FEDERAL REG

Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 (2016)

PROPOSED FEDERAL REGULATION - VIA PART I OF THE GAZETTE

Proposed
April 23, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues Canadians benefit from the use of chemical substances in the manufacture of hundreds of goods, from medicines to computers, fabrics, and fuels. However, depending on concentration and potential exposure, some chemical substances may pose a risk to human health or the environment. The Government of Canada has co... (Click for more)


House

1st Reading 2nd Reading 3rd Reading

Senate

1st Reading 2nd Reading 3rd Reading

Published on April 23, 2016

Bill Summary

Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 (2016)

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues Canadians benefit from the use of chemical substances in the manufacture of hundreds of goods, from medicines to computers, fabrics, and fuels. However, depending on concentration and potential exposure, some chemical substances may pose a risk to human health or the environment. The Government of Canada has conducted a screening assessment of Fuel Oil No. 2 (Chemical Abstracts Service Registry Number (see footnote 1) 68476-30-2) and determined that Fuel Oil No. 2 is entering or may enter 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 as defined under paragraph 64(a) of the Canadian Environmental Protection Act, 1999 (“CEPA” or the “Act”). Background On December 8, 2006, the Government of Canada launched the Chemicals Management Plan (CMP) to assess and manage chemical substances that may be harmful to human health or the environment. (see footnote 2) A key element of the CMP is the Petroleum Sector Stream Approach (PSSA), which addresses approximately 160 petroleum substances, including Fuel Oil No. 2, that were considered to be of high priority for risk assessment, as they were determined to present either the “greatest” or “intermediate” potential for exposure to individuals in Canada, and were considered to present a high hazard to human health and the environment. These petroleum substances were divided into five streams (streams 0 to 4) based on their use profiles. (see footnote 3) Within each stream, the substances were further divided into groups according to their physical and chemical properties as well as similarities in production. Fuel Oil No. 2, subject of the proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 (the proposed Order), is one of the substances found in Stream 3 of the PSSA. Stream 3 substances are primarily used by industries and consumers as fuels. Substance description Fuel Oil No. 2 is a distillate fuel oil formed by vaporizing, condensing and blending petroleum components that are obtained from the atmospheric distillation of crude oil or bitumen. (see footnote 4) Fuel Oil No. 2 is produced at refineries and upgraders in Canada, with most being produced in Eastern Canada. Fuel Oil No. 2 is used primarily as a fuel source for home heating, but is also used in medium capacity commercial/industrial burners. Based on available information, in 2006, approximately 8 billion litres of distillate fuel (the majority being Fuel Oil No. 2) were produced (99%) in or imported (1%) into Canada. Of this amount, about 50% was exported, 25% was used as a fuel for home heating, 19% was used in commerce (e.g. for heating and power generation), and 6% was kept in inventory. In 2011, only 7% of Canadian homes (about 870 600) used Fuel Oil No. 2 as a primary source for home heating. Summary of the screening assessment A screening assessment was conducted on Fuel Oil No. 2 to determine whether it meets one or more of the criteria for a toxic substance as set out in section 64 of CEPA. Specifically, this involved determining whether Fuel Oil No. 2 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. Human health assessment The human health assessment determined that the predominant route of exposure to Fuel Oil No. 2 was inhalation (from potential exposure to fuel evaporative emissions), and estimates of cancer potency for inhalation of benzene (a component of Fuel Oil No. 2 known to be carcinogenic) were used to describe the risk to human health. Based on a review of the available information, the screening assessment determined that the risk to the general population (following residential fuel storage tank leaks) and to those living in the vicinity of Fuel Oil No. 2 bulk storage facilities is considered to be low. Therefore, it was concluded that Fuel Oil No. 2 does not meet the criterion under paragraph 64(c) of CEPA, as it is not entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger in Canada to human life or health. Ecological assessment Determining the risk that a chemical substance poses to the environment involves the consideration of data relevant to its environmental behaviour (e.g. fate in the environment, persistence, and potential to bioaccumulate in organisms or biomagnify in food webs), its ecotoxicity and exposure to the substance by potentially affected non-human organisms from the major known sources of release to the Canadian environment. Conclusions regarding risk to the environment take into consideration existing controls in place and are based in part on an estimation of environmental concentrations resulting from releases and the potential for these concentrations to have a negative