Consultation on the update to the national implementation plan on persistant organic pollutants: chapter 3

Chapter 3 - Measures to Reduce or Eliminate Releases from Intentional Production and Use, Import and Export

• Prohibition and/or Elimination of Production and Use of Chemicals Listed in Annex A
• Restriction of Production and Use of Chemicals Listed in Annex B
• Summary of Actions on Production and Use in Canada for the Nine New Persistent Organic Pollutants
• Restrictions on the Import and Export of the New POPs
• Preventing the Production and Use of Chemicals Exhibiting POPs Characteristics

Article 3 of the Convention obligates Parties to prohibit and/or take the legal and administrative measures necessary to eliminate the production, use, import and export of POPs that are listed in Annex A of the Convention. It also obligates Parties to restrict the production, use, import and export of chemicals listed in Annex B. Annexes A and B include exemptions for use and/or production and articles in use - these are discussed in Chapter 4.

Prohibition and/or Elimination of Production and Use of Chemicals Listed in Annex A

Article 3.1 Each Party shall:

(a) Prohibit and/or take the legal and administrative measures necessary to eliminate:

Alpha-HCH, Beta-HCH and Chlordecone: The PCPA has no registered uses for these POPs; therefore, their production, use or sale in Canada as pesticides is prohibited. Since there are no uses of these POPs other than their historical use as pesticides, no additional measures other than those applied through the PCPA are required for Canada to meet its obligations under the Stockholm Convention for elimination of the production and use of these POPs.

Lindane: Lindane has never been manufactured in Canada. As of January 1, 2005, lindane was de-registered for agricultural pest control uses, including veterinary uses, under the PCPA thereby prohibiting production, import and use of lindane as a pesticide.

The only current allowable use of lindane in Canada is for control of head lice and scabies in human health pharmaceuticals under the Food and Drugs Act (see Chapter 4 for further discussion). Canada has claimed the five year exemption for this use and has notified for Articles in Use related to this pharmaceutical use. To ensure that Canada meets these obligations, the Government of Canada has been working with the two companies in Canada that produced lindane-based pharmaceuticals to phase out the use of lindane and lindane-containing products before the expiry of the exemption period (April 4^th, 2016), and to ensure that any remaining stockpiles of lindane and products containing lindane are disposed of in an environmentally sound manner. The use of lindane in the production of lindane-containing products by the two companies ceased by January 2011 and February 2012, respectively. The sale of lindane-containing products ceased by May 2011 for one company and is expected to cease by December 2014 for the other company.

PeCB: PeCB is not currently produced and used in its pure form in Canada. The manufacture, sale, offer for sale, and import of PeCB or any mixture or product containing it have been prohibited under the Prohibition of Certain Toxic Substances Regulations, adopted in 2005, preventing the re-introduction of this POP into Canada. The use of PeCB in dyestuff carriers has been discontinued and the presence of PeCB in PCB transformers (in equipment containing PCBs at a concentration of 500ppm or higher), where it could be found in dielectric fluids used to top up transformers, is being phased out in accordance with Canada's PCB Regulations which were adopted in 2008. The PCB Regulations set specific deadlines for eliminating all PCBs and equipment containing PCBs (including PCB transformers that may use PeCB-containing dielectric fluid):

• equipment containing 500mg/kg or more PCBs by December 31, 2009;
• in the case of equipment containing at least 50mg/kg but less than 500mg/kg of PCBs:
  • by December 31, 2009, if the equipment is located at a drinking water treatment plant or food or feed processing plant, in a child care facility, preschool, primary school, secondary school, hospital or senior citizens' care facility or on the property on which the plant or facility is located and within 100m of it, and
  • by December 31, 2025, if the equipment is located at any other place;
• specific equipment containing 50 mg/kg or more of PCBs by December 31, 2025.

PeCB may also be present as an impurity in some pesticides. Contaminants in pesticides are regulated as part of pest product control under the PCPA. The PMRA works with registrants to reduce/ eliminate microcontaminants of concern in line with best available technology. If the level of the microcontaminant remains unacceptable, the PMRA will work with registrants and other stakeholders to develop alternative products and/or pest control strategies, with the ultimate goal of virtual elimination. As a result of this strategy, since 2010, the level of PeCB in the pesticide quintonzene was reduced below <0.2 ppm, down significantly from the 100 ppm reported previously.

