1 of Part 1 of Schedule 2 or a product, set out in column 2, that contains the toxic substance in a concentration that exceeds the limit set out in column 3, even if the substance is incidentally present;"

3. Changes to the reporting requirements

a) Industry (Section 7 and Schedule 5)

i) Proposed changes to section 7

Under section 7 of the 2005 Regulations, if specific reporting thresholds are met, importers and manufacturers of toxic substances or of mixtures or products containing toxic substances listed in Schedule 2, Part 3, are required to report to the Minister. The information to be reported is set out in Schedule 5 and must be provided within three months after the end of the calendar year during which the toxic substance was manufactured or imported.

Section 7 of the Regulations is written in such a way that it could be understood that the same quantity of a substance listed in Schedule 2, Part 3, could be reported multiple times as the products are transformed at successive stages in the production chain. The proposed Regulations would require that reporting for the listed substances occur only once, when the substance is imported into or manufactured in Canada (including incidental manufacture).

Current wording in Section 7:

"7. Every person that manufactures or imports a toxic substance set out in column 1 of Part 3 of Schedule 2 or a mixture or product containing, whether incidentally or not, any such toxic substance shall submit to the Minister the information set out in Schedule 5 within three months after the end of the calendar year during which the toxic substance, mixture or product was manufactured or imported . . ."

Proposed wording for Section 7:

"7. Every person that manufactures or imports a toxic substance set out in column 1 of Part 3 of Schedule 2 or that imports a product containing, whether incidentally or not, any of those toxic substances shall submit to the Minister the information set out in Schedule 5 within three months after the end of the calendar year during which either the toxic substance was manufactured or the substance or the product was imported . . ."

ii) Proposed changes to Schedule 5

The following changes to Schedule 5 are being proposed:

  1. that the country of origin of the listed substances and the total quantity exported, along with the unit of measurement, be requested;
  2. that paragraph 2(e) of Schedule 5 be moved to section 3 of Schedule 5 so that the information received regarding the quantity of the toxic substance sold in Canada and the unit of measurement is directly associated with the companies to whom the product was sold;
  3. that it be clarified that in paragraphs 2(c), 2(d), and 2(e) of Schedule 5 "quantity" refers to the quantity of the toxic substance; and
  4. that it be clarified in paragraph 2(g) of Schedule 5 that "annual average concentration" refers to the annual average concentration of the toxic substance in the product and that a request for the unit of measurement be included.

Current wording in Schedule 5, Sections 2 and 3

"2. Information respecting each toxic substance set out in column 1 of Part 3 of Schedule 2 and each mixture or product containing the toxic substance manufactured or imported during a calendar year:

  1. the name of the toxic substance and the name of the mixture or the product containing the toxic substance, if applicable;
  2. the calendar year;
  3. the total quantity manufactured, and the unit of measurement;
  4. the total quantity imported, and the unit of measurement;
  5. the quantity sold in Canada, and the unit of measurement;
  6. the identification of each proposed use of the toxic substance and the mixture or product containing the toxic substance, if applicable;
  7. the annual average concentration, if applicable;
  8. the analytical method used to determine the concentration of the toxic substance in the mixture or product, if applicable; and
  9. the analytical method detection limit used to determine the concentration of the toxic substance in the mixture or product, if applicable.

3. The name, civic and postal addresses, e-mail address, if any, telephone number and fax number, if any, of each person in Canada to whom the manufacturer or importer sold a toxic substance set out in column 1 of Part 3 of Schedule 2 or a mixture or product containing such a toxic substance and the identification of each toxic substance, mixture or product sold."

Proposed wording for Schedule 5, Sections 2 and 3

"2. Information respecting each toxic substance set out in column 1 of Part 3 of Schedule 2 and each product containing it manufactured or imported during a calendar year:

  1. the name of the toxic substance and the name of the product, if applicable;
  2. the calendar year;
  3. the total quantity of the toxic substance manufactured, and its unit of measurement;
  4. the total quantity of the toxic substance imported, and its unit of measurement;
  5. the country of origin of the imported toxic substance or product;
  6. the total quantity of the toxic substance exported, and its unit of measurement;
  7. the identification of each proposed use of the toxic substance and the product, if applicable;
  8. the annual weighted average concentration of the toxic substance in the product and the unit of measurement, if applicable;
  9. the analytical method used to determine the concentration of the toxic substance in the product, if applicable; and
  10. the analytical method detection limit used to determine the concentration of the toxic substance in the product, if applicable.

