Guidance for responding to the Notice with respect to certain priority petroleum substances on the Domestic Substances List

Published in the Canada Gazette, Part I, on July 25, 2015

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This document provides guidance for responding to the Notice with respect to certain priority petroleum substances on the Domestic Substances List (the Notice) published in the Canada Gazette, Part I, on July 25, 2015, pursuant to paragraph 71(1)(b) of the Canadian Environmental Protection Act, 1999 (the Act). In case of discrepancy between this document and the Notice or the Act, the official versions of the Notice and the Act take precedence.

Table of Contents

1. Overview
2. Who does the Notice apply to?
3. Information required
4. Sections of the Notice to be completed
5. Request for confidentiality
6. Blind submission
7. Declaration of Stakeholder Interest
8. Declaration of Non-Engagement
9. Submission of voluntary information
10. Responding to the Notice
11. What if I need more time to comply with the Notice?
12. Contact information

1. Overview

1.1- Purpose of the Notice

Petroleum substances are a key component of the Chemicals Management Plan. Originally addressed under a sectoral approach, approximately 160 high priority petroleum substances have undergone initial data collection, and are currently being assessed and will undergo risk management, if required.

There are approximately 210 remaining petroleum substances that have been identified as priorities to be assessed by 2020.

The purpose of the Notice is to gather qualitative information about the import and blending/formulation activities of a subset of the 210 remaining priority petroleum substances. The Notice will support a triage activity as well as help to better identify stakeholders for further engagement.

An electronic copy of the Noticeis available on the Chemical Substances Web site.

1.2- Reportable substances

Schedule 1 of the Notice lists the reportable substances by their Chemical Abstracts Service Registry Number (CAS RN). There are a total of 70 petroleum substances included in the Notice, and they are listed below:

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2. Who does the Notice apply to?

2.1- Reporting criteria

To determine whether a company is required to respond, the following factors must be considered:

• Type of activity
• Calendar year
• Concentration
• Quantity
  • This is the quantity of the substance itself, and not the quantity of the product or mixture containing the substance.

The Notice applies to any person who, during the 2014 calendar year, satisfied any of the following criteria:

• Imported a total quantity greater than 1 000 kg of a reportable substance, at a concentration equal to or above 1% by weight (w/w%), whether alone, in a mixture or in a product.
• Used a total quantity greater than 1 000 kg of a reportable substance, at a concentration equal to or above 1% by weight (w/w%) whether the substance is used alone or in a mixture, to formulate or blend into a mixture or product.

Please note that the Notice does not apply to domestic manufacturers of a reportable substance.

2.2- Exclusions

The following are excluded from the Notice:

• Import of CAS RN 64742-14-9 or CAS RN 68131-77-1 in a product intended to be used by consumers;
• A substance listed in the Notice, whether alone, in a mixture or in a product that:
  • is in transit through Canada;
  • is, or is contained in, a hazardous waste or hazardous recyclable material within the meaning of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and that was imported in 2014 pursuant to a permit issued under those Regulations;  
  • is, or is contained in, a pest control product within the meaning of subsection 2(1) of the Pest Control Products Act where that pest control product is registered under the Pest Control Products Act;
  • is, or is contained in, a fertilizer or supplement within the meaning of section 2 of the Fertilizers Act where that fertilizer or supplement is registered under the Fertilizers Act; 
  • is, or is contained in, a feed within the meaning of section 2 of the Feeds Act where that feed is registered under the Feeds Act;
  • is mixed with, or attached to, a seed within the meaning of section 2 of the Seeds Act where that seed is registered under the Seeds Act;
  • is imported by a petroleum refining facility, upgrading facility or natural gas processing facility for uses other than formulation or blending into a mixture or product;
  • is a fuel or fuel additive or contained in a fuel or fuel additive;
  • is imported within an internal combustion engine;
  • is imported within a closed hydraulic system or closed functional fluid system; or
  • is imported in an engine oil, brake fluid, steering fluid or other functional fluid.

