136, No. 18 — August 28, 2002

Registration
SOR/2002-318 16 August, 2002

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

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

Whereas, pursuant to subsection 332(1) of the Canadian Environmental Protection Act, 1999 (see footnote a) , the Minister of the Environment published in the Canada Gazette, Part I, on June 1, 2002, a copy of the proposed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999, substantially in the form set out in the annexed Order, 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 b) , hereby make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.

Ottawa, August 7, 2002

David Anderson

Minister of the Environment

Ottawa, August 6, 20026

A. Anne McLellan

Minister of Health

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

AMENDMENTS

1. Items 2 and 3 of Part 1 of Schedule 3 to the Canadian Environmental Protection Act, 1999 (see footnote 1)  are replaced by the following:

2. Polybrominated biphenyls that have the molecular formula C₁₂H_(10-n)Br_n in which "n" is greater than 2

3. Polychlorinated terphenyls that have the molecular formula C₁₈H_(14-n)Cl_n in which "n" is greater than 2

2. Item 6 of Part 1 of Schedule 3 to the French version of the Act is replaced by the following:

6. Phosphamidon (phosphate de 2-chloro-2-(diéthylecarbamoyl)-1- méthylvinyle et de diméthyle)

3. Item 1 of Part 2 of Schedule 3 to the English version of the Act is replaced by the following:

1. 2,4,5-T (CAS 93-76-5)

4. Item 5 of Part 2 of Schedule 3 to the French version of the Act is replaced by the following:

5. Chlordiméforme (CAS 6164-98-3)

5. Item 9 of Part 2 of Schedule 3 to the French version of the Act is replaced by the following:

9. Dinosèbe et sels de dinosèbe (CAS 88-85-7)

6. Item 17 of Part 2 of Schedule 3 to the French version of the Act is replaced by the following:

17. Pentachlorophénol (CAS 87-86-5)

7. Item 23 of Part 2 of Schedule 3 to the French version of the Act is replaced by the following:

23. Biphényles polychlorés (BPC) (CAS 1336-36-3)

8. Part 2 of Schedule 3 to the Act is amended by adding the following after item 24:

25. Toxaphene (CAS 8001-35-2)

26. Binapacryl (CAS 485-31-4)

27. Ethylene oxide (CAS 75-21-8)

28. 1,2-Dichloroethane (CAS 107-06-2)

9. Items 5 and 6 of Part 3 of Schedule 3 to the Act are repealed.

COMING INTO FORCE

10. 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.)

Description

Section 100 of the Canadian Environmental Protection Act, 1999 (CEPA 1999) provides the Ministers of Environment and Health with the authority to add or delete substances from the Export Control List (Schedule 3 of CEPA 1999) by order. The Export Control List is not static and is subject from time to time, to additions, deletions, and administrative corrections that are published in the Canada Gazette.

The Export Control List, Schedule 3 of CEPA 1999, consists of three parts. Part 1 of the List includes substances, such as Mirex, whose use is prohibited in Canada. These substances may only be exported under very limited circumstances (e.g., for destruction). Part 2 of the List includes substances for which notification and consent for export are required by an international agreement. Examples of these substances include DDT and Lindane. Part 3 of the list includes substances whose use is restricted in Canada by or under a federal Act of Parliament. Examples of these substances include ozone-depleting substances.

The purpose of the order is to add Binapacryl (CAS 485-31-4), Toxaphene (CAS 8001-35-2), 1,2-dichloroethane (Ethylene Dichloride) (CAS 107-06-2), and Ethylene Oxide (CAS 75-21-8) to Part 2 of Schedule 3 of CEPA 1999. These substances have become subject to the prior informed consent (PIC) procedure as pesticides under the Rotterdam Convention. Visit (http://www.fao.org/ag/agp/agpp/pesticid/pic/dgdhome.htm). The PIC procedure provides an efficient method for the exchange of information, about a small number of "banned" or "severely restricted" chemicals and pesticides, and "acutely hazardous pesticide formulations", among parties to the Rotterdam Convention.

