Proposed regulations for coal tar-based sealant products: consultation document
The Government of Canada (GC) has prepared this consultation document to inform stakeholders and solicit feedback on the key elements of proposed Regulations for Coal Tar-Based Sealant Products. In soliciting input from stakeholders, we posted a copy of the document on the Canadian Environmental Protection Act, 1999 (CEPA) Environmental Registry website, on the Consulting with Canadians website and distributed it by email to known stakeholders, including representatives from other federal departments; provincial, territorial and municipal governments; indigenous groups; industry; environmental groups and public advocacy groups.
The Government of Canada is committed to providing interested or affected parties with the opportunity to take part in consultations at all stages of the regulatory development process. All parties may comment in writing by mail or email to the addresses provided in Section 7 of this document.
All written responses received during the consultation period will be considered prior to drafting and publishing the proposed instrument in Canada Gazette, Part I. A summary of comments received will also be published concurrently with the proposed instrument. We welcome the distribution of this document to other potential stakeholders.
Summary of the Environmental and Human Health Impact Assessments of Coal Tars and their Distillates
As per CEPA, the Minister of the Environment and Climate Change and the Minister of Health have conducted a screening assessment of coal tars and their distillates.
|CAS RNFootnote 1
|Domestic Substances List name
|Tar oils, coal
|Distillates (coal tar), upper
|Tar, coal, low-temperature
|Tar, coal, high-temperature
|Pitch, coal tar, high-temperature
a This substance was not identified under subsection 73(1) of CEPA but was included in this assessment as it was considered a priority.
Data obtained on these six coal tars and their distillates, listed above, were used to assess the risk from all coal tars and their distillates, hereinafter referred to as coal tars.
Coal tars may be released into the air from activities associated with their production, transportation and storage, and to water and soil from product use and disposal. The exposure sources of concern, identified in the screening assessment, are based on the release of coal tars from application and wear of coal tar-based sealant products on surfaces such as driveways and roofs. Exposure sources of concern were also found from handling and storage at steel mill facilities and processing, storage and handling at coal tar refining facilities.
Polycyclic aromatic hydrocarbons (PAHs), present as major coal tar components, demonstrate acute and chronic toxicity to aquatic and terrestrial organisms and, based on this, these substances are considered to be a high hazard to the environment. In addition, releases of coal tar substances to water from the application and use of coal tar-based pavement sealants have the potential to exceed levels that elicit adverse effects in aquatic organisms based on estimated releases of PAHs from these products.
Additionally, the margins of exposure for the ingestion of house dust containing PAHs associated with the use of coal tar-based sealant products and estimates of cancer potency are considered potentially inadequate to address uncertainties related to human health effects and exposure databases.
On the basis of the information available, the screening assessment concluded that coal tars are toxic under section 64 of CEPA because they 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 constitute or may constitute a danger in Canada to human life or health.
Risk management objectives
Risk management objectives set quantitative or qualitative targets to be achieved by the implementation of risk management regulations, instruments and tools for a given substance or substances. In this case, the proposed risk management objectives for coal tar-based sealant products Regulations are to reduce concentrations of coal tars in dust in indoor environments to levels that are protective of human health, and reduce their release to levels that are protective of the environment.
Coal tars are considered to be substances of Unknown or Variable composition, Complex reaction products or Biological materials (UVCBs). They are complex mixtures of hydrocarbons (mainly aromatic), phenolics, and heterocyclic oxygen, sulphur and nitrogen compounds, and, as such, have no specific chemical formula or structure.
Coal tars are the condensation products obtained by cooling, to approximately ambient temperature, the gas evolved in the destructive distillation (pyrolysis) of coal. This process occurs at integrated steel mills, with the resulting coal tars often delineated by the pyrolysis temperature (low or high).
Coal tar distillates are various boiling point fractions derived from the distillation of coal tars at a coal tar refiner, and include both the fractions obtained from the distillation tower as well as the residue (pitch) remaining following distillation.
Four substances present as components of coal tars are already listed in Schedule 1 of CEPA: PAHs, which are the major components of coal tar, benzene, naphthalene, and quinoline.
An estimated 165 to 220 kilotonnes of coal tar is produced annually in Canada. From this, about 82 to 100 kilotonnes of coal tar pitch, and an unknown quantity of coal tar oils and coal tar upper distillates, are produced.
Uses of products containing coal tars in pavement sealants and roofing systems
Coal tar-based sealant products are comprised of pavement sealants, and built-up roofing systems for flat and low-slope roofs. Both of these product types are used in Canada, as confirmed in the reports received from the Notice to provide information for the risk management of certain coal tars and their distillates published in December 2018. They contain approximately 15 to 30% high-temperature coal tar pitch (CAS RN 65996-93-2) emulsified in water, and are available in the Canadian retail market with limited availability in stores across Canada in do-it-yourself products used by consumers. They can also be used by pavement sealing contractors. Coal tar-based pavement sealants may be used on a variety of surfaces including but not limited to residential driveways, and small commercial or residential parking lots. They are not applied to roadways or airport tarmacs in Canada.