Note that for the purpose of the Notice, fuel refers to any form of matter that is combusted or oxidized for the generation of energy.

In addition, any person who submitted information for a reportable substance as part of the voluntary information gathering phase conducted in 2015 is not required to respond to the Notice for that substance. However, if a person was engaged with other substances listed in the Notice for which voluntary information was not provided, they are still required to respond for those substances.

2.3- Flowchart

The following flowchart can be used to determine whether a company is required to respond to the Notice:

Figure 1:  Reporting Diagram for Petroleum substances

2.4- Examples of how to determine whether the reporting criteria are met

The following are examples of how to determine whether the reporting criteria of the Notice are met:

1. Company meets the reporting criteria:
   • In 2014, if your company imported 4 000 kg of Product X that contains 50% of a reportable substance, then a total quantity of 2 000 kg of the substance was imported. The reporting criteria are met.
   • In 2014, if your company imported 5 000 kg of Product X that contains 10% of a reportable substance and 3 000 kg of Product Y that contains 50% of the same reportable substance, then a total quantity of 2 000 kg of the substance was imported. The reporting criteria are met.
2. Company does not meet the reporting criteria:
   • If your company imported greater than 1 000 kg of a reportable substance in product at a concentration greater than or equal to 1% during the 2013 calendar year only, then the reporting year is not met.
   • In 2014, if your company manufactured greater than 1 000 kg of a reportable substance, then the reportable activity type is not met.
   • In 2014, if your company used greater than 1 000 kg of a reportable substance at a concentration less than 1% to formulate a mixture of product then the concentration threshold of greater than or equal to 1% is not met.
   • In 2014, if your company used a total quantity of 900 kg of a reportable substance alone to formulate a mixture or product, then the quantity threshold of greater than 1 000 kg is not met.

2.5- Do I import?

Import relates specifically to the movement into Canada from another country of any substance identified in the Notice, whether alone, in a mixture, or in a product.

For the purposes of the Notice, possible situations where you are considered to import include, but are not limited to, the following examples:

• You purchased a reportable substance from a foreign supplier, and the substance was shipped directly from the foreign supplier to your location in Canada.
• You ordered a mixture containing a reportable substance from a foreign source, and the mixture containing the substance was shipped directly from the foreign source to a distribution warehouse in Canada, on your request.
• You received a product containing a reportable substance as an internal company transfer from a location outside of Canada.

Your activities do not meet the definition of import if you purchased or received a reportable substance whether alone, in a mixture, or in a product that was already located in Canada.

Possible situations where you are not considered to import a substance include, but are not limited to, the following examples:

• You purchased a substance from a Canadian company.
• You ordered a product from a warehouse located in Canada.
• You transferred a product containing a reportable substance across provincial borders to be stored in a different warehouse.

2.6- Do I use?

Use relates specifically to using a reportable substance, whether alone or in a mixture, to formulate or blend into a mixture or product.

Your activities do not meet the definition of use if your activity with a reportable substance, or with a mixture containing a reportable substance, is an end-use.

Possible situations where you are considered to use include, but are not limited to, the following examples:

• You blend a reportable substance with other components to make Mixture Z.
• You react a reportable substance with Substance C to formulate Product Y.
• You blend a mixture containing a reportable substance as an impurity, present at 5% concentration, with other components to make another mixture.
• You use a mixture containing a reportable substance in the process of formulating a product.

Possible situations where you are not considered to use include, but are not limited to, the following examples:

• You use Product X, which contains a reportable substance, to service machinery and equipment, including machinery and equipment used in the formulation of your products. You are not required to report since you are considered an end-user of Product X.
• You load a reportable substance onto a carrier and ship the substance to three other companies.
• You purchase Mixture Y which contains a reportable substance from your supplier in Canada, and distribute the mixture to your customers.

2.7- What is a mixture?

