ARCHIVED — Vol. 150, No. 12 — June 15, 2016

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Registration

SOR/2016-120 June 3, 2016

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Order Amending Schedule 1 to the Canadian Environmental Protection Act, 1999

P.C. 2016-423 June 3, 2016

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 May 2, 2015, a copy of the proposed Order Amending Schedule 1 to the Canadian Environmental Protection Act, 1999 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;

And whereas, pursuant to section 90 of that Act, the Governor in Council is satisfied that the substances set out in the annexed Order must be included among the volatile organic compounds that are excluded under item 65 of Schedule 1;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to section 90 of the Canadian Environmental Protection Act, 1999 (see footnote c), makes the annexed Order Amending Schedule 1 to the Canadian Environmental Protection Act, 1999.

Order Amending Schedule 1 to the Canadian Environmental Protection Act, 1999

Amendment

1 Item 65 of Schedule 1 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is amended by striking out “and” at the end of paragraph (z.17) and by adding the following after paragraph (z.18):

  • (z.19) 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (HFE-7000);
  • (z.20) 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500);
  • (z.21) 1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea);
  • (z.22) methyl formate (HCOOCH3);
  • (z.23) t-butyl acetate;
  • (z.24) 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300);
  • (z.25) propylene carbonate;
  • (z.26) dimethyl carbonate;
  • (z.27) trans-1,3,3,3-tetrafluoropropene (HFO-1234ze);
  • (z.28) HCF2OCF2H (HFE-134);
  • (z.29) HCF2OCF2OCF2H (HFE-236cal2);
  • (z.30) HCF2OCF2CF2OCF2H (HFE-338pcc13);
  • (z.31) HCF2OCF2OCF2CF2OCF2H;
  • (z.32) 2,3,3,3-tetrafluoropropene (HFO-1234yf);
  • (z.33) trans 1-chloro-3,3,3-trifluoroprop-1-ene [HCFO-1233zd(E)]; and
  • (z.34) 2-amino-2-methyl-1-propanol.

Coming into Force

2 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

Many volatile organic compounds (VOCs) contribute to the formation of ground-level ozone, which is a component of smog. As a result, they were added to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA) [hereafter referred to as the List of Toxic Substances] in July 2003. Evidence indicates, however, that some VOCs do not significantly contribute to the formation of ground-level ozone. Several of these compounds were therefore excluded from the List of Toxic Substances by way of an exclusion list. This exclusion list was similar to the United States Environmental Protection Agency’s (U.S. EPA) exclusion list at that time.

The U.S. EPA periodically reviews and assesses VOCs. Between 2004 and 2014, scientific assessments conducted by the U.S. EPA have concluded that 16 additional VOCs contribute negligibly to the formation of ground-level ozone, and therefore they have been included in their list of compounds excluded from the regulatory definition of VOCs in the United States. The Department of the Environment has examined the scientific approach used by the U.S. EPA and agrees with these assessments.

The VOC definition in Canada’s List of Toxic Substances and the management of these 16 compounds do not reflect the conclusions of the assessments regarding the low underlying risk with respect to ground-level ozone. Consequently, there are unnecessary limitations on the use of these compounds in product formulations in Canada and the regulatory definitions of VOCs in the United States and Canada are not aligned.

Background

VOCs are organic compounds that contain one or more carbon atoms which evaporate readily to the atmosphere and contribute to air pollution. In the atmosphere, photochemical reactions between VOCs and other common airborne pollutants, such as nitrogen oxides, result in the formation of ground-level ozone, a respiratory irritant and a component of smog. However, different VOCs have different levels of reactivity; therefore, they do not react at the same speed nor contribute to ozone formation to the same extent.

