Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999: SOR/2018-193
Canada Gazette, Part II, Volume 152, Number 21
October 1, 2018
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
Whereas, pursuant to subsection 332(1) footnote a of the Canadian Environmental Protection Act, 1999 footnote b, the Minister of the Environment published in the Canada Gazette, Part I, on January 6, 2018, a copy of the proposed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999, substantially 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 footnote b, make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.
Gatineau, September 26, 2018
Minister of the Environment
Ottawa, September 7, 2018
Ginette Petitpas Taylor
Minister of Health
Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999
1 Item 19 of Part 2 of Schedule 3 to the Canadian Environmental Protection Act, 1999 footnote 1 is replaced by the following:
- 19 Methamidophos (CAS 10265-92-6)
2 Item 22 of Part 2 of Schedule 3 to the Act is replaced by the following:
- 22 The following types of asbestos:
- (a) Actinolite (CAS 77536-66-4)
- (b) Anthophyllite (CAS 77536-67-5)
- (c) Amosite (CAS 12172-73-5)
- (d) Crocidolite (CAS 12001-28-4)
- (e) Tremolite (CAS 77536-68-6)
3 Items 1, 3 and 7 to 9 of Part 3 of Schedule 3 to the Act are repealed.
4 Part 3 of Schedule 3 to the Act is amended by adding the following after item 19:
- 20 Chrysotile asbestos (CAS 12001-29-5)
Coming into Force
5 This Order comes into force on the day on which the Prohibition of Asbestos and Products Containing Asbestos Regulations come into force, but if it is registered after that day, it comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The health risks of asbestos are well established. Breathing in asbestos fibres can cause life-threatening diseases, such as asbestosis, mesothelioma and lung cancer. Currently, the export of crocidolite asbestos is controlled in Canada, but the export of other forms of asbestos is not. Regulations to control exports of all forms of asbestos are needed in order for Canada to implement a comprehensive strategy for asbestos controls and to meet international obligations.
On December 15, 2016, the Government of Canada announced a comprehensive strategy to manage asbestos. One element of this strategy is the development of new regulations under the Canadian Environmental Protection Act, 1999 (CEPA) to prohibit asbestos and products containing asbestos by 2018. Asbestos is a commercial term given to a group of naturally occurring fibrous forms of minerals that are incombustible and separable into filaments, including chrysotile, amosite, crocidolite, anthophyllite, tremolite and actinolite. Asbestos has been reviewed by the International Agency for Research on Cancer of the World Health Organization (WHO) and was declared a human carcinogen (for all forms of asbestos). The health risks of asbestos are well established. Breathing in asbestos fibres can cause life-threatening diseases, such as asbestosis, mesothelioma and lung cancer.
Asbestos was mined in Canada until 2011 and was historically used mainly for insulating buildings and homes against cold weather and noise, as well as for fireproofing. While many uses have been phased out, asbestos may still be found in a variety of products, including cement and plaster products (such as cement pipes and cement flat boards), industrial furnaces and heating systems, building insulation, floor and ceiling tiles, house siding, textiles, automotive brake pads, and vehicle transmission components such as clutches. Asbestos is also used in the chlor-alkali industry as part of cell diaphragms, which act as a filter in the manufacture of chlorine and caustic soda. These final products do not contain asbestos.
The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention) facilitates information exchange between Parties. For substances listed under the Rotterdam Convention, the terms of the Convention ensure that exports of these substances are not sent to Parties who have stated they do not consent to their import. For exports of substances subject to a domestic prohibition or severe restriction that are not listed under the Rotterdam Convention, exporting Parties are obligated to send information and notification to the importing Party.
Export Control List
The Export Control List (ECL) [Schedule 3 to CEPA] is a list of substances whose export is controlled because their use in Canada is prohibited or restricted, or because Canada has accepted to control their export under the terms of an international agreement. Section 100 of CEPA 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.