A mixture is a combination of substances that does not produce a substance that is different from the substances that were combined (i.e., does not result in the formation of a new substance with its own CAS RN). For the purposes of the Notice, mixtures include, but are not limited to, the following examples:

• prepared formulations
• reaction mixtures that are characterized in terms of their constituents

For the purposes of the Notice, mixtures that may contain reportable substances may include, but are not limited to, the following examples:

• fragrance mixtures
• printing inks
• gelling agent mixtures and solvent mixtures

2.8- What is a product?

A product is anything that does not meet the definition of a mixture or manufactured item. A substance alone is not considered to be a product.

• Note that a manufactured item is an item that is formed into a specific physical shape or design during manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design. Manufactured items include sporting goods, furniture, appliances, electronics, batteries, medical devices, etc. For the purpose of the Notice, manufactured items are not reportable.

For the purpose of the Notice, products that may contain reportable substances may include, but are not limited to, the following examples:

• petroleum blends that do not result in the formation of a new substance
• adhesives and sealants
• plastics and rubber additives
• plasticizers
• stabilizers
• dispersants
• binders
• emulsifying agents
• suspending agents
• agriculture adjuvants
• cosmetics and personal care products such as creams, lotions, perfumes, nail polish, and shampoo
• cleaning liquids, gels or sprays
• detergents and surfactants
• paints and coatings
• pharmaceuticals

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3. Information required

The type of information requested in the Notice includes:

• CAS RN and name of the substance
• North American Industry Classification System (NAICS) codes
• Substance function codes and consumer and commercial codes
• Customer information

3.1- North American Industry Classification System codes

The North American Industry Classification System (NAICS) is an industrial classification system established to identify production processes by grouping similar activities. The codes were developed by Statistics Canada, the U.S. Office of Management and Budget, and Mexico's Instituto Nacional de Estadistica Geografia e Informatica, to enable the national agencies to collect comparable statistical data.

You are required to report each applicable six-digit NAICS code with respect to each substance, or the mixture, or product containing the substance. You should report the code(s) that best describes your involvement with the substance, or the mixture or product containing the substance. The code(s) will provide general information on the number and types of sectors involved with the substances listed in the Notice.

To determine which NAICS code applies to your activity with the substance on which you are reporting, the NAICS Canada 2012 list of codes is available at the Statistics Canada Web site.

3.2- Substance function codes and consumer and commercial codes

Substance function codes and consumer and commercial codes are an accepted list of codes used to describe the function or use of a substance in a consistent manner. Substance function codes and consumer and commercial codes were developed jointly among the United States. Environmental Protection Agency, Health Canada and Environment Canada in order to facilitate the exchange of information between the United States and Canada and to encourage consistency in reporting on chemical substances by industry.

Substance Function Code refers to the function of the substance with regards to the intended physical or chemical characteristic for which a chemical substance is consumed as a reactant; incorporated into a formulation, mixture, product, or manufactured item; or used.

• All substance function codes begin with the letter U followed by 3 numbers.

Consumer and Commercial Code refers to the application of a substance alone, or in a mixture, product, or manufactured item containing the substance with regards to its purpose in a consumer (end application) or commercial setting (i.e., the anticipated application of the substance, item or product).

• All consumer and commercial codes begin with the letter C, followed by three numbers.
• Refer first to the group descriptions to determine which subset of codes would be most applicable to your substance.
• Although the codes are entitled “Consumer and Commercial Codes”, these codes do apply to substances, mixtures, products, and manufactured items that may only be used in an industrial setting or for an industrial application.  

It is important to note that number 999 is reserved for the “Other” code in both substance function codes (U999) and consumer and commercial codes (C999). These codes should only be used when there is no existing code match for the application or function of the substance. When selecting this code, a written description of the substance function or the consumer and commercial application of a substance alone, or of the mixture, product, or manufactured item containing a substance must be provided, and the description should be as concise as possible.

