Vol. 144, No. 7 — March 31, 2010

Registration

SOR/2010-57 March 11, 2010

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Regulations Amending the PCB Regulations

P.C. 2010-260 March 11, 2010

Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on September 26, 2009, a copy of the proposed Regulations Amending the PCB Regulations, substantially in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Regulations or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

Whereas, pursuant to subsection 93(3) of that Act, the National Advisory Committee has been given an opportunity to provide its advice under section 6 (see footnote c) of that Act;

And whereas, in the opinion of the Governor in Council, pursuant to subsection 93(4) of that Act, the proposed Regulations do not regulate an aspect of a substance that is regulated by or under any other Act of Parliament in a manner that provides, in the opinion of the Governor in Council, sufficient protection to the environment and human health;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 93(1) and section 97 of the Canadian Environmental Protection Act, 1999 (see footnote d), hereby makes the annexed Regulations Amending the PCB Regulations.

REGULATIONS AMENDING THE PCB REGULATIONS

AMENDMENTS

1. Subparagraph 1(3)(b)(ii) of the French version of the PCB Regulations (see footnote 1) is amended by replacing “portés” with “portée”.

2. Subsections 11(1) and (2) of the French version of the Regulations are amended by replacing “produit” with “produits”.

3. Section 12 of the French version of the Regulations is replaced with the following:

Destruction

12. Il est permis de transformer des BPC et des produits qui en contiennent pour les détruire dans une installation agréée à cette fin ou pour les récupérer afin de les détruire dans une telle installation.

4. Subsection 13(2) of the Regulations is amended by replacing “the day on which these Regulations come into force” with “September 5, 2008”.

5. Subparagraph 14(1)(d)(i) of the Regulations is replaced with the following:

(i) electrical capacitors, light ballasts, electrical transformers and their auxiliary electrical equipment, including pole-top electrical transformers and their pole-top auxiliary electrical equipment,

6. (1) Subsection 17(4) of the French version of the Regulations is replaced with the following:

Avis de changement apporté aux renseignements

(4) Le demandeur est tenu d’aviser le ministre par écrit de tout changement apporté aux renseignements fournis en application du paragraphe (3) dans les trente jours suivant la date du changement.

(2) Paragraph 17(7)(b) of the French version of the Regulations is replaced with the following:

b) il lui a donné la possibilité de présenter des observations par écrit au sujet de celle-ci.

7. (1) The portion of subsection 19(1) of the Regulations before paragraph (a) is replaced with the following:

Requirement to store

19. (1) A person who owns, controls or possesses PCBs or products containing PCBs shall, within 30 days after the day on which those PCBs or products cease to be processed daily or used or after September 5, 2008, whichever is later, either

(2) Subsection 19(2) of the Regulations is amended by replacing “one year after the day on which these Regulations come into force” with “one year after September 5, 2008”.

8. Subsection 20(1) of the Regulations is amended by replacing “one year after the day on which these Regulations come into force” with “September 5, 2009”.

9. Subsection 22(2) of the Regulations is amended by replacing “the day on which these Regulations come into force” with “September 5, 2008”.

10. Section 23 of the Regulations is replaced with the following:

PCBs or products containing PCBs stored on September 5, 2008

23. A person who owns, controls or possesses PCBs or products containing PCBs, other than liquids for which an extension has been granted under section 17, that are stored on September 5, 2008 may store them

(a) until December 31, 2009 if they are sent by that date for destruction to an authorized facility that is authorized for that purpose; or

(b) until December 31, 2011 if the person destroys them by that date, at the location where they are stored, in an authorized facility that is authorized for that purpose.

11. (1) Subparagraph 28(1)(a)(iii) of the French version of the Regulations is replaced with the following:

(iii) en rend une copie à jour facilement accessible à toute personne qui participe à sa mise en œuvre et au service d’incendie local ou, à défaut, au fonctionnaire local nommé par le commissaire provincial aux incendies ou à toute autre autorité locale chargée de la protection contre les incendies;

(2) Paragraph 28(1)(d) of the French version of the Regulations is replaced with the following:

d) conserve au dépôt une copie des documents et registres visés aux articles 43 et 44 respectivement et en rend une facilement accessible au service d’incendie local ou, à défaut, au fonctionnaire local nommé par le commissaire provincial aux incendies ou à toute autre autorité locale chargée de la protection contre les incendies;

12. (1) Paragraph 29(3)(b) of the Regulations is replaced with the following:

(b) equipment that is too small, including light ballasts, to bear the label referred to in subsection (4).

