ARCHIVED — Regulations Amending the PCB Regulations

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Vol. 143, No. 39 — September 26, 2009

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring departments

Department of the Environment and Department of Health

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The PCB Regulations (the Regulations) were published in the Canada Gazette, Part II, on September 17, 2008. Recently, Environment Canada, following a comment from an industry stakeholder, identified an oversight in the Regulations with respect to on-site destruction of polychlorinated biphenyls (PCBs) and products containing PCBs. The Regulations currently do not allow on-site destruction of PCBs, which would provide more flexibility to regulatees. Regulatees also identified inconsistencies in the regulatory text and requested clarification, in particular on missing reporting requirements for solid products containing PCBs and end-of-use dates for pole-top transformers and light ballast at less than 50 mg/kg concentrations. Furthermore, there is a lack of clarity and consistency between the English and French versions of the regulatory text, as noted by the Standing Joint Committee on the Scrutiny of Regulations (SJCSR).

The proposed Regulations Amending the PCB Regulations (the proposed amendments) would provide additional flexibility to the industry by allowing on-site destruction in accordance with provincial and territorial legislation without compromising the safety and environmental protection measures set out in the Regulations. It would also improve the clarity and consistency of the regulatory text. The proposed amendments would not change the deadlines for the final destructions of PCBs or introduce any other regulatory provision that would delay the elimination of PCBs from use and storage in Canada.

The proposed amendments would come into force on the day on which they are registered.

Description and rationale

Background

The Regulations establish deadlines for ending the use and long-term storage of PCBs and products containing PCBs. They require that all PCBs and products containing PCBs that were stored on September 5, 2008, be sent for destruction by December 31, 2009. The Regulations, however, allow a maximum storage of two years at an authorized destruction facility. At the end of this two-year period, the PCBs must be destroyed.

Recently, a regulatee raised a concern stating that the current Regulations do not allow on-site destruction of PCBs using alternative destruction methods. The current requirement for the end-of-storage deadline of December 31, 2009, states that PCB must be sent off-site for destruction. It was also pointed out that allowing on-site destruction would eliminate transportation costs, making it less expensive than destruction off-site and provide more flexibility to the regulatees to comply with the Regulations.

In addition, regulatees identified some inconsistencies on the reporting requirements and asked for clarifications on some provisions, such as end-of-use dates for pole-top transformers and light ballast at concentrations of less than 50 mg/kg.

Furthermore, in 2008, the SJCSR and Environment Canada also identified certain provisions of the Regulations that require greater clarity between the English and French versions of the regulatory text.

Hence, to address the above concerns and clarify the regulatory text, the following amendments are being proposed.

Proposed amendments

Storage and destruction

The proposed amendments would add a provision to the storage provision of the Regulations which would allow on-site storage of PCBs or products containing PCBs for an additional two years, until December 31, 2011, provided PCBs are destroyed on the site by that date. This provision would be similar to the one provided to off-site destruction facilities.

The proposed amendments would also require that PCB owners opting to destroy PCBs on-site obtain the necessary authorizations from their respective provincial or territorial governments. This provision would be similar to the one that governs the operations of off-site destruction facilities.

The above two provisions would rectify an oversight by Environment Canada with respect to on-site destruction of PCBs and PCB products, and provide flexibility to the regulatees for compliance with the Regulations. The proposed revisions would also be in line with the current policy intent of the Regulations which allows a maximum of two years storage time of PCBs at off-site destruction facilities that have the necessary provincial or territorial authorizations. Therefore, the proposed amendments would provide flexibility to regulatees to use on-site destruction methods for stored PCBs (such as contaminated soils) without compromising the timeline for final destruction of PCBs, as prescribed under the Regulations. The on-site destruction, in accordance with the provincial and territorial requirements, would ensure that destruction of PCBs respects all environmental release requirements. Therefore, the proposed amendments are not expected to have any adverse impact on the environment or human health.