• If the substance is an impurity, select code U999- Other (impurity), which will be available as an option to select in the onlinereporting tool.

If a substance has more than one function or application, you should report all the applicable codes. For each code selected, additional information to describe the function or your application with the substance in more detail, can be provided in the “Notes” field of the online reporting form.

3.2.1- Code numbering system for substance function codes and consumer and commercial codes

All code numbers consist of one letter followed by a three-digit number. A basic structure of [Type][Group #][Subgroup #] is applied to all codes where:

[Type] is expressed by either the letter “U” for substance function or the letter “C” for consumer and commercial use.

[Group #] is a one-digit number to indicate a grouping of chemical substances or products having similar uses. Substance function codes are listed in alphabetical order and are not separated into different groups; therefore, all substance function codes have a group number 0. Consumer and commercial codes use six different group numbers (groups 1 – 5 and group 9).

[Subgroup #] is a two-digit number to indicate a specific use or function (within each group for consumer and commercial codes).

Please refer to the code names and descriptions below to determine if any of the pre-set codes applies to your substance. Wording in the description may indicate the use or function of the substance.

3.2.2- Substance Function Codes and Corresponding Descriptions

3.2.3- Consumer and Commercial Codes and Corresponding Descriptions

3.3- Information to which you may reasonably be expected to have access

You are required to provide information that your company possesses or to which you may reasonably be expected to have access. For example, when importing a substance, mixture or product, you may reasonably be expected to have access to import records and the relevant Safety Data Sheet (SDS). A SDS is an important source of information on the composition of a purchased product. Note that the goal of the SDS is to protect the health of the workers, not the environment. Therefore, a SDS may not list all product ingredients on which the Minister of the Environment is requiring information under the Notice. You may wish to contact your supplier for more detailed information on product composition.

Also, a company may have access to information from its parent company regarding substances, mixtures or products.

You are not required to conduct tests to comply with the Notice.

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4. Sections of the Notice to be completed

If a person meets the reporting criteria, they must respond to the Notice by completing the sections of Schedule 3 applicable to their activity:

If you are a company who owns more than one facility, then you must respond to the Notice on a company-wide basis, and your response for each applicable question in the Notice should be an amalgamated response to include information from all facilities owned by the company.

4.1- Section 3 of Schedule 3

For each substance listed in the Notice that a person imported or used during the 2014 calendar year, for which the reporting criteria have been met, the person shall provide the following information:

• in (a) the CAS RN and name of the substance;
• in (b) each applicable six-digit North American Industry Classification System (NAICS) code(s) with respect to the substance, or the mixture or product containing the substance reported in (a);
• in (c) each substance function code that applies to the function of the substance;
  • Choose the substance function code(s) that are consistent with the most complete and accurate information available to you.
  • If the substance has a function that is not described in any of the substance function codes provided, then code U999 should be used. A written description of the function of the substance must be provided when using this code and the description should be as concise as possible.
  • Not all persons may know the intended function of the substance. Therefore, a substance function code may be difficult to identify. However, when completing this section of the Notice, respond using the most complete and accurate information available to you.
• in (d) each consumer and commercial code that applies to the known or anticipated final substance, mixture, or product containing the substance.
  • Choose the consumer and commercial code(s) that are consistent with the most complete and accurate information available to you.
  • If none of the consumer and commercial codes provided apply, then code C999 should be used. A written description of the application of the substance, or of the mixture or product containing the substance, must be provided when using this code and the description should be as concise as possible.

Example 2:

In 2014, you imported a total of 20 670 kg of a reportable substance (CAS RN 69013-21-4), at a concentration of 1.3 w/w% within a product. Of the total quantity of the substance imported (CAS RN 69013-21-4), 6 500 kg were used at your facility in Ontario (Canada). The remaining quantity was kept as inventory. You use this substance as a viscosity adjustor (substance function code U032) to blend with other mixtures in order to make a personal care product (consumer and commercial code C108).  The NAICS code related to your activity with the substance (i.e. blending to make a personal care product) will be toilet preparation manufacturing (NAICS code 325620).

