Vol. 152, No. 1 — January 6, 2018

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

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring departments

Department of the Environment
Department of Health

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

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 are 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.

Background

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 pipe and cement flat board); 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.

Rotterdam Convention

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, provisions 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:

In 2000, crocidolite asbestos was listed on Part 2 the ECL. (see footnote 1)

Export of Substances on the Export Control List Regulations

The Export of Substances on the Export Control List Regulations (ESECLR) impose controls on the export of substances listed on the ECL. They describe the manner in which 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.

Objectives

The objective of the proposed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999 (the proposed Order) is to ensure Canada remains in compliance with the Rotterdam Convention after establishing domestic regulatory controls on asbestos.

Description

The proposed Order would make the export of all forms of asbestos subject to the ESECLR. It would add the following types of asbestos to Part 2 of the ECL: actinolite, anthophyllite, amosite, and tremolite. Crocidolite would remain in Part 2 of the ECL. All these substances are currently subject to the Prior Informed Consent of the Rotterdam Convention. Chrysotile asbestos would be added to Part 3 of the ECL, as the substance would be subject to domestic controls that restrict its use in Canada, and Canada would 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 proposed Order would also make the following housekeeping changes, which are not related to the strategy to manage asbestos:

Concurrent regulatory proposals

Concurrently, separate amendments to the ESECLR are being proposed which, together with the proposed Order, would prohibit the export of asbestos and products containing asbestos.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the proposed Order, as the proposed Order would result in an incremental administrative savings to business. It is projected that the proposed Order would result in a decrease in annualized average administrative burden costs of around $100, or $40 per business. (see footnote 2)

The proposed Order would remove 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 Export Control List. This exemption is expected to save half an hour, four times per year.

Small business lens

The small business lens would not apply to the proposed Order, as it would not have any impacts on businesses on its own. The proposed Order is part of a broader regulatory strategy that would involve prohibiting exports of all forms of asbestos and products containing asbestos, with certain exemptions. 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 proposed Prohibition of Asbestos and Asbestos Products Regulations (proposed Asbestos Regulations) and the proposed amendments to the Export of Substances on the Export Control List Regulations.

Consultation

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 Export Control List. Other specific comments requested that all forms of asbestos be listed in Part 1 of the Export Control List (Prohibited substances). The proposed Order would list all forms of asbestos on the Export Control List. Since the proposed Asbestos Regulations would include some exemptions, asbestos is listed in Parts 2 and 3 of the Export Control List.

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 work with the international community to look at options to enhance the effectiveness of the Convention.

Rationale

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 would also need to be controlled in response to domestic policy and in order to remain in compliance with the Rotterdam Convention, since substances subject to prohibitions or severe restrictions (see footnote 3) must be controlled so that an exporting Party notifies the importing Party (Article 12 of the Rotterdam Convention).

The proposed Order would add asbestos to the ECL and would therefore subject asbestos exports to the ESECLR. Together with the separate amendments to the ESECLR being proposed, the proposed Order would limit the export of asbestos and products containing asbestos and ensure Canada’s continued compliance with the Rotterdam Convention.

The proposed Order would also make a minor housekeeping change to align a substance name with the existing listing under the Rotterdam Convention and would remove five ozone-depleting substances whose export is already controlled under separate regulations.

The proposed Order on its own would 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.

Contacts

Nathalie Morin
Director
Chemical Production Division
Department of the Environment
351 Saint-Joseph Boulevard, 19th Floor
Gatineau, Quebec
K1A 0H3
Email: ec.substancedexportationcontrolee-exportcontrolledsubstance.ec@canada.ca

Matthew Watkinson
Director
Regulatory Analysis and Valuation Division
Department of the Environment
200 Sacré-Cœur Boulevard
Gatineau, Quebec
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Minister of the Environment and the Minister of Health, pursuant to section 100 of that Act, propose to make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.

Any person may, within 75 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Order or, within 60 days after the date of publication of this notice, file with that Minister a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to the Chemical Production Division, Environmental Protection Branch, Department of the Environment, Gatineau, Quebec K1A 0H3 (tel.: 819-938-4228; fax: 819938-4218; email: ec.substancedexportationcontrolee-exportcontrolledsubstance.ec@canada.ca).

A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Gatineau, November 28, 2017

Catherine McKenna
Minister of the Environment

Ottawa, November 23, 2017

Ginette Petitpas Taylor
Minister of Health

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

Amendments

1 Item 19 of Part 2 of Schedule 3 to the Canadian Environmental Protection Act, 1999 (see footnote 4) 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:

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 Asbestos Products Regulations come into force, but if it is registered after that day, it comes into force on the day on which it is registered.

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