(2) Section 29 of the Regulations is amended by adding the following after subsection (3):

Containers for small equipment

(3.1) The owner of the equipment referred to in paragraph (3)(b) that is stored shall affix the label referred to in subsection (4) in a readily visible location on the container in which the equipment is stored.

13. (1) Paragraph 31(1)(b) of the Regulations is replaced with the following:

(b) states “Date of Commencement of Storage / Date de début de stockage” and the date on which the storage begins.

(2) Subsection 31(4) of the Regulations is replaced with the following:

Non-application

(4) Subsections (1) and (2) do not apply in respect of a product or container stored on September 5, 2008, if the product or the container

(a) bore a label on September 5, 2008 that indicated the presence of PCBs and that stated “Date of Commencement of Storage” and the date on which the storage began; and

(b) bears a label that states “Date of Commencement of Storage / Date de début de stockage” and the date on which the storage began.

14. (1) The portion of paragraph 33(1)(c) of the Regulations before subparagraph (i) is replaced with the following:

(c) the quantity of liquids containing PCBs in the equipment and of liquids, expressed in litres, the quantity of solids containing PCBs in the equipment, expressed in kilograms, and the concentration of PCBs in the liquids and solids, expressed in mg/kg,

(2) Paragraph 33(2)(c) of the French version of the Regulations is amended by replacing “il” with “ils”.

(3) The portion of paragraph 33(3)(b) of the Regulations before subparagraph (i) is replaced with the following:

(b) the quantity of liquids containing PCBs in the equipment, expressed in litres, the quantity of solids containing PCBs in the equipment, expressed in kilograms, and the concentration of PCBs in the liquids and the solids, expressed in mg/kg,

15. The portion of section 37 of the Regulations before paragraph (a) is replaced with the following:

Stored PCBs or products — PCB concentration of 50 mg/kg or more

37. The person who owns and stores PCBs or products containing PCBs in a concentration of 50 mg/kg or more, other than the equipment and liquids referred to in section 33, and the owner of a facility who stores PCBs or products containing PCBs in a concentration of 50 mg/kg or more, other than the person referred to in section 38, shall each prepare a report that is current to December 31 in each calendar year in which the person stores the PCBs or products at their PCB storage site and that contains the following information:

16. Paragraph 39(2)(c) of the French version of the Regulations is replaced with the following:

c) au plus tard le 31 mars 2018, s’il porte sur l’une ou l’autre des années 2014 à 2017;

17. (1) Subsection 40(1) of the Regulations is amended by replacing “Manager of Inspection Program” with “Regional Director”.

(2) Subsection 40(1) of the French version of the Regulations is amended by replacing “95(1)(a)” with “95(1)a)” and “Direction de l’application de la loi en environnement” with “Division de l’application de la loi en environnement”.

18. Paragraph 44(1)(c) of the French version of the Regulations is replaced with the following:

c) des mesures prises pour y remédier;

19. The Regulations are amended by replacing “the day on which these Regulations come into force” with “September 5, 2008” in the following provisions:

(a) paragraphs 14(1)(a) and (b);

(b) subsections 16(1) and (2);

(c) paragraphs 18(3)(b) and (c); and

(d) paragraph 29(3)(a).

20. The French version of the Regulations is amended by replacing “autorités du territoire” with “autorités de la province ou du territoire” in the following provisions:

(a) the definition “installation agréée” in subsection 1(1);

(b) paragraph 7(b); and

(c) paragraph 8(1)(b).

COMING INTO FORCE

21. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The PCB Regulations (the Regulations) were published in the Canada Gazette, Part II, on September 17, 2008. Environment Canada, following a comment from an industry stakeholder, identified an oversight in the Regulations with respect to on-site destruction of polychlorinated biphenyls (PCBs) and products containing PCBs. The Regulations currently do not allow on-site destruction of PCBs which would provide more flexibility to regulatees. Regulatees also identified inconsistencies in the regulatory text and requested clarification in particular on missing reporting requirements for solid products containing PCBs and end of use dates for pole-top transformers and light ballast at less than 50 mg/kg concentrations. Furthermore, there is a lack of clarity and consistency between the English and French versions of the regulatory text, as noted by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR).