Tetra-BDE, Penta-BDE, Hexa-BDE and Hepta-BDE: These POPs are found in commercial flame retardant mixtures, such as Penta-BDE and Octa-BDE, but have never been produced in Canada. The Polybrominated Diphenyl Ether (PBDE) Regulations, adopted in 2008, prohibit the manufacture of all PBDE groups (including hexa-BDE and hepta-BDE, tetra-BDE and penta-BDE) and polymer resins and other mixtures that contain them. These Regulations also prohibit the use, sale, offer for sale and import of hexa-BDE, tetra-BDE and penta-BDE as well as mixtures, polymers and resins that contain them. As a result, the commercial mixtures containing these substances (Penta-BDE and Octa-BDE) are prohibited and therefore the use of hepta-BDE has also been effectively prohibited.

HBB: Production and use of HBB ceased in Canada by the late 1970s. Nonetheless, this chemical is subject to the Prohibition of Certain Toxic Substances Regulations, adopted in 2005, to prevent the re-introduction of this POP into Canada. This regulation prohibits the manufacture, use, sale, offer for sale and import of all polybrominated biphenyls, which includes HBB.

Restriction of Production and Use of Chemicals Listed in Annex B

Article 3.1 Each Party shall: ...

(b) Restrict its production and use of the chemicals listed in Annex B in accordance with the provisions of that Annex.

PFOS: PFOS, its salts and its precursors are not manufactured in Canada. The primary producer of these substances in the United States voluntarily phased-out PFOS production in 2002, and annual imports by Canada dropped significantly due to this phase-out and to domestic actions restricting its import (further explained below).

PFOS, its salts and its precursors were added to Schedule 1, List of Toxic Substances, of CEPA 1999 on December 27, 2006. The manufacture, use, sale, offer for sale and import of PFOS or products containing PFOS is prohibited under the Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations (PFOS Regulations), adopted in 2008. The provisions of the PFOS Regulations and the exemptions identified under the Regulations are in line with the acceptable purposes and specific exemptions agreed to in the Stockholm Convention (see Chapter 4). In some cases the Regulations are more stringent with exemptions under the PFOS Regulations expiring prior to the expiration date of specific exemptions under the Stockholm Convention. The PFOS Regulations exempt the following:

• the use, sale, offer for sale and import of aviation hydraulic fluid;
• the manufacture, use, sale, offer for sale and import of
  • photo-resists or anti-reflective coatings for photolithography processes; and
  • photographic films, papers and printing plates;
• the use, until May 2013, of PFOS-based aqueous film forming foams (AFFFs) that were manufactured or imported before the coming into force of the PFOS Regulations;
• laboratory use;
• incidental presence;
• PFOS-containing products in use prior to the coming into force of the PFOS Regulations; and
• the use, sale, offer for sale and import, until 2013, of PFOS-based fume suppressants for:
  • chromium electroplating, chromium anodizing and reverse etching;
  • electroless nickel-polytetrafluoroethylene plating; and
  • etching of plastic substrates prior to their metallization.

Canada is actively promoting compliance with the PFOS Regulations and engaging regulatees to assist with the phase-out of those applications having upcoming exemption expiration dates.

Summary of Actions on Production and Use in Canada for the Nine New Persistent Organic Pollutants

Alpha hexachlorocyclohexane (alpha-HCH)

• Pesticide: registration discontinued in the early 1970s
• By-product of the production of lindane as a pesticide: registration of lindane as a pesticide was discontinued in 2005

Beta hexachlorocyclohexane (beta-HCH)

• Pesticide: registration discontinued in the early 1970s
• By-product of the production of lindane as a pesticide: registration of lindane as a pesticide was discontinued in 2005

Chlordecone

• Pesticide: registration discontinued in 2000

Hexabromobiphenyl (HBB)

• Flame retardant: manufacture, use, sale, offer for sale, and import prohibited under CEPA 1999 and the Prohibition of Certain Toxic Substances Regulations

