Vol. 149, No. 2 — January 28, 2015

Registration

SOR/2015-8 January 9, 2015

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999

Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on March 29, 2014, a copy of the proposed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999, in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Order or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

Therefore, the Minister of the Environment and the Minister of Health, pursuant to section 100 of the Canadian Environmental Protection Act, 1999 (see footnote c), make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.

Ottawa, December 18, 2014

LEONA AGLUKKAQ
Minister of the Environment

Ottawa, December 22, 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 sulfonyls, 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 Items 15 to 17 of Part 3 of Schedule 3 to the Act are repealed.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.

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 (ECL) in Schedule 3 to the Canadian Environmental Protection Act, 1999 (CEPA 1999) and the associated Regulations help Canada to meet its international obligations. The Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999 (the Order) moves substances from Part 3 of the ECL to Part 1 or Part 2, as appropriate. Moving these substances will ensure that their exports comply with the Prior Informed Consent procedure (PIC 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 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 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 CEPA 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 (the Regulations) control the export of substances listed on the ECL. They describe the manner in which to notify the Minister of the Environment (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 makes several modifications to the ECL.

The Order removes 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 removes these substances from Part 3 of the ECL.

The Order adds 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 CEPA 1999, and also ensure that these exports comply with the PIC procedure under the Rotterdam Convention. The Order adds “Azinphos-methyl (CAS 86-50-0)” to Part 1 of the ECL.

The Order adds 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 CEPA 1999:

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

This 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. The substances named in (a) through (l) are not an exhaustive list. All perfluorooctane sulfonates, perfluorooctane sulfonamides and perfluorooctane sulfonyls are captured, even if they are not named.

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 do 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 CEPA 1999. However, the exporters will 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

A draft Order was published in Canada Gazette, Part I, on March 29, 2014, and a 60-day comment period followed. Emails were sent to all known Canadian PFOS stakeholders and pesticide industry associations with known interest in these substances. No comments were received.

Additionally, a 30-day online public consultation was conducted in August 2013. Emails were sent to all known Canadian PFOS stakeholders and pesticide industry associations with known interest in these substances. A consultation document was provided with 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 continue to 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 benefits 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 is 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 St-Joseph Boulevard, 11th Floor
Gatineau, Quebec
K1A 0H3
Fax: 819-938-4218
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
Fax: 819-953-3241
Email: RAVD.DARV@ec.gc.ca