The PCBs owners that choose to destroy PCBs and products containing PCBs off-site would continue to be subject to the current end-of-storage deadline. These PCBs owners would send the stored PCBs to an authorized destruction facility by December 31, 2009, where the PCBs can be stored for an additional two years prior to their final destruction.

Administrative changes

Environment Canada and industry stakeholders identified inconsistencies and a lack of clarity in the regulatory text. Therefore, to reconcile the English and French versions of the Regulations and to add clarity to the regulatory text, the proposed amendments would also include the following revisions:

  • align the French and English versions of subsection 1(1), paragraphs 7(b) and 8(1)(b) by replacing “autorités du territoire” with “autorités compétentes de la province ou du territoire” in the French version of the subsection and paragraphs;
  • align the French and English versions of section 12 by replacing the wording “Il est permis, dans une installation agréée à cette fin, de transformer des BPC et des produits qui en contiennent pour les détruire ou pour les récupérer afin de les détruire” with “Il est permis de transformer des BPC et des produits qui en contiennent pour les détruire dans une installation agréée à cette fin ou pour les récupérer afin de les détruire dans une telle installation” in the French version of the section;
  • correct an error in the listing of equipments in subparagraph 14(1)(d)(i) by replacing the wording “other than” with “including” in the English version and by replacing the wording “à l’exception” with “y compris” in the French version of the subparagraph. This correction would include light ballasts and pole-tops containing PCBs in a concentration of less than 50 mg/kg. The intent had been to allow this use; however, the error was overlooked by Environment Canada when the Regulations were finalized. The continued use of these equipments given this threshold had been included as part of the Regulatory Impact Analysis Statement (RIAS) that was published with the Regulations. In addition, subsequent to the publication of the Regulations, Environment Canada informed the stakeholders in October 2008 that the use of these equipments would be allowed;
  • align the French and English versions of subsection 19(1) by adding “daily” after the word “processed” in the English version of the subsection;
  • modify the English and French versions of paragraphs 33(1)(c) and 33(3)(b) to require the reporting of the quantity of solids containing PCBs and the concentration of PCBs in these solids. Although this was omitted during finalization of the Regulations, the cost associated with this requirement had been included in the cost-benefit analysis in the RIAS of the Regulations;
  • correct an omission with respect to persons prescribed under section 37 by adding the wording “and the owner of a facility who stores PCBs or products containing PCBs in a concentration of 50 mg/kg or more, other than the owner referred to in section 38, shall each prepare” in the English version. Similarly, the French version of the text would be corrected by adding the wording “et le propriétaire d’une installation, autre que celui visé à l’article 38, qui stockent à leur dépôt de BPC des BPC ou des produits qui en contiennent en cette concentration”. This correction would include reporting by PCB storage sites which were omitted during the finalization of the Regulations. However, the associated cost impacts have been included as part of the impact analysis in the RIAS that was published with the Regulations;
  • correct an error in the French version of subsection 40(1) by replacing “Direction de l’application de la loi en environnement” with “Division de l’application de la loi en environnement”;
  • replace the wording “the day on which these Regulations come into force” with “September 5, 2008” in paragraphs 14(1)(a) and (b), 18(3)(b) and (c) and 29(3)(a) and subsections 16(1) and (2); and
  • replace the wording “one year after the day on which these Regulations come into force” with “September 5, 2009” in subsection 19(2).