impact on non-human organisms and/or environmental health. Using available data on the toxicity of the substance to organisms in water, sediment, soil, and/or air, predicted “no-effect concentrations” are then determined. The predicted no-effect concentration is the highest concentration of the substance that is unlikely to cause harm, in terms of impact on survival, reproduction, growth, etc., to non-human organisms. Fuel Oil No. 2 can be released (spilled) to the environment during its production, formulation, transportation and use. As part of the ecological assessment, to determine potential ecological harm associated with this substance, concentrations of Fuel Oil No. 2 in the environment were compared to concentration levels at which the substance may cause harm to the environment. To estimate the concentration of Fuel Oil No. 2 in the Canadian environment, data on spills reported to the Department of the Environment’s National Enforcement Management Information System and Intelligence System (NEMISIS) database for the years 2000 to 2009 were used. The analysis determined that at least 200–300 spills of Fuel Oil No. 2 occur each year on land, at least half of which are of sufficient volume to result in soil concentrations exceeding the predicted no-effect concentration for soil. This information likely underestimates the number of spills on land nationally due to the limited reporting requirements for NEMISIS. For example, using spill data reported to the province of Ontario, there are at least 160–190 spills per year on land in Ontario, most of which are not reported to NEMISIS; of these 160–190 spills, at least half are of sufficient volume to cause harm to terrestrial organisms. The analysis additionally showed that during ship loading and unloading of Fuel Oil No. 2, there are approximately 12 spills per year of sufficient volume to result in aquatic concentrations greater than the predicted no-effect concentration for water. Recorded impacts in NEMISIS from Fuel Oil No. 2 spills include impacts on migratory birds, oiled birds, fish kills, other wildlife damage and vegetation damage. Based on the available information presented in the screening assessment on the frequency and magnitude of spills, it is concluded that Fuel Oil No. 2 may cause harm to organisms in areas adjacent to sources of release because spills have been identified as harmful to freshwater, marine, and terrestrial organisms. However, these releases do not compromise the broader integrity of the environment. It is therefore concluded that Fuel Oil No. 2 meets the criterion for a toxic substance under paragraph 64(a) of the Act as it is entering or may enter 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. It is also concluded that Fuel Oil No. 2 does not meet the criterion under paragraph 64(b) of CEPA as it is not entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger to the environment on which life depends. The final Screening Assessment for Fuel Oil No. 2 was published on the Government of Canada’s Chemical Substances Web site along with a notice published in the Canada Gazette, Part I, on February 21, 2015. The notice stated that the Minister of the Environment and the Minister of Health (the ministers) found Fuel Oil No. 2 to meet one of the criteria set out under section 64 of CEPA and they decided to recommend the addition of the substance to Schedule 1 of the Act. (see footnote 5) This addition would enable the Minister of the Environment (the Minister) to propose risk management activities to reduce potential risks posed by Fuel Oil No. 2, should such activities be deemed necessary. Existing control measures in Canada and abroad Fuel Oil No. 2 can be released to the environment during its production, formulation, transportation and use. In Canada, there is already an extensive regulatory regime for the management of Fuel Oil No. 2 with respect to pollution prevention and response (including discharges), prevention of incident (when dangerous goods are imported, handled, offered for transport or transported), and storage. (see footnote 6), (see footnote 7), (see footnote 8) Many of the storage measures, including those in Manitoba, Newfoundland and Labrador, Ontario, and Prince Edward Island, include requirements for the construction, installation, maintenance, or repair of residential storage tanks for Fuel Oil No. 2. In other provinces and territories, including British Columbia, the Northwest Territories, Nova Scotia, and Nunavut, guidance regarding residential heating fuel storage is available for homeowners. Some municipalities have bylaws requiring permits and inspection for the installation, removal or repair of home heating oil systems. In the United States, there are several regulations pertaining to refineries and to the transportation of substances that may pose a flammability or explosion hazard, substances that include Fuel Oil No. 2. (see footnote 9), (see footnote 10) In Europe, there are principles set on industrial emissions and regulations addressing the transportation of Fuel Oil No. 2. (see footnote 11), (see footnote 12) Also, there are regulations addressing the control of pollution. (see footnote 13) Objectives The objective of the proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 is to enable the ministers to propose risk management instruments under CEPA to manage potential risks