Hexabromodiphenyl ether (hexa-BDE) and Heptabromodiphenyl ether (hepta-BDE)

• Flame Retardant: manufacture, use, sale, offer for sale, and import prohibited under CEPA 1999 and the PBDE Regulations

Lindane

• Pesticide: registration as a pesticide discontinued in 2005
• Human health pharmaceutical: Canada is working with industry to phase out this use by 2014

Pentachlorobenzene (PeCB)

• Pesticide: may be present as a contaminant in pesticides and regulated as such under the PCPA; never registered as a pesticide itself.
• Industrial chemical: use prohibited under CEPA 1999 and the Prohibition of Certain Toxic Substances Regulations, except for the presence of PeCB in some PCB equipment, which is covered in the PCB Regulations

Tetrabromodiphenyl ether (tetra-BDE) and Pentabromodiphenyl ether (penta-BDE)

• Flame Retardant: manufacture, use, sale, offer for sale, and import prohibited under CEPA 1999 and the PBDE Regulations

Perfluorooctane sulfonic acid (PFOS), its salts and perfluorooctane sulfonyl fluoride (POSF)

• Industrial chemical: manufacture, use, sale and offer for sale prohibited under the PFOS Regulations, with a limited number of exemptions (in line with Stockholm Convention - see Chapter 4)

Restrictions on the Import and Export of the New POPs

Article 3 also restricts import and export of POPs that are listed to both Annex A and Annex B of the Stockholm Convention.

3.1 Each Party shall:

(a) Prohibit and/or take the legal and administrative measures necessary to eliminate:

3.2 Each Party shall take measures to ensure:

(a)    That a chemical listed in Annex A or Annex B is imported only:

(b)   That a chemical listed in Annex A for which any production or use specific exemption is in effect or a chemical listed in Annex B for which any production or use specific exemption or acceptable purpose is in effect, taking into account any relevant provisions in existing international prior informed consent instruments, is exported only:

(c)    That a chemical listed in Annex A, for which production and use specific exemptions are no longer in effect for any Party, is not exported from it except for the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6;

(d)   For the purposes of this paragraph, the term “State not Party to this Convention” shall include, with respect to a particular chemical, a State or regional economic integration organization that has not agreed to be bound by the Convention with respect to that chemical.

Import of the New POPs

Canada has taken the following measures regarding the import of the new POPs:

Annex A chemicals

Alpha-HCH, Beta-HCH and Chlordecone: These POPs are not registered under the PCPA and consequently cannot be imported as pesticides. Any pesticide not registered is refused entry and returned to the exporter. No additional measures other than those applied through the PCPA are required for Canada to meet its importing obligations under the Stockholm Convention.

HBB: The import of HBB is prohibited, with certain minor exceptions (e.g., laboratory use and incidental presence--in line with Stockholm Convention exceptions) under the Prohibition of Certain Toxic Substances Regulations, 2005, which prevents the re-introduction of this POP into Canada.

Lindane: The import of lindane as a pesticide is prohibited under the PCPA. During the five year exemption period for the use of lindane in Canada as a human health pharmaceutical for the control of head lice and scabies as a second line treatment, the import of lindane and lindane-containing products for this exclusive use is allowed; however, Canada has been working with the two companies in Canada that produced lindane-based pharmaceuticals to phase out the use of lindane and lindane-containing products before the expiry of the exemption period (April 4^th, 2016). The import of lindane and of lindane-containing products by the two companies has ceased (in September 2010 and February 2012, respectively).

PeCB: The import of PeCB, used as an industrial chemical, is prohibited, with certain minor exceptions (e.g., laboratory use and incidental presence--in line with Stockholm Convention exceptions) by the Prohibition of Certain Toxic Substances Regulations, 2005 preventing the re-introduction of this POP into Canada. As mentioned earlier, PeCB could be found at one time in dielectric fluids used to top up polychlorinated biphenyl (PCB) transformers. The management of PeCB as a component of dielectric fluids is addressed through the PCB Regulations.