Proposed changes based on the SJCSR recommendations

The proposed amendments would

  • align the French and English versions of subsections 11(1) and (2) by replacing the word “produit” with “produits” in the French version of these subsections;
  • align the French and English versions of subsection 17(4) by replacing the wording “changement des renseignements fournis” with “changement aux renseignements fournis” in the French version of the subsection;
  • align the French and English versions of subparagraph 28(1)(a)(iii) and paragraph 28(1)(d) by replacing the wording “à la disposition” with “facilement accessible” in the French version of the subparagraph and the paragraph. This change would ensure consistency with the English wording “readily available”;
  • revise the wording of paragraph 29(3)(b) and add subsection 29(3.1) after subsection 29(3) to clarify the exception pertaining to labelling requirements with respect to small equipment and light ballast;
  • revise the text in paragraph 31(1)(b) and subsection 31(4) in the English and French versions to clarify the information required on the labels;
  • correct an omission in the French version of subsection 39(2) by adding the word “sur” before the wording “l’une ou l’autre des années 2014 à 2017”; and
  • align the French and English versions of paragraph 44(1)(c) by replacing the wording “des mesures à prendre” with “des mesures prises” in the French version of the paragraph.

Costs and benefits

The proposed amendments are not expected to result in any incremental costs to the industry, to government or to other interested parties, since no new requirements are proposed.

The most commonly used destruction method for PCBs is incineration, which requires large quantities of products containing PCBs to be technically and economically feasible. Moreover, dismantling and transporting an incineration unit presents technical and operational difficulties. Alternative destruction methods, such as bio-remediation, do not present these challenges and can be used on-site. The quantities of PCBs and of products containing PCBs that are in storage awaiting disposal, other than contaminated soils, are relatively small at individual sites and are widely distributed across the country. Therefore, Environment Canada expects that owners of small quantities of PCBs would continue to send them off-site for incineration. Owners of large inventories of contaminated soils, on the other hand, are more likely to use the alternative on-site destruction methods.

In 2009, contaminated soils were estimated by Environment Canada to account for only five tonnes, or less than one percent, of the total amount of pure PCBs in storage. Thus, the quantity of pure PCBs that would be destroyed on-site is expected to be relatively small. The large inventories of these contaminated soils are stored at 10 sites in Canada.

In the RIAS published with the Regulations, it was estimated that the transportation cost for all PCBs in storage in 2009 was approximately $4.9 million. Transporting contaminated soils represented 24% of the total destruction cost. Environment Canada expects that of the 10 large sites, only a few of these PCB owners may choose to destroy PCBs on-site. While the resulting cost savings are not expected to be significant compared to the total cost for the transportation of PCBs that are in storage, the proposed amendments may reduce the overall incremental destruction costs for PCB owners that choose to destroy the PCBs on-site.

As stated earlier, PCB owners that opt for on-site destruction of PCBs and of products containing PCBs would need to obtain the necessary authorizations from their respective jurisdictions and meet their environmental release requirements. Therefore, no incremental environmental or human health impacts are expected.

As the proposed amendments would add clarity to the regulatory text and provide flexibility to industry to comply with the Regulations, the overall impact of the proposed amendments is expected to be positive.

Consultation

The proposed amendments are developed to provide flexibility to regulatees with respect to destroying PCBs and products containing PCBs on- or off-site and to improve and clarify the regulatory text through changes of an editorial nature. Given that these proposed changes are minor in nature, with no negative impacts, and are not expected to raise any concerns, no formal stakeholder consultations were held.

Implementation, enforcement and service standards

The proposed amendments would not alter the manner in which the Regulations are implemented and enforced. Therefore, no changes to the implementation plan, enforcement strategy or service standards for the Regulations are required as a result of the proposed amendments. (see footnote 1)

Contacts

Robert Larocque
Manager
Waste Programs
Waste Reduction and Management Division
Environment Canada
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-2242
Fax: 819-997-3068
Email: Robert.larocque@ec.gc.ca

Markes Cormier
Senior Economist
Regulatory Analysis and Instrument Choice Division
Environment Canada
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-5236
Fax: 819-997-2769
Email: markes.cormier@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Governor in Council, pursuant to subsection 93(1) and section 97 of that Act, proposes to make the annexed Regulations Amending the PCB Regulations.