3. Information respecting each toxic substance set out in column 1 of Part 3 of Schedule 2 and each product containing the toxic substance sold during a calendar year:

  1. the name, civic and postal addresses, e-mail address, if any, telephone number and fax number, if any, of each person in Canada to whom the manufacturer or importer sold the toxic substance or the product;
  2. the name of the toxic substance and the name of the product, if applicable;
  3. the calendar year; and
  4. the quantity of the toxic substance sold in Canada, and its unit of measurement."

b) Laboratories (Section 3 and Schedule 3)

The reporting requirements for laboratories using the listed substances for analysis, scientific research, or as a laboratory analytic standard are set out in Schedule 3 of the 2005 Regulations. Currently, laboratories are required to identify themselves and their authorized personnel, as well as the name of the substance and the products containing it, the estimated quantities of the substance, the actual and proposed uses, and the anticipated period of use. The draft 2008 Regulations would include reworded text specifying that the information regarding the products would be reported separately from the information on the toxic substance. These modifications would improve the quality of the data received regarding laboratories' use of toxic substances.

Current wording in Schedule 3, Section 2:

"2. Information respecting each toxic substance set out in Schedule 1 or 2, and each mixture or product containing the toxic substance:

  1. the name of the toxic substance and the name of the mixture or product containing the toxic substance, if applicable;
  2. the anticipated period of its use;
  3. the estimated quantity to be used in a calendar year and the unit of measurement; and
  4. the identification of each proposed use and each actual use, as the case may be."

Proposed Wording of Schedule 3, Section 2:

"2. Information respecting each toxic substance set out in Schedule 1 or 2, and each product containing it:

  1. the name of the toxic substance and the name of the product, if applicable;
  2. the anticipated period of its use;
  3. the estimated quantity of the toxic substance to be used in a calendar year and its unit of measurement;
  4. the identification of each proposed use and each actual use, as the case may be;
  5. in the case of a product,
    1. the estimated quantity of the product to be used in a calendar year and its unit of measurement, and
    2. the estimated concentration of the toxic substance in that product and its unit of measurement."

c) Permits (Section 6 and Schedule 4)

The reporting requirements for industries applying for permits are set out in Schedule 4 of the 2005 Regulations. Permit applications may be submitted by any industry where the manufacture, use, sale, offer for sale and import of a prohibited substance is necessary due to a lack of substitutes. Currently applicants are required to provide information which identifies their facility and its authorized personnel, information pertaining to the toxic substance and products containing it employed in the facility, evidence of the lack of feasible substitutes, measures taken to minimize harmful effects of the toxic substance, and a plan identifying the measures to be taken so that the applicant's activities will be in compliance with the Regulations.

The draft 2008 Regulations would contain reworded text specifying that the information regarding the products would be reported separately from the information on the toxic substance. These modifications would improve the quality of the data received regarding the use pattern of the listed substances, as well as assist in the evaluation of the permit request.

It is also being proposed that sections 2 and 3 of Schedule 4 be combined, since, with the above modifications, these sections will have the same meaning.

Current wording in Schedule 4, Section 2 and 3:

"2. In the case of a toxic substance referred to in section 4 of these Regulations or a mixture or product containing any such toxic substance, the following information:

  1. the name of each toxic substance and the name of each mixture or product containing the toxic substance, if applicable;
  2. the estimated quantity to be manufactured, used, sold, offered for sale or imported in a calendar year and the unit of measurement;
  3. the identification of each proposed use, if known; and
  4. if the applicant is a manufacturer, seller or importer, the name, civic and postal addresses, e-mail address, if any, telephone number and fax number, if any, of each person in Canada to whom the applicant intends to sell a toxic substance or a mixture or product containing such a toxic substance and the identification of each toxic substance, mixture or product.