Substances on the ECL are grouped into the following three parts:
- Substances specified in Part 1 are subject to a prohibition on their use in Canada. They can be exported for the purpose of destruction or to comply with a direction issued by the Minister of the Environment under subparagraph 99(b)(iii) of CEPA.
- Substances specified in Part 2 are subject to an international agreement that requires notification or the consent of the importing country.
- Substances specified in Part 3 are subject to domestic controls that restrict their use in Canada.
In 2000, crocidolite asbestos was listed on Part 2 of the ECL.footnote. 2
Export of Substances on the Export Control List Regulations
The Export of Substances on the Export Control List Regulations (ESECLR) prohibit or establish regulatory conditions on the export of substances listed on the ECL. They describe how to notify the Minister of the Environment of proposed exports. The ESECLR enable Canada to meet its obligations under the Rotterdam Convention as well as its export obligations under the Stockholm Convention on Persistent Organic Pollutants and the Minamata Convention on Mercury. Specifically, the ESECLR provide a permitting scheme for exports to Parties to the Rotterdam Convention and establish restrictions on the export of substances subject to the Stockholm Convention and the export of mercury, which is subject to the Minamata Convention. Canada is a Party to all of these Conventions. The ESECLR apply to all exports of substances listed on the ECL, regardless of the purpose of the export or the quantity.
The objective of the Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999 (the amending Order) is to ensure Canada’s continued compliance with the Rotterdam Convention and to establish regulatory conditions on exports of asbestos.
The amending Order will make the export of all forms of asbestos subject to the ESECLR. It adds the following types of asbestos to Part 2 of the ECL: actinolite, anthophyllite, amosite, and tremolite. Crocidolite remains in Part 2 of the ECL. All these substances are currently subject to the Prior Informed Consent of the Rotterdam Convention. Chrysotile asbestos will be added to Part 3 of the ECL, as the substance will be subject to domestic controls that restrict its use in Canada, and Canada will have an obligation to notify the importing Party when exporting this substance. Exports of substances listed in the ECL are subject to the ESECLR.
The amending Order will also make the following housekeeping changes, which are not related to the strategy to manage asbestos:
- change the listing of “methamidophos” to align with the Rotterdam Convention; and
- remove five ozone-depleting substances from the ECL to remove regulatory duplication, as their export is already controlled under the Ozone-depleting Substances and Halocarbon Alternatives Regulations and, in certain cases, under the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations.
Concurrent regulatory proposals
Concurrently, separate amendments to the ESECLR are being made which, together with the amending Order, will prohibit the export of asbestos, whether or not it is contained in a product.
The “One-for-One” Rule applies to the amending Order, as it is expected to result in incremental administrative savings to business that will be considered as an “OUT” under the “One-for-One” Rule. It is projected that the amending Order will result in a decrease in annualized average administrative burden costs of around $100, or $40 per business. footnote 3
The amending Order removes the need for three exporters of ozone-depleting substances to provide a notice of activity prior to exporting as a result of the removal of these substances from the ECL. This exemption is expected to save half an hour, four times per year.
Small business lens
The small business lens does not apply to the amending Order, as it is not expected to have any impacts on businesses on its own. The amending Order is part of a broader regulatory strategy that involves prohibiting exports of all forms of asbestos, whether or not it is contained in a product, with certain exceptions. An analysis of the impacts on small businesses from the prohibition of exports of asbestos can be found in the Regulatory Impact Analysis Statement for the Prohibition of Asbestos and Products Containing Asbestos Regulations (Asbestos Regulations) and the amendments to the ESECLR.
Consultation prior to the publication of the proposed Order in the Canada Gazette, Part I
Comments were received during the 30-day period following the publication of the Notice of intent to develop regulations respecting asbestos in the Canada Gazette, Part I, on December 17, 2016, as well as during the 45-day period following the publication of the consultation document on the Department of the Environment website on April 20, 2017. Two webinars (one in English and one in French) were held regarding the consultation document during the consultation period, as well as various stakeholder meetings.
