Summary of public comments received on the proposed order adding DBDPE and DP to schedule 1 to the Canadian Environmental Protection Act, 1999
Comments on the Proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 (CEPA) for Certain Organic Flame Retardants 1,4:7,10-dimethanodibenzo[a,e]cyclooctene, 1,2,3,4,7,8,9,10,13,13,14,14-dodecachloro-1,4,4a,5,6,6a,7,10,10a,11,12,12a-dodecahydro- dechlorane plus (DP) and benzene, 1,1’-(1,2-ethanediyl)bis [2,3,4,5,6-pentabromo- decabromodiphenyl ethane (DBDPE), assessed under the Chemicals Management Plan (CMP), were submitted by: Japan electric and electronic (E&E) industrial associations (JEITA, CIAJ, JBMIA, JEMA); Electronics Product Stewardship Canada; Canadian Network for Human Health and the Environment (CNHHE); and, Canadian Vehicle Manufacturers’ Association (CVMA).
Summarized public comments and responses are provided below, organized by topic.
Risk assessment
Comment summary 1: Hazard and risk assessment of decabromodiphenyl ethane (DBDPE) and Dechlorane Plus in polymers and manufactured items should be performed before considering future risk management measures.
Response 1: DBDPE and DP are used as additive flame retardants which may be released from products containing these substances. Releases of DBDPE to the Canadian environment from products available to consumers or commercial products in service were identified and considered in the final screening assessment as a contributor to their exposure in the Canadian environment. The hazard and risk of these exposures were considered in the final screening assessment and inform the risk management approach to mitigate effects in the Canadian environment.
Comment summary 2: DP and DBDPE were developed to be less harmful alternatives to other flame retardants.
Response 2: Both DP and DBPDE met the criteria for harmful effect on the environment set out in paragraph 64(a) of CEPA.
Comment summary 3: Agreement was expressed that DBDPE and DP should be added to Schedule 1 of CEPA.
Response 3: Noted.
Comment summary 4: Consideration should be given to treating organic flame retardants, such as organohalogens, as a class to improve assessment efficiency, regrettable substitutions and to move away from a default presumption of no risk where there is an absence of data.
Response 4: It is agreed that treatment of substances as a class or as a group can result in efficiencies in chemical risk assessment and management. Under the second phase of the Chemicals Management Plan, certain organic flame retardants (OFRs) were assessed as a group to help stakeholders inform decisions to use substitutes. FRs in the third phase of the CMP are also grouped for assessment and the expectation is that flame retardants will be assessed as groups post 2020, where appropriate.
Irrespective of substances assessed in a group or individually, when sufficient and reliable observed or experience-based data are not available, assessments are based on the best available estimation approaches and tools, including models and other tools. These are based on conservative assumptions, and the results are reviewed by technical experts.
Comment summary 5: Addition of DBDPE to Schedule 1 may be premature given the incomplete information and concerns around the validity of using decabromodiphenyl ether (decaBDE) as an analogue to support the risk assessment conclusion.
Response 5: The assessment of DBDPE draws on the available empirical, modelling, and scientific information for DBDPE and its close decaBDE analogue, is used to fill in comparable key substance-specific property gaps, to evaluate the properties of DBDPE and its potential to cause adverse effects in the environment including breaking down to lower brominated products. A weight of evidence approach is applied with consideration of multiple lines of evidence, and some uncertainty associated with data gaps in the assessment warranted consideration of precaution. Thus, weight of evidence, precaution and impact of uncertainty have all been considered together in decision-making.
ECCC considers the decaBDE to be a suitably close analogue for DBDPE given the high degree of structural and functional similarities between the 2 substances, and the availability of relevant empirical information. Structural and functional similarities between substances have typically translated to similarities in environmental fate, behaviour and other properties. The analogue approach is well established and internationally recognized, and involves comparison across chemical properties, fate, or behaviour for endpoints rather than in an absolute manner, and by taking into consideration the suitability and comparability of these attributes.
Risk management
Comment summary 6: Information on possible substitutes, their availability, reliability, and the socioeconomic impact of substitution should be taken into account in the assessment for DP and DBDPE.
Response 6: Socio-economic factors and other factors are being considered for the risk management of DP and DBDPE and include the time and cost to industry to identify and transition to alternative substances and/or processes and technologies.