Any person may, within 60 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Regulations or a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to the Director, Waste Management and Reduction Division, Department of the Environment, Gatineau, Quebec K1A 0H3, by fax to 819-997-3068, or by electronic mail to tmb@ec.gc.ca.

A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, September 17, 2009

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE PCB REGULATIONS

AMENDMENTS

1. Subparagraph 1(3)(b)(ii) of the French version of the PCB Regulations (see footnote 2) is amended by replacing “portés” with “portée”.

2. Subsections 11(1) and (2) of the French version of the Regulations are amended by replacing “produit” with “produits”.

3. Section 12 of the French version of the Regulations is replaced by the following:

Destruction

12. Il est permis de transformer des BPC et des produits qui en contiennent pour les détruire dans une installation agréée à cette fin ou pour les récupérer afin de les détruire dans une telle installation.

4. In subsection 13(2) of the Regulations, the expression “the day on which these Regulations come into force” is replaced by the expression “September 5, 2008”.

5. Subparagraph 14(1)(d)(i) of the Regulations is replaced by the following:

(i) electrical capacitors, light ballasts, electrical transformers and their auxiliary electrical equipment, including pole-top electrical transformers and their pole-top auxiliary electrical equipment,

6. (1) Subsection 17(4) of the French version of the Regulations is replaced by the following:

Avis de changement des renseignements

(4) Le demandeur est tenu d’aviser le ministre par écrit de tout changement aux renseignements fournis en application du paragraphe (3) dans les trente jours suivant la date du changement.

(2) Paragraph 17(7)(b) of the French version of the Regulations is replaced by the following:

b) il lui a donné la possibilité de présenter des observations par écrit au sujet de celle-ci.

7. (1) The portion of subsection 19(1) of the Regulations before paragraph (a) is replaced by the following:

Requirement to store

19. (1) A person who owns, controls or possesses PCBs or products containing PCBs shall, within 30 days after the day on which those PCBs or products cease to be processed daily or used or October 5, 2008, whichever is later, either

(2) In subsection 19(2) of the Regulations, the expression “one year after the day on which these Regulations come into force” is replaced by the expression “September 5, 2009”.

8. In subsection 20(1) of the Regulations, the expression “one year after the day on which these Regulations come into force” is replaced by the expression “September 5, 2009”.

9. In subsection 22(2) of the Regulations, the expression “within 30 days after the day on which these Regulations come into force” is replaced by the expression “October 5, 2008”.

10. Section 23 of the Regulations is replaced by the following:

PCBs or products containing PCBs stored on September 5, 2008

23. The person who owns, controls or possesses PCBs or products containing PCBs, other than liquids for which an extension has been granted under section 17, that are stored on September 5, 2008 may store them

(a) until December 31, 2009 if they are sent by that date for destruction to an authorized facility that is authorized for that purpose; or

(b) until December 31, 2011 if the person destroys them by that date, at the location where they are stored, in an authorized facility that is authorized for that purpose.

11. (1) Subparagraph 28(1)(a)(iii) of the French version of the Regulations is replaced by the following:

(iii) en rend une copie à jour facilement accessible à toute personne qui participe à sa mise en œuvre et au service d’incendie local ou, à défaut, au fonctionnaire local nommé par le commissaire provincial aux incendies ou à toute autre autorité locale chargée de la protection contre les incendies;

(2) Paragraph 28(1)(d) of the French version of the Regulations is replaced by the following:

d) conserve au dépôt une copie des documents et registres visés aux articles 43 et 44 respectivement et en rend une facilement accessible au service d’incendie local ou, à défaut, au fonctionnaire local nommé par le commissaire provincial aux incendies ou à toute autre autorité locale chargée de la protection contre les incendies;

12. (1) Paragraph 29(3)(b) of the Regulations is replaced by the following:

(b) equipment that is too small, including light ballasts, to bear the label referred to in subsection (4).

