Canada Gazette, Part I, Volume 148, Number 13: Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999

March 29, 2014

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring department

Department of the Environment and Department of Health

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Canada has committed to shared responsibility and cooperative efforts to address the international trade in chemicals and pesticides. The Export Control List, Schedule 3 to the Canadian Environmental Protection Act, 1999, and the associated Regulations help Canada to meet its international obligations. The Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999 (hereinafter referred to as the Order) would move substances from Part 3 of the Export Control List to Part 1 or Part 2, as appropriate. Moving these substances will ensure that their exports comply with the Prior Informed Consent procedure under the Rotterdam Convention and continue to comply with the Stockholm Convention.

Background

Canada is party to international conventions (the Rotterdam Convention and the Stockholm Convention) that list certain chemicals and set out obligations with respect to their management.

The Rotterdam Convention

The Rotterdam Convention, which entered into force in February 2004, establishes a list of substances (Annex III of the Convention) that have been banned or severely restricted by some Rotterdam Parties for health and/or environmental reasons. The Convention facilitates an information exchange between Parties, in which the “prior informed consent” of the importing Party is required prior to the export of substances listed in Annex III. This Convention also requires “export notification,” through which the exporting Party is obligated to notify and send information to the importing Party when exporting a substance that is subject to domestic prohibition or restriction on use when that substance is not listed in Annex III.

Parties at the Sixth Conference of the Parties to the Rotterdam Convention in May 2013 agreed to list the following substances in Annex III of that treaty, making them subject to the Prior Informed Consent procedure (PIC procedure) when traded internationally:

For the purposes of this document, the group of substances identified in the second item will be referred to as “PFOS substances.”

The Stockholm Convention

The Stockholm Convention is a global treaty to protect human health and the environment from chemicals that remain intact in the environment for long periods, become widely distributed geographically, accumulate in the fatty tissue of humans and wildlife, and have adverse effects on human health or the environment. The Stockholm Convention requires Parties to take measures to eliminate or reduce the release of these persistent organic pollutants into the environment. The Stockholm Convention restricts exports to Parties as well as non-Parties, allowing exports of the persistent organic pollutants under very select circumstances.

Annex A of the Convention lists substances categorized for elimination while Annex B of the Convention lists substances categorized for restriction. “Perfluorooctane sulfonic acid (PFOS), its salts and perfluorooctane sulfonyl fluoride (PFOS-F)” is one of the listings in Annex B of the Stockholm Convention. This group of substances is captured in the listing of PFOS substances to Annex III of the Rotterdam Convention.

Export Control List

The Export Control List (hereinafter referred to as the ECL) is a list of substances whose export is controlled because use in Canada is prohibited or restricted, or because Canada has accepted to control their export under the terms of an international agreement (for example, the Rotterdam Convention). Section 100 of the Canadian Environmental Protection Act, 1999 provides the Minister of the Environment and the Minister of Health with the authority to add or delete substances from the ECL by order. These amendments are published in the Canada Gazette.

Export of Substances on the Export Control List Regulations

The Export of Substances on the Export Control List Regulations (hereinafter referred to as the Regulations) control the export of substances listed on the ECL. They describe the manner in which to notify the Minister of the Environment (hereinafter referred to as the Minister) of exports. The Regulations also provide a permitting mechanism for exports to Parties to the Rotterdam Convention and establish conditions for the export of substances subject to the Stockholm Convention. Exports that would contravene either the Rotterdam Convention or the Stockholm Convention are prohibited by the Regulations.

The ECL is the list of substances subject to the Regulations. The substances are grouped into three parts:

Objectives

The objective of the Order is to amend the ECL to ensure Canada's continued compliance with its international obligations under the Rotterdam Convention and the Stockholm Convention.

Description

The Order would make several modifications to the ECL.

The Order would remove three substances from Part 3 of the ECL

The following substances were listed in Part 3 of the ECL in September 2012:

The listing of substances in the ECL makes their export subject to prior notification to the Minister under the Regulations. Since their listing in Part 3 of the ECL, no notifications of export have been received for these substances. The Order would remove these substances from Part 3 of the ECL.

The Order would add azinphos-methyl to Part 1 of the ECL

All remaining allowable uses of azinphos-methyl were cancelled as of January 1, 2013, and use of this pesticide is now prohibited in Canada under the Pest Control Products Act. There are no Canadian manufacturers of this substance. Based on this information, no exports of azinphos-methyl are expected, but stockpiles may exist so export controls are necessary. Listing this substance in Part 1 of the ECL will ensure that exports are only allowed for the purpose of destruction, or to comply with a direction under subparagraph 99(b)(iii) of the Canadian Environmental Protection Act, 1999, and further ensure that these exports comply with the PIC procedure under the Rotterdam Convention. The Order would add “Azinphos-methyl (CAS 86-50-0)” to Part 1 of the ECL.