Tetra-BDE, Penta-BDE, Hexa-BDE and Hepta-BDE: As mentioned earlier, the PBDE Regulations, adopted in 2008 prohibit the import of tetra-BDE, penta-BDE and hexa-BDE as well as mixtures, polymers and resins that contain them. As a result, the import of commercial mixtures (Penta-BDE and Octa-BDE) containing these substances is prohibited and therefore the import of hepta-BDE has also effectively been prohibited.

Annex B chemicals

PFOS: The import of PFOS and products containing PFOS is prohibited under the PFOS Regulations with certain exceptions (e.g., laboratory use and incidental presence--in line with Stockholm Convention exemptions and acceptable purposes). Please see Restriction of Production and Use of Chemicals Listed in Annex B for the list of the exemptions under the PFOS Regulation and Chapter 4 for a discussion of acceptable purposes and specific exemptions under the Convention.

Export of the New POPs

In Canada, the Export of Substances on the Export Control List Regulations (ESECLR)^[11] is the primary instrument assisting in implementing Canada's export obligations under the Stockholm Convention. The ESECLR applies to the export of substances listed on Schedule 3, the Export Control List, of the CEPA 1999. This list contains substances whose export is controlled because their use in Canada is prohibited or restricted, or because Canada has accepted, through an international agreement such as the Rotterdam Convention, to control their export. Certain provisions of the ESECLR help ensure that Canada meets its export obligations under the Stockholm Convention.

Annex A chemicals

Alpha-HCH, Beta-HCH and Chlordecone: As these pesticides are not manufactured in Canada and there are no remaining stockpiles in Canada, the export of these substances cannot occur. These substances have been added to Schedule 3 of the Export Control List^[12], and will be controlled under the Export of Substances on the Export Control List Regulations (ESECLR).

HBB: HBB is not manufactured in Canada and Canada has no known stockpiles. Therefore, the export of these substances cannot occur. Nevertheless, to provide additional certainty, polybrominated biphenyls (which include HBB) were added to Schedule 3 of CEPA 1999, the Export Control List, and are controlled by the ESECLR. Exports of this POP can only be for the purpose of destruction by Ministerial Order.

Lindane: Actions described below are expected to eliminate the export of lindane in advance of the expiry of Canada's claimed exemption; nevertheless, should any exports occur in the future, they will be permitted only under limited conditions in line with export obligations under the Stockholm Convention. For greater certainty, lindane is included in Schedule 3 of CEPA 1999, the Export Control List, and its export is controlled by the ESECLR.

During the five year exemption period for the use of lindane in Canada as a human health pharmaceutical for the control of head lice and scabies as a second line treatment, exports are permissible only to another Party to the Stockholm Convention that has also registered for the exemption or to a non-Party that provides certification of its environmental standards and for environmentally sound disposal. The Government of Canada has been working with the two companies in Canada that produced lindane-based pharmaceuticals to phase out the use of lindane and lindane-containing products. The export of lindane and of lindane-containing products ceased by May 2011 for one company and will cease by December 2014 for the remaining company. This action will allow Canada to meet its obligations before the expiry of the exemption period (April 4^th, 2016).

PeCB: PeCB was added to Schedule 3 of the Export Control List^[12], and will be controlled by the ESECLR^[11]. This is for greater certainty, given that existing export controls for PCBs effectively control the exports of PeCB. Therefore, should there nevertheless be exports of this POP in the future they will only be permitted under limited conditions that are in line with the terms agreed upon in the Stockholm Convention.

As mentioned earlier, PeCB may be found in fluids used to top-up polychlorinated biphenyl (PCB) transformers. Therefore in addition to the ESLECLR, exports of PCB products^[13] containing PeCB are controlled through the export controls which exist with respect to PCBs. The PCB Waste Export Regulations, adopted in 1996, apply to PCB liquids, PCB solids, PCB mixtures, PCB equipment, PCB-contaminated solid or electrical equipment, and packaging that held any of these materials. The PCB Waste Export Regulations establish strict controls on the export of PCB waste, and are an enhancement of similar controls already in place for hazardous waste under the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (EIHWHRMR). Under the PCB Waste Export Regulations export is only allowed for thermal or chemical destruction at authorized facilities capable of environmentally sound disposal of PCB waste and thus meets export obligations under the Stockholm Convention. Given that the only known application of PeCB in 2006 was in dielectric fluids containing PCBs, these measures in effect, control exports of PeCB.