Ethylene Dibromide (1,2-dibromomethane) and Ethylene Dichloride (1,2-dichloroethane) will be deleted from Part 3 of Schedule 3. Ethylene Dibromide is currently listed under both Part 2 and Part 3 of the Export Control List. It will be deleted from Part 3 of the list. It remains on Part 2 because it is a substance that is subject to an international agreement requiring notification or consent. The change is an administrative correction to Schedule 3 of CEPA 1999. Because Ethylene Dichloride is now subject to an international agreement requiring notification or consent it is being removed from Part 3 of the Export Control List.

The remaining changes correct spelling, punctuation and other typographical errors that have inadvertently been made in the nomenclature of other substances on the Export Control List. These corrections do not alter the substances current status on the Export Control List.

Binapacryl

Binapacryl was included in the PIC list as a pesticide, primarily because of concerns about its effects on human health. It can be used as a fungicide and miticide. This substance has not been registered for use as a pesticide in Canada since the 1970's.

Toxaphene

Toxaphene was included in the PIC list as a pesticide. It was included in the PIC procedure because of concerns about possible risks to human health and the environment. Toxaphene is a substance that can potentially cause cancer in humans. It has been used worldwide as an insecticide and rodenticide. There are many commercially available alternatives. Canadian registrations of Toxaphene were severely restricted in 1970. The registration of the last remaining product livestock use was discontinued in 1982.

Toxaphene was assessed under the Toxic Substance Management Policy (1995) and it meets the criteria of persistence, bioaccumulation and toxicity making it a Track 1 substance, a candidate for virtual elimination (http://www.ec.gc.ca/substances/nsb/eng/sj_ toxaphene_e.htm.). Toxaphene is also one of twelve persistent organic pollutants (POPs) that are currently being considered for further international control action under the Stockholm POPs Convention adopted in May 2001.

Ethylene Oxide

Ethylene Oxide was included in the PIC procedure as a pesticide because of concerns about its potential health effects. For example, that it could cause cancer in humans. No regulatory actions to ban or restrict its industrial use have been reported to date.

Ethylene Oxide is widely used to manufacture other chemical substances and is an effective pesticide. Canadian pesticide uses were severely restricted in the 1980's. The only remaining registered pesticide use in Canada is to fumigate stored product insects in spices and natural seasonings. These uses have been tightly restricted to minimize human exposure or environmental release. The only reported alternative to this use is irradiation. There is also a broad range of non-pesticide uses of this substance that are regulated under the Food and Drugs Act (e.g., for sterilizing medical and laboratory instruments, in pharmaceuticals, cosmetics, and aseptic packaging).

The draft Priority Substances List Assessment (PSL2) concluded that Ethylene Oxide is "entering the environment in a quantity or concentration or under conditions constituting or that may constitute a danger in Canada to human life or health". The PSL2 assessment recommended that Ethylene Oxide be declared toxic under Section 64 (c) of CEPA 1999 (http://www.ec.gc.ca/substances/ese/eng/psap/final/ethyleneoxide.cfm).

1,2-dichloroethane (Ethylene Dichloride)

Ethylene Dichloride (EDC) was included in the PIC procedure as a pesticide. The primary reason for its inclusion was that it has the potential to cause cancer in humans. No regulatory actions to ban or restrict its industrial use have been reported to date.

EDC was registered for use in Canada until 1984, primarily as a fumigant for grain. The major industrial use for EDC is in the production of vinyl chloride monomer. It is also used in the production of ethylene glycol, as a drying agent in glues, solvent, a chemical intermediate, and as a catalyst in the petroleum industry.

EDC was also declared to be toxic under paragraph 11(c) of CEPA 1988 (now paragraph 64(c) of CEPA 1999) because it probably causes cancer in humans. There is only one Canadian producer and distributor. The company and Environment Canada have been able to negotiate an environmental performance agreement for the life-cycle management of this substance. (http://www.ec.gc.ca/sop/consult/dce_mou-e.cfm).

Alternatives

CEPA 1999 requires substances whose export is subject to an international agreement requiring the notification or consent of the importing country to be listed in Schedule 3. When Toxaphene, Binapacryl, Ethylene Dichloride, and Ethylene Oxide became subject to the PIC procedure they became eligible for inclusion on CEPA's Export Control List. The PIC procedure applies only to their use as pesticides. There is no other option for complying with the requirements of the Rotterdam Convention and CEPA 1999.

