Vol. 139, No. 19 — September 21, 2005

Registration
SOR/2005-262 August 31, 2005

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999

P.C. 2005-1506 August 31, 2005

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 April 24, 2004, a copy of the proposed Order Adding Toxic Substances to Schedule 1 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;

And whereas, pursuant to subsection 90(1) of that Act, the Governor in Council is satisfied that the substances set out in the annexed Order are toxic substances;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 90(1) of the Canadian Environmental Protection Act, 1999 (see footnote c), hereby makes the annexed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999.

ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

AMENDMENT

1. Schedule 1 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is amended by adding the following in numerical order:

72. Tetrachlorobenzenes, which have the molecular formula C₆H₂Cl₄

73. Pentachlorobenzene, which has the molecular formula C₆HCl₅

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.)

Description

The purpose of this initiative is to add the following two substances to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA 1999):

• tetrachlorobenzenes (TeCBs)
• pentachlorobenzene (QCB)

These two chlorobenzenes (CBzs) were originally specified on the first Priority Substance List (PSL1). Substances on the PSL1 were identified as a priority for assessment to determine whether environmental exposure to them posed a risk to the health of Canadians or to the environment. At the time of their first scientific assessment in 1993, the available information was insufficient to conclude whether the substances constitute a danger to the environment. A follow-up scientific assessment concluded that these substances are entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity, in accordance with CEPA 1999, paragraph 64(a).

Pursuant to subsection 332(1) of CEPA 1999, a proposed Order recommending that these substances be added to the List of Toxic Substances in Schedule 1 was published in the Canada Gazette, Part I, on April 24, 2004.

Because TeCBs and QCB are considered to be toxic under the Act and meet the criteria of bioaccumulation, persistence and anthropogenicity as set in the Toxic Substances Management Policy, the ultimate environmental objective for TeCBS and QCB is virtual elimination of their releases to the environment. Since there is currently no commercial demand for pure form of QCB and TeCBs in Canada, options to prevent their reintroduction into the Canadian market will be explored.

To obtain more information on these substances or a copy of the follow-up assessment report, visit the "Existing Substances Evaluation" Web site, at www.ec.gc.ca/substances/ese/eng/psap/ psl1-1.cfm, or contact the Existing Substances Branch, Environment Canada, Gatineau, Quebec, K1A 0H3; facsimile (819) 953-4936; e-mail ESB.DSE@ec.gc.ca.

Background

As stated above, TeCBs and QCB, which appeared on the PSL1 were assessed to determine whether these substances should be considered "toxic" as defined under the Canadian Environmental Protection Act of 1988 (CEPA 1988). It was concluded in the PSL1 assessment that these compounds did not constitute a danger in Canada to the environment on which human life depends or to human life or health; however, there was insufficient information to conclude whether they could have immediate or long-term harmful effects on the environment, under paragraph 11(a) of CEPA 1988. At the time, concentration data for TeCBs and QCB in freshwater and marine sediments and soil environments were lacking. Corresponding data reporting effects on benthic (i.e. organisms living near or at the bottom of a water body) and soil-dwelling organisms were also needed to complete this assessment.

Subsequent to the completion of the PSL1 assessments, these two substances were removed from the first Priority Substances List. Research studies to address these data gaps for TeCBs and QCB were funded, and an emphasis was placed on studies that examined effects on benthic organisms exposed to QCB and TeCBs. Additionally, recent literature was reviewed for new data on concentrations in sediment and soil for each of the chlorobenzenes under consideration, and for information on the effects on organisms resulting from exposure to these compounds.

Based on the research results of these follow-up studies, it has been concluded that TeCBs and QCB are entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity. Therefore, the Government recommends the addition of TeCBs and QCB to the List of Toxic Substances of CEPA 1999.

Authority

Section 68 of CEPA 1999 provides the Minister of the Environment and the Minister of Health with the authority to determine whether a substance is "toxic" or capable of becoming "toxic" as defined under section 64 of the Act. A substance is determined to be "toxic" if it is entering or may enter the environment in a quantity or concentration or under conditions that:

(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;

(b) constitute or may constitute a danger to the environment on which life depends; or

(c) constitute or may constitute a danger in Canada to human life or health.

TeCBs and QCB are persistent and bioaccumulative, according to the Persistence and Bioaccumulation Regulations, predominately anthropogenic, and are considered as "toxic" under paragraph 64(a) of CEPA 1999.

The responsibility for assessing substances is shared by Environment Canada and Health Canada. The assessment process includes examining potential effects to humans and other organisms, as well as determining the entry of the substance into the Canadian environment, the environmental fate of the substance, and the resulting exposure.

Upon completion of the evaluation of data collected or generated for each substance, a draft report of the results of the investigations has been prepared and made available to the public. In addition, the Ministers can publish the following in the Canada Gazette, Part I:

1. a summary of the results of the investigation; and
2. provide information and make recommendations respecting any matter in relation to a substance, including, without limiting the generality of the foregoing, measures to control the presence of the substance in the environment.

Once a substance is added to the List of Toxic Substances in Schedule 1 of CEPA 1999, the Government may regulate it or propose other instruments respecting preventive or control actions (for example, a pollution prevention plan, an environmental emergency plan).