Alternatives to chemical flame retardants may include the use of inherently flame‑resistant materials (such as polyester or wool) or chemical-free fire barrier systems, or a combination of these or other measures. These approaches can help reduce the use of potentially harmful chemicals and the Government is taking action to promote their adoption.
Stakeholders are encouraged to consult the Summary of flame retardant assessments and management conducted under the Canadian Environmental Protection Act, 1999 webpage when considering alternatives for DP and DBDPE.
Comment summary 7: There are existing uses for which DP and DBDPE are currently considered to be the best available substances. It can take time for effective alternatives to be developed and tested.
Response 7: Socio-economic factors and other factors are being considered for the risk management of DP and DBDPE and include the time and cost to industry to identify and transition to alternative substances and/or processes and technologies.
Flame retardant substances are generally used to meet performance-based flammability requirements. Chemical flame retardants are one means to meet flammability requirements in products; however, alternate technologies and non-chemical-based alternatives, may also be used to replace the use of flame retardant substances in various applications.
Comment summary 8: Canadian government officials are encouraged to continue contributing toward harmonization with international chemicals regulations and treaties to minimize disruption of global supply chains. There are concerns that decisions on Canadian restrictions are being made based on anticipated future international restrictions.
Response 8: Socio-economic factors and other factors being considered include a review of international risk management for these substances and safety considerations. Information provided by stakeholders helps to inform these important socioeconomic considerations in RM decision making.
Comment summary 9: There are concerns in proposing DP and DBDPE as toxic in plastics from electronics may eventually result in the classification of all end-of-life electronics as hazardous wastes. The Government of Canada should reconsider the scope of this proposed Order.
Response 9: The Government of Canada anticipates that end-of-life electronic and electrical equipment (or e-waste) containing DP and DBDPE will be handled similarly to e-waste containing other toxic substances in accordance with applicable respective municipal, provincial or territorial regulations and/or with available Extended Producer Responsibility (EPR), product stewardship programs, and internationally under the Basel Convention.
Comment summary 10: The proposed Schedule 1 listings would limit global recycling efforts. There are consequences to a substance being tagged as hazardous under the Basel Convention and domestic laws. Often, in practice this restricts the movement of items in many jurisdictions. As a result, there can be negative environmental impacts by effectively preventing the international shipment of end-of-life products.
Response 10: End-of-life electronic and electrical equipment (or e-waste) should be disposed of in accordance with applicable respective municipal, provincial or territorial regulations and/or with available Extended Producer Responsibility (EPR) and product stewardship programs.
With respect to the international movement of e-waste under the Basel Convention, the Government of Canada anticipates that e-waste containing toxic substances DP and DBDPE will be handled in a similar manner to e-waste containing other toxic substances. Any international or interprovincial movements would be in accordance with the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations (XBR).
Comment summary 11: Restrictions on DP and DBDPE would have broad and unpredictable implications for products. When considering the impact of its determinations, ECCC should bear in mind the crucial role of flame retardants in product safety and human health and avoid unintended consequences.
In addition, existing regulations that pertain to product safety should be considered when determining suitable risk management instruments
Response 11: The importance flame retardants in products, for product safety is one of the factors being considered in design of the risk management instrument for DP and DBDPE. Other socio-economic factors include the time and cost to industry to identify and transition to alternative substances and/or processes and technologies.
Comment summary 12: Restrictions on DP and DBDPE would have broad and unpredictable implications for products. When considering the impact of its determinations, ECCC should bear in mind the crucial role of flame retardants in product safety and human health and avoid unintended consequences.
In addition, existing regulations that pertain to product safety should be considered when determining suitable risk management instruments.
Response 12: The importance flame retardants in products, for product safety is one of the factors being considered in design of the risk management instrument for DP and DBDPE. Other socio-economic factors include the time and cost to industry to identify and transition to alternative substances and/or processes and technologies.
Comment summary 13: Concerns were expressed regarding how to successfully eliminate human and environmental exposure to these 2 substances. Regulations must be put into place and enforced to protect water sources and courses from contamination by these substances where they are manufactured and used, and as products containing them deteriorate and are discarded into landfills and recycling plants. Specifically, concerns regarding recycling plants that recycle vehicles and plastics were raised including whether these sites will be a source of contamination by DP and DBDPE and concerns for other contaminants that may be released from this facility into water.