4.2- Section 4 of Schedule 3

For each substance listed in Schedule 1 that a person imported or used during the 2014 calendar year, for which the criteria set out in Schedule 2 have been met, the person shall provide the following information:

• in (a), the CAS RN of the substance;
• in (b), the name, city and province of a maximum of 20 persons in Canada, other than petroleum refining facilities, upgrading facilities or natural gas processing facilities, to whom the largest quantity of the substance above 100 kg was sold.

Example 3:

In 2014, you imported 5 000 kg of a reportable substance (CAS RN 68425-31-0) and sold it to three companies in Canada (3 150 kg to Company A Inc. in Big Town ON, 1 775 kg to Company B Inc. in Hometown BC, and 75 kg to Company C Inc. in Snowyville, PEI). The three companies do not operate petroleum refining, upgrading or natural gas processing facilities.

Note that Company C Inc. is not included, since you sold the company less than 100 kg of the substance.

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5. Request for confidentiality

Pursuant to section 313 of the Act, any person who provides information in response to the Notice may submit, with the information, a written request that it be treated as confidential. A request for confidentiality may be submitted for all or part of the information provided.

A request should only be made for information that is truly confidential.

When submitting a request for confidentiality, the following criteria should be considered:

• the information is confidential to your company and has consistently been treated as such by your company;
• your company has taken, and intends to continue to take, measures that are reasonable in the circumstances to maintain the confidentiality of the information;
• the information is not, and has not been, reasonably obtainable by third persons by use of legitimate means, except with the consent of your company;
• the information is not available to the public;
• disclosure of the information may reasonably be expected to cause substantial harm to the competitive position of your company; or
• disclosure of the information may reasonably be expected to result in a material financial loss to your company or a material financial gain to your company’s competitors.

Upon receipt of a request for confidentiality under section 313 of the Act, in relation to information submitted pursuant to the Notice, the Minister of the Environment shall not disclose that information, except in accordance with the law.

Any person who provides information in response to the Notice, and requests that the information be treated as confidential is encouraged to include a rationale indicating the reason for requesting confidentiality. The rationale is requested for each substance on which the person has reported in their response to the Notice. Through the online reporting tool, the rationale is provided by selecting at least one of the following criteria that applies to the information identified as confidential:

1. it is a trade secret of the submitter;
2. it is information of a financial, commercial, scientific or technical nature that is treated consistently in a confidential manner by the submitter;
3. its disclosure could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of the submitter; or
4. its disclosure could reasonably be expected to interfere with contractual or other negotiations of the submitter.

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6. Blind submission

A “Blind Submission” is a two-part submission where customers and their suppliers collaborate to meet the obligation to respond to the Notice.

The customer responds to the Notice, completing as much information as they can.  If customers do not possess some information, they may ask their suppliers if the mixtures or products they purchase contain substances listed in Schedule 1 to the Notice.

Suppliers looking to protect their formulations as confidential business information may be reluctant to provide the information to their customers. In this case, the customer submits all information in their possession and the supplier submits the remainder of the information directly to the Substances Management Coordinator, to complete the submission. A cover letter or note should be provided with each submission indicating that the supplier’s submission completes the customer’s submission.

If a supplier knows/suspects that a customer should report, based on quantities purchased, the supplier may choose to inform the customer of this.

Example 4:

During 2014, Company A imported Product 123 into Canada from Company B. Company A follows up with Company B to obtain information on the composition of Product 123 to determine whether any substance listed in Schedule 1 is present in Product 123.  Company B confirms that Product 123 contains a substance listed in Schedule 1 to the Notice and that based on the total quantity of Product 123 sold to Company A in 2014, Company A would meet the reporting criteria outlined in Schedule 2 to the Notice for that reportable substance.  However, Company B is reluctant to share their product composition information with Company A which would identify a substance listed in Schedule 1 is contained in Product 123, since their formulation is confidential.