Tetrachlorobenzenes (TeCBs) and Pentachlorobenzene (QCB)

Pure forms of TeCBs and QCB are not produced in Canada, and currently there is no commercial domestic demand for these substances. There are also no known natural sources of TeCBs or QCB. They are found as contaminants in certain pesticides and are produced inadvertently in some processes, such as incineration. These CBzs are existing organic substances where chlorine atoms are substituted for hydrogen atoms in the benzene ring.

TeCBs and QCB may be generated when organic compounds are burned. Recent data suggests that barrel burning of household garbage emits far larger amounts of CBzs (mostly in the ash) than other forms of incineration and could be a potentially significant source. Under the Canada-U.S. Strategy for the Virtual Elimination of Persistent Toxic Substances in the Great Lakes (Binational Toxics Strategy), a strategy and implementation plan was developed to address the issue of barrel burning. Although the reduction of dioxin and furan emissions was the driving factor behind the development of this strategy, the reduction of several other toxic emissions, including CBzs, is an acknowledged benefit of its implementation. Furthermore, a regulatory approach is used in several Canadian jurisdictions to either prohibit open burning or permit it only under pre-approved conditions.

The main reported source of CBzs to Canadian soils is accidental spillage of industrial chemicals, including dielectric fluids (liquid insulating fluids used in cables and transformers) containing polychlorinated biphenyls (PCBs). Formerly, TeCBs and QCB were used in combination with polychlorinated biphenyls (PCBs) in dielectric fluids. However, after regulations prohibiting new uses of PCB-containing dielectric fluids were introduced in 1980 (Canada Gazette, 1980), the amount of QCB used for this purpose declined considerably. Other possible sources include industrial emissions to the atmosphere and application of sewage sludge to agricultural soils.

TeCBs and QCB are known to cause both chronic and acute effects on sediment and soil-dwelling organisms. In general, sediment-dwelling organisms are more sensitive to these CBzs than soil-dwelling species, based on toxicity studies to date. Additionally, TeCBs and QCB are subject to atmospheric transport from its source to remote areas.

Based on available data, the assessment concluded that TeCBs and QCB are entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity, and that TeCBs and QCB are considered "toxic" as defined under paragraph 64(a) of CEPA 1999.

It is therefore recommended that both TeCBs and QCB be added to the List of Toxic Substances in Schedule 1 of CEPA 1999.

QCB and TeCBs are persistent, bioaccumulative, predominantly anthropogenic and are considered "toxic" under paragraph 64(a) of CEPA 1999, and, as such, meet the criteria for virtual elimination under the Toxic Substances Management Policy. The federal Toxic Substances Management Policy puts forward a preventive and precautionary approach to deal with substances that enter the environment and could harm the environment or human health. As there is currently no commercial demand for QCB and TeCBs in Canada, options to prevent their reintroduction into the Canadian market are being explored.

Alternatives

The follow-up assessment report concludes that the two substances are entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity. Consequently, the Ministers have determined that the alternative of taking no further action is not acceptable for these two substances.

Benefits and Costs

The decision to add the substances to the List of Toxic Substances in Schedule 1 of CEPA 1999 is based primarily on scientific assessments. The Government will undertake an appropriate assessment of the potential impacts of a range of possible instruments during the risk management phase of TeCBs and QCB.

Consultations

A Notice concerning the follow-up assessment for these two substances under CEPA 1999 was published in the Canada Gazette, Part I, as follows:

date	description
September 28, 2002:	Publication of Results of Investigation and Recommendations for the Substances – 1,2-Dichlorobenzene, 1,4-Dichlorobenzene, Trichlorobenzenes, Tetrachlorobenzenes, and Pentachlorobenzene

The above Notice was posted on the "CEPA Registry" Web site. It offered interested parties a 60-day comment period; however, no comments were received during this period and, as such, no substantive revisions have been made to the follow-up assessment report.

The order proposing to add TeCBs and QCB to the List of Toxic Substances in Schedule 1 of CEPA 1999 was then pre-published in the Canada Gazette, Part I, on April 24, 2004. The comments received during the subsequent 60-day comment period supported the scientific finding that TeCBs and QCB are "toxic" as defined in section 64 of CEPA 1999. The comments focused primarily on issues of risk management options. These comments have been forwarded to risk managers for their consideration.

CEPA National Advisory Committee

The CEPA National Advisory Committee has been given an opportunity to advise the Minister of the Environment and the Minister of Health on the scientific evidence supporting the declaration of these two substances as toxic, and their proposal to have them added to the List of Toxic Substances in Schedule 1 of CEPA 1999. There were no concerns raised with respect to the addition of these substances to the List of Toxic Substances in Schedule 1 of the Act.

Compliance and Enforcement

There are no compliance or enforcement requirements associated with the List of Toxic Substances in Schedule 1 of CEPA 1999 itself.

Contacts

Danie Dubé
Existing Substance Branch
Environment Canada
Gatineau, Quebec
K1A 0H3
Telephone: (819) 953-0356
FAX: (819) 953-4936
E-mail: danie.dube@ec.gc.ca

Céline Labossière
Regulatory and Economic Analysis Branch Environment Canada
Gatineau, Quebec
K1A 0H3
Telephone: (819) 997-2377
FAX: (819) 997-2769
E-mail: celine.labossiere@ec.gc.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

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