associated with Fuel Oil No. 2, should such instruments be deemed necessary. Description The proposed Order would add Fuel Oil No. 2 to Schedule 1 of CEPA. “One-for-One” Rule The proposed Order would not add administrative costs to industry; therefore, the “One-for-One” Rule does not apply to this proposal. Rather, the proposed Order is an enabling instrument that allows the ministers to propose risk management measures with respect to Fuel Oil No. 2. Small business lens The proposed Order would not add a compliance or administrative burden on small business; therefore, the small business lens does not apply to this proposal. Rather, the proposed Order is an enabling instrument that allows the ministers to propose risk management measures with respect to Fuel Oil No. 2. Consultation The ministers published a summary of the draft Screening Assessment report for Fuel Oil No. 2 on June 1, 2013, in the Canada Gazette, Part I, for a 60-day public comment period. The Screening Assessment proposed that Fuel Oil No. 2 meets the criteria under paragraph 64(a) of the Act. A risk management scope document outlining the preliminary options being examined for the management of this substance was released on the same date, on the Chemical Substances Web site. During the 60-day public comment period, one submission was received with comments on the draft Screening Assessment and on the risk management scope document. (see footnote 14) All comments were considered during the finalization of the Screening Assessment and during the development of the proposed risk management approach document, which is also subject to a 60-day public comment period. Summary of public comment on the draft Screening Assessment and response. An industry association noted that benzene was considered as a component of Fuel Oil No. 2 in the assessment for the bulk storage evaporative emissions scenario. The commenter reported that benzene content in Fuel Oil No. 2 is at or below detection levels, if it is present at all. Response: The Department of Health considered several constituents in Fuel Oil No. 2 and other related gas oil substances. Benzene was included in the assessment of Fuel Oil No. 2 due to its presence in other gas oils and in measured emissions from gas oil bulk storage tanks. Prior to the publication of the draft Screening Assessment report and risk management scope document, the Department of the Environment and the Department of Health had informed provincial and territorial governments through the National Advisory Committee of CEPA (CEPA NAC) of their release and public comment period. No comments were received from CEPA NAC. Rationale Fuel Oil No. 2 is a distillate fuel oil produced at refineries and upgraders in Canada and is primarily used as a fuel source for home heating, but is also used in medium capacity commercial/industrial burners. Fuel Oil No. 2 may be released (spilled) to the environment during its production, formulation, transportation and use. Based on an analysis of estimated concentration levels at which the substance may cause harm to aquatic and terrestrial environments and the estimated frequency, volume and impact of spills in Canada, it was determined that Fuel Oil No. 2 meets the criteria for a toxic substance under paragraph 64(a) of the Act. Subsection 77(2) of CEPA therefore requires that one of the following measures be proposed: taking no further action with respect to the substance; adding the substance to the Priority Substances List for further assessment; or recommending that the substance be added to the List of Toxic Substances in Schedule 1 of CEPA, and where applicable, recommending the implementation of virtual elimination. The proposed addition of Fuel Oil No. 2 to Schedule 1 of CEPA would enable the ministers to propose risk management instruments to manage risks posed by this substance and is, therefore, the preferred option among the three alternatives. The proposed addition of Fuel Oil No. 2 to Schedule 1 of CEPA would not result in any incremental impacts (benefits or costs) on the public or industry, since the proposed Order would not impose any compliance requirements on stakeholders. Accordingly, there would be no administrative burden imposed on small businesses or businesses in general. In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a strategic environmental assessment was completed. The assessment is available at the following address: http://www.chemicalsubstanceschimiques.gc.ca/plan/seaees-eng.php. Implementation, enforcement and service standards The proposed Order would add Fuel Oil No. 2 to Schedule 1 of CEPA, thereby enabling the ministers to publish proposed regulations or instruments respecting preventive or control actions no later than February 2017 and finalize them no later than August 2018. Developing an implementation plan or a compliance strategy, or establishing service standards, is not considered necessary without any specific risk management proposal. An appropriate assessment of implementation, compliance and enforcement would be undertaken during the development of proposed instruments to manage risks posed by Fuel Oil No. 2. Contacts Greg Carreau Program Development and Engagement Division Department of Environment Gatineau, Quebec K1A 0H3 Substances Management Information Line Telephone: 1-800-567-1999 (toll-free in Canada) Telephone: 819-938-3232 (outside of Canada) Fax: 819-938-5212 Email: [email protected] Michael Donohue Risk Management Bureau Department of Health Ottawa, Ontario K1A 0K9 Telephone: 613-957-8166 Fax: 613-952-8857 Email: [email protected] 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 Governor in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 90(1) of that Act, proposes to make the annexed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999. Any person may, within 60 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Order or 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 sent to the Executive Director, Program Development and Engagement Division, Department of the Environment, Gatineau, Quebec K1A 0H3 (fax: 819-938-5212; email: [email protected]). 