(2) Section 29 of the Regulations is amended by adding the following after subsection (3):

Containers for small equipment

(3.1) The owner of the equipment referred to in paragraph (3)(b) that is stored shall affix the label referred to in subsection (4) in a readily visible location on the container in which the equipment is stored.

13. (1) Paragraph 31(1)(b) of the Regulations is replaced by the following:

(b) states “Date of Commencement of Storage / Date de début de stockage” and the date on which the storage begins.

(2) Subsection 31(4) of the Regulations is replaced by the following:

Non-application

(4) Subsections (1) and (2) do not apply in respect of a product or container stored on September 5, 2008, if the product or the container

(a) bore a label on September 5, 2008 that indicated the presence of PCBs and that stated “Date of Commencement of Storage” and the date on which the storage began; and

(b) bears a label that states “Date of Commencement of Storage / Date de début de stockage” and the date on which the storage began.

14. (1) The portion of paragraph 33(1)(c) of the Regulations before subparagraph (i) is replaced by the following:

(c) the quantity of liquids containing PCBs in the equipment and of liquids, expressed in litres, the quantity of solids containing PCBs in the equipment, expressed in kilograms, and the concentration of PCBs in the liquids and solids, expressed in mg/kg,

(2) Paragraph 33(2)(c) of the French version of the Regulations is amended by replacing “il” with “ils”.

(3) The portion of paragraph 33(3)(b) of the Regulations before subparagraph (i) is replaced by the following:

(b) the quantity of liquids containing PCBs in the equipment, expressed in litres, the quantity of solids containing PCBs in the equipment, expressed in kilograms, and the concentration of PCBs in the liquids and the solids, expressed in mg/kg,

15. The portion of section 37 of the Regulations before paragraph (a) is replaced by the following:

Stored PCBs or products — PCB concentration of 50 mg/kg or more

37. The person who owns and stores PCBs or products containing PCBs in a concentration of 50 mg/kg or more, other than the equipment and liquids referred to in section 33, and the owner of a facility who stores PCBs or products containing PCBs in a concentration of 50 mg/kg or more, other than the person referred to in section 38, shall each prepare a report that is current to December 31 in each calendar year in which the person stores the PCBs or products at their PCB storage site and that contains the following information:

16. Paragraph 39(2)(c) of the French version of the Regulations is replaced by the following:

c) au plus tard le 31 mars 2018, s’il porte sur l’une ou l’autre des années 2014 à 2017;

17. (1) Subsection 40(1) of the Regulations is amended by replacing “Manager of Inspection Program” with “Regional Director”.

(2) Subsection 40(1) of the French version of the Regulations is amended by replacing “95(1)(a)” with “95(1)a)” and “Direction de l’application de la loi en environnement” with “Division de l’application de la loi en environnement”.

18. Paragraph 44(1)(c) of the French version of the Regulations is replaced by the following:

c) des mesures prises pour y remédier;

19. The Regulations are amended by replacing “the day on which these Regulations come into force” with “September 5, 2008” in the following provisions:

( a ) paragraphs 14(1)(a) and (b);

( b ) subsections 16(1) and (2);

( c ) paragraphs 18(3)(b) and (c); and

( d ) paragraph 29(3)(a).

20. The French version of the Regulations is amended by replacing “autorités du territoire” with “autorités compétentes de la province ou du territoire” in the following provisions:

( a ) the definition of “installation agréée” in subsection 1(1);

( b ) paragraph 7(b); and

( c ) paragraph 8(1)(b).

COMING INTO FORCE

21. These Regulations come into force on the day on which they are registered.

[39-1-o]

Footnote a
S.C. 2004, c. 15, s. 31

Footnote b
S.C. 1999, c. 33

Footnote 1
Details on the implementation plan, enforcement strategy and service standards for the Regulations can be found at www.ec.gc.ca/ceparegistry/documents/regs/g2-14219_rias1.pdf.

Footnote 2
SOR/2008-273