The Regulations Amending the PCB Regulations (the Amendments) provide additional flexibility to industry by allowing on-site destruction in accordance with provincial and territorial legislation without compromising the safety and environmental protection provided by the Regulations. The Amendments also improve the clarity and consistency of the regulatory text and do not change the deadlines for the final destruction of PCBs or introduce any other regulatory provision that would delay the elimination of use and storage of PCBs in Canada. In addition, these Amendments are in line with Canada’s international commitments for PCBs.

The Amendments come into force on the day on which they are registered.

Description and rationale

Background

The Regulations establish deadlines for ending the use and long-term storage of PCBs and products containing PCBs. They require that all PCBs and products containing PCBs that were stored on September 5, 2008, be sent for destruction by December 31, 2009. The Regulations, however, allow a maximum storage of two years at an authorized destruction facility. At the end of this two-year period, the PCBs must be destroyed.

Recently, a regulatee raised a concern stating that the current Regulations do not allow on-site destruction of PCBs using alternative destruction methods. The current requirement for the end-of-storage deadline of December 31, 2009, states that PCBs must be sent off-site for destruction. It was also pointed out that allowing on-site destruction would eliminate transportation costs, making it less expensive than destruction off-site and provide more flexibility to regulatees to comply with the Regulations.

In addition, regulatees identified some lack of clarity on the reporting requirements and asked for clarifications on some provisions, such as end of use dates for pole-top transformers and light ballast at concentrations of less than 50 mg/kg.

Furthermore, in 2008, the SJCSR and Environment Canada also identified certain provisions of the Regulations that require greater consistency between the English and French versions of the regulatory text.

Hence, to address the above concerns, the following amendments are being made.

Amendments

Storage and destruction

The Amendments add to the storage provision of the Regulations to allow on-site storage of PCBs or products containing PCBs for an additional two years, until December 31, 2011, provided PCBs are destroyed on the site by that date. This provision is similar to the one provided to off-site destruction facilities.

The Amendments also require that PCB owners opting to destroy PCBs on-site obtain the necessary authorizations from their respective provincial or territorial governments. This provision is similar to the one that governs the operations of off-site destruction facilities.

The above two provisions rectify an oversight by Environment Canada with respect to on-site destruction of PCBs and products containing PCBs, and provide flexibility to regulatees for complying with the Regulations. The revisions are also in line with the current policy intent of the Regulations which allows a maximum of two years storage time of PCBs at off-site destruction facilities that have the necessary provincial or territorial authorizations. Therefore, the Amendments provide flexibility to regulatees to use on-site destruction methods for stored PCBs, such as contaminated soils, without compromising the timeline for final destruction of PCBs, as prescribed under the Regulations. The on-site destruction, in accordance with the provincial and territorial requirements, will ensure that destruction of PCBs respects all environmental release requirements. Therefore, the Amendments are not expected to have any adverse impact on the environment or human health.

The PCBs owners that choose to destroy PCBs and products containing PCBs off-site continue to be subject to the current end-of-storage deadline. These PCBs owners will send the stored PCBs to an authorized destruction facility by December 31, 2009, where the PCBs can be stored for an additional two years prior to their final destruction.

Administrative revisions

Environment Canada and industry stakeholders identified inconsistencies and lack of clarity in the regulatory text. Therefore, to reconcile the English and French versions of the Regulations and to add clarity to the regulatory text, the Amendments also include the following revisions:

• align the French and English version of subsection 1(1), paragraphs 7(b) and 8(1)(b) by replacing “autorités du territoire” with “autorités compétentes de la province ou du territoire” in the French version of the subsection and paragraphs;
• align the French and English version of section 12 by replacing the wording “Il est permis, dans une installation agréée à cette fin, de transformer des BPC et des produits qui en contiennent pour les détruire ou pour les récupérer afin de les détruire” with “Il est permis de transformer des BPC et des produits qui en contiennent pour les détruire dans une installation agréée à cette fin ou pour les récupérer afin de les détruire dans une telle installation” in the French version of the section;
• correct an error in the listing of equipment in subparagraph 14(1)(d)(i) by replacing the wording “other than” with “including” in the English version and by replacing the wording “à l’exception” with “y compris” in the French version of the subparagraph. This correction would include light ballasts and pole-tops containing PCBs in a concentration of less than 50mg/kg. The intent had been to allow this use; however, this error was overlooked when the Regulations were finalized. The continued use of the listed equipment given this threshold had been included as part of the Regulatory impact analysis statement (RIAS) that was published with the Regulations. In addition, subsequent to the publication of the Regulations, Environment Canada informed the stakeholders, in October 2008, that the use of the listed equipment would be allowed;
• align the French and English version of subsection 19(1) by adding “daily” after the word “processed” in the English version of the subsection;
• modify the English and French version of paragraphs 33(1)(c) and 33(3)(b) to require the reporting of the quantity of solids containing PCBs and the concentration of PCBs in these solids. Although this was omitted during finalization of the Regulations, the cost associated with this requirement had been included in the cost-benefit analysis of the Regulations;
• correct an omission with respect to persons prescribed under section 37 by adding the wording “and the owner of a facility who stores PCBs or products containing PCBs in a concentration of 50 mg/kg or more, other than the owner referred to in section 38, shall each prepare” in the English version. Similarly, the French version of the text is corrected by adding the wording “et le propriétaire d’une installation, autre que celui visé à l’article 38, qui stockent à leur dépôt de BPC des BPC ou des produits qui en contiennent en cette concentration”. This correction includes reporting by PCB storage sites which were omitted during the finalization of the Regulations. However, the associated cost impacts have been included as part of the impact analysis in the RIAS that was published with the Regulations;
• correct an error in the French version of subsection 40(1) by replacing “Direction de l’application de la loi en environnement” with “Division de l’application de la loi en environnement”;
• replace the wording ”the day on which these regulations come into force” with “September 5, 2008” in paragraphs 14(1)(a) and (b), 18(3)(b) and (c) and 29(3)(a) and subsections 16(1) and (2); and
• replace the wording “one year after the day on which these regulations come into force” with “September 5, 2009” in subsection 19(2).

Revisions based on the SJCSR recommendations

The Amendments

• align the French and English version of subsections 11(1) and (2) by replacing the word “produit” with “produits” in the French version of these subsections;
• align the French and English version of subsection 17(4) by replacing the wording “changement des renseignements fournis” with “changement aux renseignements fournis” in the French version of the subsection;
• align the French and English version of subparagraph 28(1)(a)(iii) and paragraph 28(1)(d) by replacing the wording “à la disposition” with “facilement accessible” in the French version of the subparagraph and the paragraph. This change ensures consistency with the English wording “readily available”;
• revise the wording of paragraph 29(3)(b) and add subsection 29(3.1) after subsection 29(3) to clarify the exception pertaining to labelling requirements with respect to small equipment and light ballast;
• revise the text in paragraph 31(1)(b) and subsection 31(4) in the English and French versions to clarify the information required on the labels;
• correct an omission in the French version of subsection 39(2) by adding the word “sur” before the wording “l’une ou l’autre des années 2014 à 2017”; and
• align the French and English version of paragraph 44(1)(c) by replacing the wording “des mesures à prendre” with “des mesures prises” in the French version of the paragraph.

Costs and benefits

The Amendments are not expected to result in any incremental costs to the industry, government or others since no new requirements have been added to the Regulations. However, there are some implications (as discussed below) related to the provision to allow on-site storage of PCBs for a period of two years provided the PCBs are destroyed on site by December 31, 2011.

The most commonly used destruction method for PCBs is incineration, which requires large quantities to be technically and economically feasible. Moreover, dismantling and transporting an incineration unit presents technical and operational difficulties. Alternative destruction methodologies, such as bio-remediation, do not present these challenges and can be carried out on-site. The quantities of PCBs and products containing PCBs in storage awaiting disposal, other than contaminated soils, is relatively small at individual sites and is widely distributed across the country. Therefore, Environment Canada expects that owners of small quantities of PCBs will continue to send them off-site for incineration. Owners of large inventories of contaminated soils, on the other hand, are more likely to use the alternative on-site destruction methods.