(Note: It is anticipated that by 2014, the PCB Waste Export Regulations, 1996 will be repealed and the provisions will be incorporated into the EIHWHRMR. Exports of PCB waste destined for destruction purposes only will be maintained and expanded to include imports. Additionally, the requirements for notification, prior informed consent, obtaining a permit and tracking will be maintained.)

Tetra-BDE, Penta-BDE, Hexa-BDE and Hepta-BDE: There are no exports of these substances as,

• these substances have never been produced in Canada;
• no known stockpiles of these substances exist in Canada;
• a mandatory use pattern survey for the year 2000 revealed that there were no exports of these substances from Canada;
• the commercial use of these substances has been phased out in Canada, and;
• the PBDE Regulations, published in 2008, banned the manufacture import, use, sale and offer for sale of these substances, and were designed to prevent the reintroduction of these substances into Canada.

Annex B chemicals

PFOS: There are no exports of these substances as PFOS is not manufactured in Canada and there are no stockpiles consisting of pure PFOS.

Canada does, however, have stockpiles of aqueous film forming foams (AFFFs) containing PFOS concentrations that were manufactured or imported before May 2008. Canada notified for this Article in Use (please refer to Chapter 4) and therefore export provisions under the Stockholm Convention do not apply. Nevertheless, PFOS has also been proposed for the addition to Schedule 3, the Export Control List^[14], and will be managed by the ESECLR. Therefore, should there be exports of this POP, they will only be permitted under limited conditions (i.e. for destruction or environmentally sound disposal) that are in line with the terms agreed upon in the Stockholm Convention.

Rotterdam Convention
In addition, many Annex A and Annex B chemicals are listed under the Rotterdam Convention on Prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade (the Rotterdam Convention). Canada uses the ESECLR under CEPA 1999 to meet its obligations under the Rotterdam Convention. Canadian exporters of substances on the Export Control List are subject to the provisions of these Regulations and are required:

• to apply for a permit to export the substance to countries that are Parties to the Rotterdam Convention. For substances on Annex III of the Rotterdam Convention, a permit is issued if the importing country consents to imports of the substance. The export permit specifies any conditions imposed by the importing Party. For substances not on Annex III, a permit is issued and the importing country is notified of the export under Article 12 of the Rotterdam Convention;
• to carry liability insurance for each export subject to the provisions of the regulations implementing the Rotterdam Convention;
• to provide health and environmental information with each export subject to the Rotterdam Convention provisions of the regulations, such as material safety data sheets and labels; and
• to be responsible for the removal of the substance from the country of destination and any relevant costs in the event that the exporter exports the substance in contravention of the conditions set out in the permit, or if the export takes place after the permit has expired.

Preventing the Production and Use of Chemicals Exhibiting POPs Characteristics

Article 3.3 Each Party that has one or more regulatory and assessment schemes for new pesticides or new industrial chemicals shall take measures to regulate with the aim of preventing the production and use of new pesticides or new industrial chemicals which, taking into consideration the criteria in paragraph 1 of Annex D^[15], exhibit the characteristics of persistent organic pollutants.

Article 3.4 Each Party that has one or more regulatory and assessment schemes for pesticides or industrial chemicals shall, where appropriate, take into consideration within these schemes the criteria in paragraph 1 of Annex D^[4] when conducting assessments of pesticides or industrial chemicals currently in use.

Canada has assessment and regulatory schemes for both new and existing substances, including pesticides and industrial chemicals. Federal actions on chemical control are coordinated under the Chemicals Management Plan (CMP) and rely primarily on the PCPA, CEPA 1999, and related regulations.

“New” substances are those not on the Domestic Substances List (DSL), Canada's inventory of chemicals in use. Since 1994 Canada has been assessing all new substances that have been notified for introduction into Canadian commerce at early stages of their manufacture or import.

“Existing” substances are those listed on the DSL. Canada has been assessing existing substance on priority basis since the inception of CEPA 1999.