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. Ottawa, April 14, 2016 Jurica Čapkun Assistant Clerk of the Privy Council 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 15) is amended by adding the following: Fuel Oil No. 2 Coming into Force 2 This Order comes into force on the day on which it is registered. [17-1-o] Footnote 1 The Chemical Abstracts Service Registry Number (CAS RN) is the property of the American Chemical Society, and any use or redistribution, except as required in supporting regulatory requirements and/or for reports to the Government of Canada when the information and the reports are required by law or administrative policy, is not permitted without the prior, written permission of the American Chemical Society. Footnote 2 For more information on the CMP, please visit http://www.chemicalsubstanceschimiques.gc.ca/plan/index-eng.php. Footnote 3 For more information on the PSSA, please visit http://www.chemicalsubstanceschimiques.gc.ca/petrole/index-eng.php. Footnote 4 The composition of Fuel Oil No. 2 can vary depending on the source of crude oil or bitumen; therefore, this substance is considered to be of Unknown or Variable composition, Complex reaction products of Biological materials (UVCB). Footnote 5 These publications can be obtained from the Chemical Substances Web site or from the Program Development and Engagement Division, Environment Canada, Gatineau, Quebec K1A 0H3, 819-938-5212 (fax), [email protected] (email). Footnote 6 For more information on pollution prevention, please see the Ballast Water Control and Management Regulations at http://laws-lois.justice.gc.ca/PDF/SOR-2011-237.pdf and the Vessel Pollution and Dangerous Chemicals Regulations at http://laws-lois.justice.gc.ca/PDF/SOR-2012-69.pdf. Footnote 7 For more information on prevention of incident when dangerous goods are imported, handled, offered for transport or transported, please see the Transportation of Dangerous Goods Act, 1992 at http://laws-lois.justice.gc.ca/PDF/T-19.01.pdf. Footnote 8 For more information on the storage of Fuel Oil No. 2, please see the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations at http://laws-lois.justice.gc.ca/PDF/SOR-2008-197.pdf and the National and Provincial Fire Codes at http://www.nationalcodes.nrc.gc.ca/eng/nfc/index.html. Footnote 9 For more information on regulations pertaining to refineries in the United States, please see the Web pages of the National Emission Standards for Hazardous Air Pollutants (NESHAP) program of the Clean Air Act at https://www3.epa.gov/airtoxics/petrefine/petrefpg.html. Footnote 10 For more information on the transportation of substances that may pose a flammability or explosion hazard, please see the Federal Hazardous Materials Regulations of the U.S. Department of Transportation at http://www.ecfr.gov/cgi-bin/text-idx?SID=a0ad26de397e21351d14d32b4b95f428&tpl=/ecfrbrowse/Title49/49CIsubchapA.tpl. Footnote 11 For more information on the principles set on industrial emissions, please see the Directive on Industrial Emissions at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010L0075&from=EN. Footnote 12 For more information on the regulations addressing the transportation of Fuel Oil No. 2, please see the European Agreement Concerning the International Carriage of Dangerous Goods by Road at http://www.unece.org/fileadmin/DAM/trans/danger/publi/adr/ADRagree_e.pdf, and the Regulation concerning the International Carriage of Dangerous Goods by Rail at http://www.otif.org/fileadmin/user_upload/otif_verlinkte_files/07_veroeff/03_erlaeut/rpex99-rid-e.pdf. Footnote 13 For more information on measures regarding the control of pollutions in Europe please see the Control of Pollution (Oil Storage) (England) Regulations 2001 at http://www.legislation.gov.uk/uksi/2001/2954/pdfs/uksi_20012954_en.pdf, a guidance note for the Water Environment (Oil Storage) (Scotland) Regulations 2006 at http://www.scotland.gov.uk/Resource/Doc/1057/0029448.pdf, and the Control of Pollution (Oil Storage) Regulations (Northern Ireland) 2010 at http://www.legislation.gov.uk/nisr/2010/412/pdfs/nisr_20100412_en.pdf. Footnote 14 For more information on the summary of public comments on the Risk Management Scope document and the Department’s responses, please visit http://www.chemicalsubstanceschimiques.gc.ca/petrole/group-3/index-eng.php. Footnote a S.C. 2004, c. 15, s. 31 Footnote b S.C. 1999, c. 33 Footnote 15 S.C. 1999, c. 33

This Bill does not amend any statutes.

Sign up for alerts on this Bill

Receive emails tracking this Bill's progress.

See all your alerts in a dashboard.

Set an alert with one click and you're done!