3. In the case of a toxic substance referred to in section 5 of these Regulations or any mixture or product containing any such toxic substance, the following information:

  1. the name of the toxic substance and the name of the mixture or product containing the toxic substance, if applicable;
  2. in the case of a toxic substance set out in column 1 of Part 1 of Schedule 2, the concentration of the toxic substance in the mixture or product;
  3. the estimated quantity to be manufactured, used, sold, offered for sale or imported in a calendar year and the unit of measurement;
  4. the identification of each proposed use, if known; and
  5. if the applicant is a manufacturer, seller or importer, the name, civic and postal addresses, e-mail address, if any, telephone number and fax number, if any, of each person in Canada to whom the applicant intends to sell a toxic substance or a mixture or product containing such a toxic substance and the identification of each toxic substance, mixture or product."

Proposed wording for Schedule 4, Section 2:

"2. In the case of a toxic substance referred to in either section 4 or 5 of these Regulations or a product containing it, the following information:

  1. the name of each toxic substance and the name of each product, if applicable;
  2. the estimated quantity of the toxic substance to be manufactured, used, sold, offered for sale or imported in a calendar year and its unit of measurement;
  3. in the case of a product,
    1. the estimated quantity of the product to be manufactured, used, sold, offered for sale or imported in a calendar year and its unit of measurement, and
    2. the estimated concentration of the toxic substance in that product and its unit of measurement;
  4. the identification of each proposed use, if known; and
  5. if the applicant is a manufacturer, seller or importer, the name, civic and postal addresses, e-mail address, if any, telephone number and fax number, if any, of each person in Canada to whom the applicant intends to sell a toxic substance or a product containing it and the name of each toxic substance or product."

4. Administrative amendments

a) Restructuring the regulations

After the publication of the 2005 Regulations, the Regulations Amending the Prohibition of Certain Toxic Substances Regulations, 2005 (2-Methoxyethanol, Pentachlorobenzene and Tetrachlorobenzenes) were published in the Canada Gazette, Part II, on November 29, 2006. In addition, the Regulations Amending the Prohibition of Certain Toxic Substances Regulations, 2005 (Four New Fluorotelomer-based Substances) were proposed in the Canada Gazette, Part I, on June 17, 2006. Consultations on these initiatives took place in 2005 and 2006. The draft 2008 Regulations would integrate both the existing and proposed amendments into the text to simplify reading.

b) Confidentiality clause

A proposed addition to the Regulations is a section in which those being regulated can request confidentiality. This clause would be consistent with subsection 20(1) of the Access to Information Act. The confidentiality clause being proposed is as follows:

"9. Any person that submits a request for confidentiality under section 313 of the Canadian Environmental Protection Act, 1999 must identify in the request:

  1. any information that constitutes a trade secret;
  2. any information the disclosure of which would likely cause material financial loss to, or prejudice the competitive position of, the person, or result in material financial gain to a third party;
  3. any information the disclosure of which would likely interfere with contractual or other negotiations being conducted by the person; and
  4. any financial, commercial, scientific or technical information that is confidential and is treated consistently in a confidential manner by the person."

c) Clarification of text

i) Weighted average of an annual concentration

It is proposed that the word "weighted" be added when addressing average concentration to clearly show that it is expected that the average be reported as a weighted average and not an arithmetic average. It is proposed that the following components in the draft 2008 Regulations be modified to take this change into account: paragraph 7(b); paragraph 7(c); Schedule 2, Part 3, columns 3 and 4; and Schedule 5, section 2.

ii) "Quantity" or "total quantity"

It is proposed that the word "total" be added before the word "quantity" in paragraph 7(a) and paragraph 7(c). This modification will clarify that it is the total of all importations and manufacturing of the substance in question that needs to be considered.

iii) Schedule 2, Part 1

It is proposed that the word "solvent" be added in Schedule 2, Part 1, column 2 at the end of items (a), (b), and (c) and that the word "solution" be added in Schedule 2, Part 1, column 2 at the end of items (g) and (h).

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