Since 2004, the U.S. EPA has periodically revised its VOC definition to exclude additional compounds that were determined to negligibly contribute to the formation of ground-level ozone. To determine the level of reactivity of VOCs, the U.S. EPA compares the reactivity of a compound to the reactivity levels of ethane. Compounds with reactivity levels less than or equal to the reactivity levels of ethane may be deemed negligibly reactive. As a result of the assessments conducted by the U.S. EPA, 16 additional VOCs were determined to contribute negligibly to the formation of ground-level ozone. The U.S. EPA has therefore excluded these compounds from its list of compounds included in the regulatory definition of VOCs.

Following U.S. action, the Department of the Environment has examined the scientific approach and assessment used by the U.S. EPA to determine the level of reactivity of these VOCs. The Department of the Environment has solicited input on the potential exclusion of these compounds from the VOC definition from other federal departments, provincial, territorial and municipal governments, industry and environmental groups, and public advocacy groups. Based on all of the information available and the feedback received to date, the Department of the Environment is in agreement with the U.S. EPA evaluation and has concluded that it is appropriate to exclude these organic compounds from the VOC definition.

The 16 compounds can be used in a variety of potential applications, including as refrigerants, fire suppressants, heat transfer fluids, foam-blowing agents, aerosol propellants, adhesives and solvents. Some of these compounds are also used in coatings (e.g. architectural coatings and automotive refinishing coatings), cosmetics, cleaners, degreasers and food packaging. Following the addition of VOCs to the List of Toxic Substances, Canada developed regulations and established VOC concentration limits for certain products. These regulations are the Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations and the Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations. Any VOC that is included on the List of Toxic Substances is presently managed in accordance with these regulations.

Objectives

The objective of the Order Amending Schedule 1 to the Canadian Environmental Protection Act, 1999 (the Order) is to exclude VOCs from the List of Toxic Substances that do not contribute significantly to the formation of ground-level ozone. The Order will also align the list of compounds excluded from the regulatory definition of VOCs in the United States and Canada.

Description

The Order, made under section 90 of CEPA, will amend item 65 of the List of Toxic Substances by adding 16 compounds to the list of excluded VOCs. The 16 organic compounds are as follows:

  • 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (HFE-7000);
  • 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500);
  • 1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea);
  • methyl formate (HCOOH3);
  • t-butyl acetate;
  • 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300);
  • propylene carbonate;
  • dimethyl carbonate;
  • trans-1,3,3,3-tetrafluoropropene (HFO-1234ze);
  • HCF2OCF2H (HFE-134);
  • HCF2OCF2OCF2H (HFE-236cal2);
  • HCF2OCF2CF2OCF2H (HFE-338pcc13);
  • HCF2OCF2OCF2CF2OCF2H;
  • 2,3,3,3-tetrafluoropropene (HFO-1234yf);
  • trans 1-chloro-3,3,3-trifluoroprop-1-ene [HCFO-1233zd(E)]; and
  • 2-amino-2-methyl-1-propanol.

The name of the substance tertiary butyl acetate used in the proposed Order has been changed to t-butyl acetate in the Order. This change was made to align with the naming convention used in the U.S. EPA, and the substance it refers to has not been changed.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the Order, as there is no change in administrative costs for business.

Small business lens

The small business lens does not apply to this Order, as there are no costs for small business.

Consultation

Consultation prior to the publication of the proposed Order in the Canada Gazette, Part I

On September 16, 2013, the Department of the Environment published a consultation document concerning a proposal to add compounds to the list of VOCs excluded from the List of Toxic Substances in Schedule 1 of CEPA for a 30-day public comment period. The consultation document was drafted in collaboration with the Department of Health.

During the 30-day public comment period, submissions were received from seven industry associations, two chemical manufacturers, a coating manufacturer and a plastic product manufacturer. All submissions supported the addition of these compounds to the list of VOCs excluded from the List of Toxic Substances. The stakeholders also supported the alignment of Canadian and U.S. VOC definitions, because it would provide greater flexibility in their product formulations.