Response 13: The Government of Canada is committed to protecting people living in Canada and the environment from chemical substances that could be harmful. Federal action to address flame retardants is part of the Chemicals Management Plan, a Government of Canada initiative aimed at reducing the risks posed by chemicals to people living in Canada and the environment.
With respect to DP and DBDPE, an Order to list the substances onto Schedule 1 of CEPA gives the Government of Canada full authority to make instruments under CEPA, including regulations, as instruments for the control and prevention of toxic substances. The Government of Canada published the proposed Prohibition of Certain Toxic Substances Regulations, 2022 (proposed Regulations) in the Canada Gazette, Part I on May 14, 2022 which proposed restrictions on the manufacture, use, sale and import of DP and DBDPE, and products containing these substances unless an exemption applies or a permit has been issued. The final Regulations, currently in development, will further clarify how the restrictions apply, including time-limited exemptions and permits.
Comment summary 14: It should be decided whether these (and other) flame retardants are necessary for human health and survival in the first place.
Response 14: The importance flame retardants in products, for product safety is one of the factors being considered in design of the risk management instrument for DP and DBDPE. Other socio-economic factors include the time and cost to industry to identify and transition to alternative substances and/or processes and technologies.
Comment summary 15: What provisions will be put into place to prevent DP and DBDPE from being recycled into new products?
Response 15: The Government of Canada is committed to protecting people living in Canada and the environment from chemical substances that could be harmful. Federal action to address flame retardants is part of the Chemicals Management Plan, a Government of Canada initiative aimed at reducing the risks posed by chemicals to people living in Canada and the environment.
The proposed amendments to the Prohibition of Certain Toxic Substances Regulations, 2012 prohibit the manufacture of products from recyclable materials containing DP and DBDPE, unless incidentally present, as well as their import, use and sale. Time-limited exemptions for DP and DBDPE in the automotive and EEE sectors will were proposed after taking into account socio-economic factors, such as the demonstrated absence of suitable alternatives, consideration of the international context and risks to the environment.
Comment summary 16: The Canadian Government should take the strongest measures possible to end the use of DP and DBDPE. In addition, collaboration with other jurisdictions should be considered in order to prevent continued exposure of toxic substances to people living in Canada and the environment.
Response 16: The Government of Canada is committed to protecting people living in Canada and the environment from chemical substances that could be harmful. Federal action to address flame retardants is part of the Chemicals Management Plan, a Government of Canada initiative aimed at reducing the risks posed by chemicals to people living in Canadas and the environment.
Under the Government of Canada’s Chemicals Management Plan, the goal is to reduce the risks posed by chemical substances to people living in Canada and the environment. This includes cooperation and collaboration with other jurisdictions, where needed, while ensuring risk management measures suitably address these risks within Canada.
The Government of Canada proposed measures to manage releases of DP and DBDPE from all industrial sectors and activities by amending the Prohibition of Certain Toxic Substances Regulations, 2012, to prohibit the manufacture, import, use, sale and offer for sale of DP and DBDPE, as well as products and manufactured items containing these substances. Time-limited exemptions for DP and DBDPE in the automotive and EEE sectors were proposed after taking into account socio-economic factors, such as the demonstrated absence of suitable alternatives, consideration of the international context and risks to the environment.
Regulatory process
Comment summary 17: The Proposed Schedule 1 Listings would Trigger Restrictions. Under the proposed amendments, the consequence of listing DP and DBDPE would be to prohibit all products that contain them. The 2 proposals should be read together as a single regulatory plan as there is a “bootstrap” effect.
The Schedule 1 listing proposal makes administration burden appear to be a neutral and unobjectionable action. The scope of the prohibition proposal proceeds is dictated by the scope of the listing, and should be determined with careful attention to their foreseeable consequences.
Response 17: Noted.
The proposed Orders Adding Toxic Substances to Schedule 1 to CEPA and proposed amendments to the Prohibition of Certain Toxic Substances Regulations, 2012 are distinct instruments with different objectives and scope that do not overlap. An order to add a substance to Schedule 1 of CEPA enables the making of regulations under s.93 of CEPA. The Government will take into account the comments submitted on DP and DBPDE during the regulatory process for the proposed amendments to the Prohibition of Certain Toxic Substances Regulations, 2012.