Comments were received from non-governmental and labour organizations during the consultation period concerning exports requesting that all forms of asbestos be listed on the ECL. Other specific comments requested that all forms of asbestos be listed in Part 1 of the ECL (Prohibited substances). The amending Order will list all forms of asbestos on the ECL and the amendments to the ESECLR would include prohibitions related to these substances.
Some comments were received concerning Canada’s position regarding the listing of chrysotile asbestos to Annex III to the Rotterdam Convention, and it was suggested that Canada should work with the international community to reform the listing process under that treaty. Canada’s position was updated prior to the Eighth meeting of the Conference of the Parties (COP) to the Rotterdam Convention in 2017. Canada supported and advocated for the listing of chrysotile asbestos at that meeting; however, a consensus was not reached and the decision to list chrysotile asbestos was deferred to the meeting of the COP in 2019. Canada will continue to work with the international community to look at options to enhance the effectiveness of the Convention.
Consultation following the publication of the proposed Order in the Canada Gazette, Part I
The proposed Order was published in the Canada Gazette, Part I, on January 6, 2018, which initiated a 75-day public comment period where interested parties were invited to submit their written comments. The proposed Order was posted on the Department’s CEPA Environmental Registry website to make it broadly available to interested parties. The Department emailed interested parties to inform them of the public comment period. The Department also sent a letter to the CEPA National Advisory committee members to inform them of the publication of the proposed Order and of the opportunity to be consulted and to submit written comments. Two webinars (one in English and one in French) and one conference call were held regarding the proposed Asbestos Regulations, related amendments to the ESECLR and the proposed Order, during the consultation period. During this consultation period, the Department received three written submissions: one each from a non-governmental organization, an industry association, and an individual. Comments received from stakeholders expressed general support for the proposed Order.
One industry association requested that the Department go beyond listing all prohibited forms of asbestos under the ECL by listing them directly in the ESECLR. The ESECLR Amendments have not been modified to include the listing of the prohibited forms of asbestos as the appropriate mechanism for including the substances in the Regulation is to add them to the ECL.
One individual requested that the proposed Order be modified to exclude the listing of chrysotile under the ECL as the Rotterdam Convention does not list chrysotile under Annex III due to the lack of scientific evidence demonstrating that chrysotile is associated with pulmonary diseases or mesothelioma when used in a controlled manner. After reviewing stakeholders’ feedback, the Department has decided to maintain its approach towards the prohibition of all types of asbestos, including chrysotile asbestos. All types of asbestos have been reviewed by the WHO International Agency for Research on Cancer and have been declared carcinogenic to humans. The Department continues to support the listing of chrysotile under the Rotterdam Convention and will maintain the listing of chrysotile under the ECL.
The health risks of asbestos are well established. Breathing in asbestos fibres can cause life-threatening diseases, such as asbestosis, mesothelioma and lung cancer. On December 15, 2016, the Government of Canada announced a government-wide strategy to manage asbestos. One element of this strategy is the development of new regulations under CEPA to prohibit asbestos and products containing asbestos by 2018. Exports of asbestos are being controlled in response to domestic policy and in order to ensure Canada’s continued compliance with the Rotterdam Convention, since substances subject to prohibitions or severe restrictions footnote 4 must be controlled so that the exporting Party notifies the importing Party (Article 12 of the Rotterdam Convention).
The amending Order adds asbestos to the ECL and therefore subjects asbestos exports to the ESECLR. Together with the separate amendments to the ESECLR being implemented, the amending Order limits the export of asbestos, whether or not it is contained in a product, and ensures Canada’s continued compliance with the Rotterdam Convention.
The amending Order also makes a minor housekeeping change to align a substance name with the existing listing under the Rotterdam Convention and removes five ozone-depleting substances whose export is already controlled under separate regulations.
The amending Order on its own does not have any impacts on businesses. Impacts associated with new controls on exports of asbestos, as well as the removal of ozone-depleting substances, are supported by stakeholders.
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