Prior to the 30-day public comment period, the Department of the Environment informed the governments of the provinces and territories through the National Advisory Committee of CEPA (CEPA NAC) of the release of the consultation document and of the public comment period mentioned above. No comments were received from CEPA NAC.

Since the publication of the consultation document in 2013, an additional compound, 2-amino-2-methyl-1-propanol (AMP), has been added to the U.S. EPA’s VOC exclusion list. This compound was likewise included in the proposed Order.

Comments received following publication of the proposed Order in the Canada Gazette, Part I

The proposed Order was published in the Canada Gazette, Part I on May 2, 2015, for a 60-day public comment period. During this period, submissions were received from six industry associations representing vehicle manufacturers, fuel producers, specialty products producers, and paint and coatings manufacturers; five chemical manufacturers; two vehicle manufacturers; a coating manufacturer; and an electronic product manufacturer. All comments received have been considered in finalizing the Order.

Prior to the 60-day public comment period, the Department of the Environment informed the governments of the provinces and territories through CEPA NAC of the release of the proposed Order and of the public comment period mentioned above. No comments were received from CEPA NAC.

All submissions supported the addition of these 16 compounds to the list of VOCs excluded from the List of Toxic Substances with the exception of one. This submission did not support excluding t-butyl acetate from the List of Toxic Substances given that the substance may have impacts on human health. The stakeholders also supported the alignment of Canadian and U.S. VOC definitions because it will provide greater flexibility for the use of the compounds in their product formulations. Many stakeholders have also requested that the Order be published in the Canada Gazette, Part II, as soon as possible.

Key comments received following publication of the proposed Order are discussed in detail below:

Comment: Two associations representing coating manufacturers requested a more effective mechanism to accelerate future updates to the exclusion list of the VOC definition from the List of Toxic Substances in Schedule 1 of CEPA.

Response: The Department of the Environment will continue to monitor modifications to the VOC definition in the United States, and will propose revisions if deemed appropriate.

Comment: Comments received from a chemical manufacturer and an association representing specialty products manufacturers recommended adding the chemical acronym, “HCFO-1233zd(E)” and “HFO-1233zd,” to the compound “trans 1-chloro-3,3,3, trifluoroprop-1-ene” in the Order, to improve clarity.

Response: Based on the research of the Department of the Environment, the most commonly used acronym for the compound trans chloro-3,3,3,trifluoroprop-1-ene is “HCFO-1233zd(E).” Also, “HFO-1233zd” is an acronym for 1-chloro-3,3,3-trifluoropropene, which is not listed in the Order. Given that the Order lists chemical synonyms for other compounds on the list of excluded VOCs, the acronym “HCFO-1233zd(E)” has been added to the compound trans chloro-3,3,3,trifluoroprop-1-ene in the Order.

Comment: A chemical manufacturer suggested that the Department of the Environment create and publish an interpretation policy of VOCs that would exclude VOCs, which do not contribute to ground level ozone formation from the definition of VOCs for regulatory purposes. The stakeholder suggested that such an interpretation would render the requirement for a listing of exclusions unnecessary.

Response: An “interpretation policy” would not provide stakeholders with the regulatory certainty an exclusion list would with regards to whether a substance is excluded or not. Furthermore, the Department of the Environment aims to harmonize, where appropriate, with the approach taken under the U.S. EPA legislation in order to facilitate and increase regulatory compliance within our industry partners. Since the approach of the U.S. EPA involves the assessment of each compound for its contribution to ground level ozone formation, an interpretation policy has not been pursued by the Department of the Environment.

Comment: A chemical manufacturer noted that California’s South Coast Air Quality Management District (SCAQMD) (see footnote 2) is taking steps to remove t-butyl acetate from their exclusion list, given evidence that the compound may have impact on human health.

Response: The technical assessment on the use of t-butyl acetate as a non-VOC being conducted by the SCAQMD has yet to be finalized. Furthermore, the substance is listed on the U.S. EPA list of exclusions. U.S EPA has not announced of any plans to remove t-butyl acetate from the U.S. EPA list of VOC exclusions.