Benefits and Costs

Listing these substances in Schedule 3 to CEPA 1999 will clarify the current status of these substances in international trade, and is not expected to result in significant incremental costs to industry, government or the Canadian public. Three of the substances are no longer registered for use in pesticide products. Although Ethylene Oxide still has limited use in pesticide products in Canada it is unlikely to be exported in substantial quantities. Only Ethylene Dichloride and Ethylene Oxide have industrial uses. Only one Canadian Company manufactures and exports Ethylene Dichloride for industrial use. The listing of these substances will not affect exports of these substances for industrial use.

Once these substances have been added to Schedule 3 of CEPA 1999, exporters will have to comply with any regulations that apply to substances on the Export Control List. For example, under subsection 101 (1) of CEPA 1999, Canadian exporters must provide notice to the Minister of the Environment of proposed exports of substances specified in Schedule 3 of the Act. Anyone who plans to export a substance on the Export Control List must notify the Minister and file an annual report in a manner specified by the Export Control List Notification Regulations (SOR/2000-108). The Minister must also report to the Canadian public actual exports, by company, substance, and country of destination, in the CEPA Environmental Registry (section 103 CEPA 1999) an online electronic bulletin board (http://www.ec.gc.ca/CEPARegistry/default.cfm) that Environment Canada has established on the Internet.

Consultation

Extensive international consultations involving major stakeholders took place under the Rotterdam Convention when Binapacryl, Toxaphene, Ethylene Oxide, and Ethylene Dichloride became subject to the PIC procedure.

Every order made under CEPA 1999 must be published in the Canada Gazette, and is subject to a public review period, during which any person may provide comments or file notice of objection, requesting that a board of review be established.

No comments were received during the 60-day comment period following publication in the Canada Gazette, Part I.

Compliance and Enforcement

CEPA Enforcement officers will abide by the Compliance and Enforcement Policy (http://www.ec.gc.ca/CEPARegistry/ enforcement/Cand Epolicy.pdf.), which sets out the range of possible responses to violations: warnings, directions, environmental protection compliance orders, ticketing, ministerial orders, injunctions, prosecution, and environmental protection alternative measures. In addition, the policy explains when Government of Canada will resort to civil suits by the Crown for cost recovery.

When, following an inspection or an investigation, a CEPA enforcement officer discovers an alleged violation, the officer will choose the appropriate enforcement action based on the following factors:

1. Nature of the alleged violation: this includes consideration of the damage, the intent of the alleged violator, whether it is a repeat violation, and whether an attempt has been made to conceal information or otherwise subvert the objectives and requirements of the Act.

2. Effectiveness in achieving the desired result with the alleged violator: the desired result is compliance within the shortest possible time and with no further repetition of the violation. Factors to be considered include the violator's history of compliance with the Act, willingness to cooperate with enforcement officials, and evidence of corrective action already taken.

3. Consistency: enforcement officers will consider how similar situations have been handled when determining the measures to be taken to enforce the Act.

Contacts

Bernard Madé
Chemicals Control Division
National Office of Pollution Prevention
Environment Canada
351 St. Joseph Boulevard, 12th Floor
Hull, Quebec
K1A 0H3
Telephone: (819) 994-3648
FAX: (819) 994-0007
E-mail: Bernard.Made@EC.GC.CA

Geraldine Graham
Alternative Strategies and Regulatory Affairs Division
Pest Management Regulatory Agency
2720 Riverside Drive
Address Locator: 6607D
Ottawa, Ontario
K1A 0K9
Telephone: (613) 736-3692
FAX: (613) 736-3659
E-mail: Geraldine_Graham@HC-SC.GC.CA

Céline Labossière
Regulatory and Economic Analysis Branch
Policy and Communication
Environment Canada
10 Wellington Street, 24th Floor
Hull, Quebec
K1A 0H3
Telephone: (819) 997-2377
FAX: (819) 997-2769
E-mail: Celine.Labossiere@EC.GC.CA

Footnote a 

S.C. 1999, c. 33

Footnote b 

S.C. 1999, c. 33

Footnote 1 

S.C. 1999, c. 33

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