A. New Substances

PCPA: The Pest Control Products Act (PCPA) and regulations are the comprehensive framework legislating pesticides imported into, sold, or used in Canada. The PCPAis administered by Health Canada's Pest Management Regulatory Agency (PMRA), with the specific mandate to protect human health, safety and the environment by minimizing risks associated with pesticides. The PMRA's key responsibilities are pre-market review of products proposed for registration and the re-evaluating of registered products.

Pre-market Review and Pesticide Registration: Before making a registration decision regarding a new pest control product, the PMRA conducts a comprehensive assessment of the risk and value specific to the proposed use. Risk assessment considers the inherent toxicity, persistence and bioaccumulative nature of the pest control product. It addresses human health and environmental concerns and, for each of these, considers the possible hazards associated with the product as well as the degree to which humans and the non-target environment may be exposed. Only when there is sufficient evidence to show that a product does not pose unacceptable health or environmental risks and has a value will it be registered.

CEPA 1999: Under the New Substances Notification regime^[16] established under CEPA 1999, Canada's Minister of Environment and Minister of Health are obligated to assess all new substances to determine if they meet one or more criteria of section 64 of CEPA 1999. The New Substances Notification Regulations (Chemicals and Polymers) and the New Substances Notification Regulations (Organisms) specify the information to be submitted if a new substance is intended for import or manufacture. When Environment Canada receives a new substance notification from a company or individual proposing to import or manufacture a new substance, a joint assessment process is carried out by Environment Canada and Health Canada to determine the potential adverse effects of the substance on the environment and/or human health. This assessment takes into consideration the criteria of paragraph 1 of Annex D and the Persistence and Bioaccumulation Regulations (Canada 2000). When this process identifies a new substance that may pose a risk to human health or the environment, CEPA 1999 provides the legal mechanism to intervene prior to or during the earliest stages of its introduction into Canada.

New substances suspected of being harmful to human health and/or the environment may be addressed by one of the measures laid out in CEPA 1999, including:

• conditions on import and manufacture;
• prohibition of import and manufacture;
• request for additional information, resulting in a prohibition pending submission and assessment of this information; or
• re-notification and assessment prior to a significant new activity involving the substance.

B. Existing Substances

CEPA 1999: With respect to existing substances, CEPA 1999 required the Ministers of the Environment and of Health to (i) categorize by September 2006 all 23,000 substances on the Domestic Substances List, and (ii) conduct screening assessments of substances that met the categorization criteria set out in the Act to determine whether or not such substances are harmful to human health and/or the environment. The first phase of the CMP included the screening assessment of approximately 200 chemical substances that were determined to be high priority substances based on their categorization criteria. The second phase of the CMP includes continued assessment of those substances that met the Government of Canada categorization criteria. Other actions, in addition to the categorization process, may result in the assessment of chemicals of concern. All screening assessments take into consideration the criteria of paragraph 1 of Annex D, and the Persistence and Bioaccumulation Regulations (Canada 2000).

The purpose of a screening assessment is to determine the potential health and ecological risks associated with a chemical, and to determine whether a chemical meets one or more criteria of section 64 of CEPA 1999. Under section 64 of CEPA 1999, a substance is "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 it depends; or
• (c) constitute or may constitute a danger in Canada to human life or health

The screening assessment results in one of the following:

• no further action is taken at this time in respect of the substance, if the screening assessment indicates that the substance does not pose a risk to the environment or human health;
• the substance is added to the CEPA 1999 Priority Substances List^[17] in order to assess more comprehensively the risks associated with the release of the substance, if the substance is not already on the List; or
• it is recommended that the substance be added to the List of Toxic Substances, Schedule 1, of CEPA 1999^[18]. Substances on Schedule 1 can be considered for regulatory actions or other controls.

PCPA: In addition to assessing new pesticides for registration, the PMRA is also responsible for the re-evaluation of pesticide products. The Pest Control Products Act requires that all registered pesticide products be re-evaluated on a 15-year cycle. However, re-evaluation of a pesticide product can be triggered before a pesticide is due for its 15 year re-evaluation. The re-evaluation provision of the Act provides the authority to remove a pesticide from the market if it poses unacceptable risk to human health or the environment.