Screening assessments conducted by both the Department of the Environment and the Department of Health had determined that t-butyl acetate did not meet any of the criteria of a toxic substance as per section 64 of CEPA and was therefore listed on the Domestic Substances List (DSL) in 2010. Note that excluding compounds from the VOC definition does not preclude their future risk assessment and management. Should the substance be assessed as toxic in the future, the Department of the Environment and the Department of Health would put in place the appropriate risk management instrument.

Given the above, t-butyl acetate remains as a compound on the Order and will be added to the list of excluded VOCs.

The Department of the Environment will continue to monitor U.S. EPA actions, in order to maintain alignment and avoid varying requirements across jurisdictions where appropriate.

Rationale

The Order will add 16 compounds to the list of VOCs excluded from the List of Toxic Substances, which will ensure that the List of Toxic Substances includes only those VOCs that contribute to the formation of ground-level ozone and will align the list of compounds excluded from the regulatory definition of VOCs in the United States and Canada.

Following the U.S. EPA scientific assessment, a number of companies and associations have also suggested that Canada should add these 16 compounds to the exclusion list. The Order will provide greater flexibility to industry to utilize these compounds in their formulations and to comply with VOC regulatory requirements in a manner that does not unduly impair the performance of their products. For example, propylene carbonate, dimethyl carbonate and AMP may potentially be used as substitutes for other, more highly reactive compounds, to meet the overall VOC concentration limits for automotive refinishing products and architectural coatings.

It should also be noted that from the list of the 16 compounds, HFC-227ea, methyl formate, t-butyl acetate, propylene carbonate, dimethyl carbonate, AMP, HFO-1234yf, HCFO-1233zd(E) and HFO-1234ze are included on the DSL and their use, manufacture or importation in Canada will not require any reporting on notification under CEPA. HFE-7500 and HFE-7300 are included on the Non-domestic Substances List (NDSL) and therefore remain subject to the New Substances Notification Regulations (Chemicals and Polymers) [NSNR], but with reduced reporting requirements. The remaining compounds are not on either of the lists, and any person who intends to import or manufacture the compounds is therefore required to submit a notification to the Minister of the Environment, as required by the NSNR, with associated reporting requirements.

By excluding these 16 compounds from the VOC definition, environmental and health risks to Canadians are not expected to increase, as both the United States and Canada have determined that these 16 compounds contribute very little to the formation of ground-level ozone. Since the contribution of the 16 compounds to ground-level ozone was the only reason for their inclusion as VOCs on the List of Toxic Substances, the new information about their negligible contribution is sufficient to warrant their exclusion from the List. Excluding these compounds from the VOC definition does not preclude their future risk assessment and management for other reasons, such as for contributions to climate change or toxicity to human health or the environment.

As required by the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, (see footnote 3) a preliminary scan was conducted which concluded there would be no expected important environmental effects, either positive or negative; accordingly, a strategic environmental assessment is not required.

Contacts

Astrid Télasco
Director
Products Division
Department of the Environment
351 Saint-Joseph Boulevard, 9th Floor
Gatineau, Quebec
K1A 0H3
Fax: 819-938-4480 / 1-888-391-3695
Email: ec.produits-products.ec@canada.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Department of the Environment
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca

  • Footnote a
    S.C. 2004, c. 15, s. 31
  • Footnote b
    S.C. 1999, c. 33
  • Footnote c
    S.C. 1999, c. 33
  • Footnote 1
    S.C. 1999, c. 33
  • Footnote 2
    The SCAQMD is the air pollution agency responsible for controlling emission sources of air pollution in the South Coast Air Basin, in Southern California.
  • Footnote 3
    http://www.ceaa.gc.ca/default.asp?lang=En&n=b3186435-1