The Order would add PFOS substances to Part 2 of the ECL

The import, use, manufacture, sale and offer for sale of the following substances are prohibited in Canada under the Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations under the Canadian Environmental Protection Act, 1999:

These substances are included in the listing of PFOS substances to Annex III of the Rotterdam Convention. The Order would add PFOS substances to Part 2 of the ECL using the names the Parties agreed to for the Rotterdam Convention Annex III listing:

This proposed listing to Part 2 of the ECL includes all PFOS substances listed in items 15 and 16 in Part 3 of the ECL and also the PFOS substances listed in Annex B of the Stockholm Convention.

There are a few exemptions for use of PFOS-containing products in Canada (e.g. fire-fighting foams, photoresists and anti-reflective coatings in photolithography, photographic film) under the Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations.

No exports of PFOS substances are expected, but PFOS- containing products are known to exist in Canada. Listing PFOS substances on Part 2 of the ECL will ensure that exports continue to comply with Canada's obligations under the Stockholm Convention and will introduce further controls to also ensure compliance with the PIC procedure under the Rotterdam Convention.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this Order. These substances are not manufactured in Canada and no exports are expected. Further, these substances are already listed on Part 3 of the ECL and the modifications to the ECL would not present any new administrative burden on exporters. Moving azinphos-methyl from Part 3 to Part 1 of the ECL will ensure that exports are for the purpose of destroying the substance or comply with a direction under subparagraph 99(b)(iii) of the Canadian Environmental Protection Act, 1999. However, the exporters would be required to apply for permits and notify the Minister in the same way they would with the substances listed in Part 3. Therefore, administrative efforts by the exporter would be unchanged, though certain exports would not be allowed. Consequently, no incremental administrative costs are expected to be carried by businesses.

Small business lens

The small business lens does not apply to this Order, as there are no expected impacts on small business based on current and anticipated practices.

Consultation

Emails were sent to all known Canadian PFOS stakeholders and pesticide industry associations with known interest in these substances. A 30-day online public consultation was conducted in August 2013. The consultation document provided information on the proposed changes to the ECL and an opportunity to comment. No comments were received.

Rationale

Moving azinphos-methyl to Part 1 and PFOS substances to Part 2 of the ECL is an effective means of ensuring Canada's continued compliance with its international obligations under the Rotterdam Convention. With respect to PFOS substances, exports will be controlled to ensure continued compliance with the Stockholm Convention. To ensure a substance is exported in accordance with Canada's international obligations under the Rotterdam Convention and the Stockholm Convention, it must be listed to the ECL. There is no other option for enforceable compliance currently available.

Canadians

The Order would benefit Canadians by allowing Canada to remain in good standing with its international export commitments under the Rotterdam Convention and the Stockholm Convention. Canada's participation in these international conventions provides benefits to Canadians by ensuring that substances in international trade are used in an environmentally sound manner, which reduces damage to the global and domestic environment and ecosystems. Canada's participation in the Rotterdam Convention allows it to refuse imports of certain chemicals and pesticides which are banned domestically and presents another means of controlling Canadians' exposure to these substances.

Industry

There are no known exporters of these substances. Moreover, these substances are not manufactured in Canada. Administrative costs for export permit applications and export notifications are therefore estimated to be zero in the absence of exports.

Competitiveness

The Order is not expected to decrease competitiveness for any regulatee or sector. While there are currently no known exporters of these substances, exports could occur subject to the requirements of the applicable regulations.

Government

The cost to the Government of the Order would be negligible. Additional costs to administer and enforce the regulations which are linked to the ECL are not expected as a result of the Order. Administrative costs for export permit application and processing of export notifications are estimated to be zero in the absence of exports.

Contacts

Lucie Desforges
Director
Chemical Production Division
Environment Canada
351 Saint-Joseph Boulevard, 11th Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-994-4404
Fax: 819-994-5030
Email: Lucie.Desforges@ec.gc.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Environment Canada
10 Wellington Street, 25th Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-7651
Fax: 819-953-3241
Email: Yves.Bourassa@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Minister of the Environment and the Minister of Health, pursuant to section 100 of that Act, propose to make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.

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 Order 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 sent by mail to Lucie Desforges, Director, Chemical Production Division, Department of the Environment, Gatineau, Quebec K1A 0H3, by fax to 819-994-5030 or by email to SEC-ECS@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, March 14, 2014

LEONA AGLUKKAQ
Minister of the Environment

Ottawa, March 14, 2014

RONA AMBROSE
Minister of Health

ORDER AMENDING SCHEDULE 3 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

AMENDMENTS

1. Part 1 of Schedule 3 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is amended by adding the following after item 16:

17. Azinphos-methyl (CAS 86-50-0)

2. Part 2 of Schedule 3 to the Act is amended by adding the following after item 34:

35. Perfluorooctane sulfonates, perfluorooctane sulfonamides and perfluorooctane sulfonyles, including:

3. Items 15 to 17 of Part 3 of Schedule 3 to the Act are repealed.

COMING INTO FORCE

4. This Order comes into force on the day on which it is registered.

[13-1-o]