Coal tar pitch may also be used in roofing systems for buildings with flat and low-slope roofs in Canada.
Coal tar-based pavement sealants constitute one of several types of pavement sealants in the Canadian retail market. Alternative pavement sealers are widely available and include asphalt-based pavement sealants, acrylic co-polymers and organic concrete sealants including acrylic sealers, epoxy coatings, urethane sealants, polyureas, and polyaspartics. Products using emulsified agents instead of cutback solvents are also an alternative. Lastly, soybean-based sealers, which comprise of a soybean-based emulsion in water, are available on the market.
For roofing applications, there are many alternatives to coal tar pitch used as a waterproofing agent in dead-level or low slope built-up roofs. These alternatives include: polyvinyl chloride (PVC) membrane; ethylene propylene diene terpolymer (EPDM) rubber, a durable synthetic rubber roofing membrane widely used in low-slope buildings; and Thermoplastic Polyolefin (TPO), a single-ply reflective roofing membrane made from polypropylene and ethylene-propylene rubber polymerized together.
Currently there are no regulations restricting or prohibiting coal-tar based sealant products in Canada. Therefore, to achieve the risk management objectives noted above, Regulations will be developed under section 93 of CEPA that would prohibit the import and manufacture of coal tar-based sealant products in Canada. This approach will eliminate further releases from refined coal tar-based sealant products and will result in the elimination of exposure, over time, to the general public (human health) and to the environment.
The proposed Regulations will be published in Canada Gazette, Part I and be followed by a minimum 70-day public comment period.
As part of its regulatory reform, the Government of Canada has introduced the “one-for-one” rule and the Small Business Lens. In moving forward with the proposed Regulations, GC will apply these two approaches to ensure that administrative burden is reduced where possible and that small businesses are taken into account with respect to any administrative and compliance challenges.
The “one-for-one” ruleFootnote 2 is aimed at reducing administrative burden on business and limiting growth in the number of federal regulations. It will require regulators to remove a regulation each time they introduce a new regulation that imposes administrative burden; and when a new or amended regulation increases administrative burden on business, the Government will also offset, from existing regulations, an equal amount of administrative burden costs for business.
The “one-for-one” rule is intended to be implemented in a manner that does not compromise environmental protection objectives. The Rule is one of several requirements that must be considered when deciding on the most appropriate Risk Management (RM) instrument for a given situation. In this case, as the instrument chosen is a regulation, the “one-for-one” rule may apply.
Small business lens
The purpose of introducing a small business lens is to ensure that the specific needs of small business are considered and that the least burdensome but most effective approach to addressing the risk management needs is identified. Small businesses are defined as any business, including its affiliates, that has fewer than 100 employees or between $30,000 and $5 million in annual gross revenues.
Modern treaty obligations and indigenous engagement and consultation
Federal departments and agencies are responsible for ensuring that all initiatives are designed and implemented in a way that respects modern treaties and the rights of modern treaty holders, which are protected under section 35 of the Constitution Act, 1982.
The proposed Regulations are not expected to have direct impacts on Indigenous peoples and no modern treaty obligations are expected to be affected.
Socio-economic and technical considerations
Socio-economic factors are being considered in the development of potential Regulations as identified in the Cabinet Directive on Regulation (TBS, 2018) and the guidance document Assessing, Selecting, and Implementing Instruments for Government Action (TBS, 2007) by the Treasury Board of Canada Secretariat.
Elements of the proposed regulations
The regulations would apply to the manufacture or import of any coal tar-based sealant product. This would be a complete prohibition, and therefore would not include concentration limits in any products. The Regulations are expected to ultimately eliminate coal tar-based sealant products from the market, therefore coal-tar based sealants, used for surfaces including driveways and low-slope roofing systems, would no longer be available to contractors and consumers. Safer alternative products are available and are discussed in section 3.1 above. Products containing trace amounts of coal tar would be excluded from the Regulations.
All manufactured and imported coal tar-based sealant products are expected to be covered by these Regulations. Comments on the usage of products that should be considered for exemption can be provided for products for which there are no technically and economically viable alternatives. These comments must be accompanied with clear evidence demonstrating why there are no technically and economically viable alternatives to these usages.
Exemptions for goods in transit for export will be considered for these Regulations as these products are unlikely to pose environmental or health risks in Canada given transport safety regulations.
There are no anticipated labelling requirements.
Testing and accreditation requirements
It is proposed that provisions on the use of accredited laboratory and test methods would be included in the proposed Regulations. The purpose of including test methods in the proposed Regulations would be to indicate to the regulated community the test methods that would be used by the Government of Canada to verify compliance with the Regulations.
There are no anticipated reporting requirements.