Company A can submit a "Blind Submission" jointly with Company B, in which:

• Based on information in their possession, Company A responds to the Notice providing as much information as they can (e.g., information on the known or anticipated final mixture, etc.).  Along with their submission, Company A should provide a cover letter to clearly explain the situation and identify Company B as their direct foreign supplier. 
• Company B provides the confidential information required to complete Company A's submission directly to the Substances Management Coordinator (e.g., the CAS RN, substance name and the substance function).  Along with their submission, Company B should provide a cover letter to clearly indicate that their information is confidential and that it completes Company A's submission.

The Substances Management Coordinator makes the necessary connection between the two submissions in order to complete the submission of Company A, while keeping all information confidential.

Please note that blind submissions cannot be submitted online via Environment Canada’s Single Window. For further information on how to submit a blind submission, contact the Substances Management Information Line (see section 12 of this document).

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7. Declaration of Stakeholder Interest

Persons not subject to the Notice, but who have a current or future interest in a substance listed in Schedule 1 of the Notice or other substances of interest, are encouraged to identify themselves as a “stakeholder” for the substance by completing the voluntary Declaration of Stakeholder Interest using the online reporting system via Environment Canada’s Single Window. The online reporting system is available from the Chemical Substances Web site.

Interested stakeholders may be contacted for further information regarding their interest in these substances. When completing the declaration, you should:

• identify the substance(s) of interest to you, and
• specify your activity or potential activity with the substance(s) (e.g., import, manufacture, or use)

8. Declaration of Non-Engagement

Persons who do not meet the requirements to respond to the Notice and have no commercial interest in the substancescovered by the Notice may submit a Declaration of Non-Engagement for the Notice using the online reporting system via Environment Canada’s Single Window.  The online reporting system is available from the Chemical Substances Web site.

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9. Submission of voluntary information

Interested stakeholders are encouraged to submit additional information that is deemed beneficial on any of the reportable substances voluntarily, through a Declaration of Stakeholder Interest using the online reporting system via Environment Canada’s Single Window.  The online reporting system is available from the Chemical Substances Web site.

For example, if you did not have activity with a substance in 2014, but had activity in alternate calendar years, you are encouraged to provide information deemed beneficial for the alternate calendar years voluntarily by completing a Declaration of Stakeholder Interest.

When providing voluntary information, please clearly indicate that the information is voluntary and provide the calendar year for which it applies.

This information will help the Government of Canada improve decision making for these substances and ensure all activities are considered before moving forward with further actions regarding these substances.

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10. Responding to the Notice

Responses to the Notice must be provided no later than October 20, 2015, 5 p.m. Eastern Daylight Time, using the online reporting system available through Environment Canada’s Single Window available from the Chemical Substances Web site.

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11. What if I need more time to comply with the Notice?

If you require more time to comply with the Notice, you may submit a request in writing for an extension of time. The request should include the CAS RN of the substance(s) on which information will be reported and the reason for the request.

It is important to note that you must request an extension of time before the October 20, 2015, 5 p.m. Eastern Daylight Time deadline. No extensions will be granted after the deadline has expired. It is recommended that any request for an extension be submitted at least five business days before October 20, 2015, 5 p.m. Eastern Daylight Time, so that a request can be processed by the Minister of the Environment before expiry of the deadline.

Requests for an extension of time should be sent to the Minister of the Environment, to the attention of:

Substances Management Coordinator
Chemicals Management Plan
Gatineau QC, K1A 0H3
E-mail:  Substances@ec.gc.ca

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12. Contact information

Inquiries concerning the Notice may be directed to the following numbers or email address:

• Telephone: 1-800-567-1999 (Toll-free in Canada) or 819-938-3232 (Outside of Canada)
• E-mail:  Substances@ec.gc.ca (Indicate in the subject line "Petroleum Substances Inquiry")