Under the proposed Regulations, regulatees would be required to retain all relevant records for a period of at least five years beginning on the date of their creation, and to make the records available to the Minister of Environment or an enforcement officer upon request.
In order to reduce administrative burden, the information required under the proposed record-keeping requirements would be information already collected under other existing regulations and/or readily available. For example, product name, quantity manufactured and/or imported.
Coming into force
The Regulations would come into force after a transition period following their publication in Canada Gazette, part II. The Government of Canada is considering a transition period of 6 months to allow a suitable transition time away from coal tars to their alternatives.
Administration and compliance verification
Regulated manufacturers and importers would be subject to enforcement and compliance requirements and penalties as specified under CEPA.
Economic and other considerations
Economic, safety and environmental impacts will be considered during the development of the measures outlined in the preceding sections. Based on preliminary information, data gaps such as the actual quantity of coal tar in sealant products manufactured in and imported into Canada, as well as the use pattern of these products, have been identified. Studies were conducted to gather the necessary information on coal tars in products in order to build knowledge in order to address these data gaps. GC will be consulting stakeholders for feedback and input on these considerations during the development of the proposed Regulations, as well as part of the public consultation following publication of the proposed Regulations in Canada Gazette, Part I.
To assist with the development of the proposed Regulations, we are soliciting information from stakeholders. Below are questions and areas of interest for which input is being sought. Submissions should be submitted as per the instructions contained in Section 7 below.
- What sealant products are you importing or manufacturing that contain coal tars? Please specify the product name and use.
- What are the quantities (kilograms) of the products manufactured/imported per year?
- What quantities of coal tars are contained in these products (kilograms)?
- What are the concentrations of coal tar substances in these products?
- Do you export sealant products that contain coal tars?
- Are there any essential uses of these sealant products that we should consider exempting from these proposed Regulations? If so, please provide scientific rationale as to why alternatives would not be technologically or economically feasible.
- How long could it take for your company to transition to coal tar-free sealant products? Please provide any information regarding the alternatives you are considering including technical, economic, health and environmental data.
- During our research on the possible uses of coal tar in products, it was noted that this product could be used in Coal Tar Enamel (CTE) as a pipeline coating material. We would like to have more information on this possible use in Canada to have a better idea of the current situation. Do you import or manufacture CTE? If yes, please provide the quantities of CTE manufactured/imported per year (kilograms).
- How much coal tars are contained in the CTE (kilograms)?
- What is the concentration of coal tars in the CTE?
- Are you considering replacing CTEs with coal tar-free alternatives? Please provide any information regarding CTEs and the alternatives you are considering including technical, economic, health and environmental data.
- Do you have any proposed methodology to evaluate the presence or absence of coal tars in a sealant product? Please provide details regarding this methodology including detection limits.
Please provide any other information that may help inform decisions on the development of these proposed Regulations.
Industry and other interested stakeholders are invited to submit comments on the content of this consultation document or to provide other information that would help inform decision-making. They are also invited to submit information on how they wish to receive information from GC on existing and new regulations. Please submit comments prior to February 10, 2022.
In addition, the Government of Canada welcomes the sharing of this document with other interested stakeholders. The document is posted on the CEPA Registry website.
Comments on this regulatory proposal should be submitted to the addresses provided below. It is expected that the proposed Regulations will be published in Part I of the Canada Gazette for a 70-day public comment period, in the summer of 2023. We may also engage in bilateral discussions with stakeholders as part of this consultation process. The final Regulations would then be published in Canada Gazette Part II in the Fall of 2024.
Environment and Climate Change Canada
Place Vincent Massey, 9th Floor
351 St. Joseph Boulevard
By Email: Produits-Products@ec.gc.ca
By phone: 819-938-4483 / 1-888-391-3426
*Please include “Consultation - Products Containing Coal Tars” in the subject line of your email or document
Annex: Actions in other jurisdictions
Regulatory initiatives directly targeting the use of coal tar-based sealant products were initiated in the United States when scientists confirmed, in the mid-2000s, that these types of sealants release PAHs, which can be harmful to human and ecosystem healthFootnote 3Footnote 4 . As of today, coal tar sealants are banned in two states (Washington and Minnesota), in the District of Columbia, and in more than 30 cities and counties across the United States.
The European Union enacted the registration, evaluation, authorisation and restriction of chemicals (REACH) regulation on June 1, 2007. One goal of the regulation is to identify substances of very high concern (SVHC) and to adequately control and replace them with alternative substances. In January 2010, pitch, coal tar, high-temp was included in the List of substances of very high concern (SVHC) pursuant to Article 59(8) of REACH, becoming a candidate for eventual inclusion in Annex XIV (Authorisation List). Pitch, coal tar, high-temp was submitted to the authorisation list in 2019, with a sunset date on April 10th, 2020. This means that it is prohibited to produce or use this substance in the European Union without an authorisationFootnote 5 .
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