In 2009, contaminated soils were estimated by Environment Canada to account for only five tonnes or less than one per cent of the total amount of pure PCBs in-storage. Thus the quantity of pure PCBs that would be destroyed on-site is expected to be relatively small. The large inventories of these contaminated soils are stored at 10 sites in Canada.

In the RIAS published with the Regulations, it was estimated that the transportation costs for all PCBs in storage in 2009 was approximately $4.9 million. Transporting contaminated soils represented 24% of the total destruction cost. Environment Canada expects that of the 10 large sites only a few would opt to destroy PCBs on-site. While the resulting cost savings are not expected to be significant compared to the total cost for the transportation of PCBs in-storage, the Amendments will reduce the overall incremental destruction costs for PCB owners that choose to destroy on-site.

As stated earlier, PCB owners that opt for on-site destruction of PCB and products containing PCBs would need to obtain the necessary authorizations from their respective jurisdictions and meet their environmental release requirements. Therefore, no incremental environmental or human health impacts are expected.

As the Amendments add clarity to the regulatory text and provide flexibility to industry to comply with the Regulations, the overall impact of the Amendments is expected to be positive.

Consultation

The proposed Amendments were developed to provide flexibility to regulatees with respect to destroying PCBs and products containing PCBs on- or off-site and to improve and clarify the regulatory text through changes of an editorial nature. Given that the proposed changes were minor in nature with no negative impacts and were not expected to raise any concerns, no formal stakeholder consultations were held.

Comments following publication of the proposed Amendments in the Canada Gazette, Part I, on September 26, 2009

The proposed Amendments were published in the Canada Gazette, Part I, for a 60-day comment period. A total of five submissions were received from stakeholders including industry, industry association, other government departments and provincial authorities. In general, the stakeholders were supportive of the proposed Amendments.

A summary of the comments and concerns raised by stakeholders relating to the proposed Amendments and Environment Canada’s responses to them is described below.

• Two industry stakeholders suggested that Environment Canada should require additional information on treatment technologies to be used, the associated destruction costs and proof of intent such as contracts, permits, timetable for destruction, etc. prior to allowing the destruction of PCBs on-site.
  
  Environment Canada clarified that, as required under the Regulations, on-site or off-site destruction must occur at a facility that is authorized by the jurisdiction in which it is located. These authorization documents (such as permits, certificate of approvals, etc.) typically include information on treatment technology, timetables, effectiveness of the treatment and allowable practices. However, information on destruction costs is not included and Environment Canada does not consider this information essential for the implementation and enforcement of regulatory requirements. Moreover, the Regulations require that persons maintain records demonstrating that they process or use PCBs or products containing PCBs. These records are available to Environment Canada upon request. Given the existing reporting requirements under the Regulations, no changes to the conditions of storage extensions as outlined in the Amendments are being made.

• A provincial government asked for clarification on the necessary authorizations that PCB owners must obtain if they destroy PCB on-site. It was pointed out that in certain provinces PCB owners that opt to destroy PCBs on-site do not require additional approvals if the owner of the treatment technology (such as a mobile treatment technology) has already been authorized by the relevant jurisdictions.
  
  Environment Canada clarified that under section 10 of the Amendments, a person may destroy PCBs on-site in an authorized facility (such as a mobile treatment facility). Only the owner of this treatment facility is required to have the necessary authorizations from the jurisdiction where it is located.

• A federal government department has requested that the Amendments also include specific exemptions for products and equipment containing PCBs. The department is of the opinion that these products and/or equipment containing PCBs do not pose a threat to the environment. In addition, the department is also concerned that it would face a number of difficulties in meeting the end of use and end of storage deadlines specified in the Regulations.
  
  In order to make an informed decision, Environment Canada has requested additional information from the concerned department to verify the basis for the request. Subsequently, Environment Canada will evaluate the information provided and decide on the course of action to be taken.

Implementation, enforcement and service standards

The Amendments do not alter the manner in which the Regulations are implemented and enforced. Therefore, no changes to the implementation plan, enforcement strategy or service standards for the Regulations are required as a result of the Amendments. (see footnote 2)

Contacts

Robert Larocque
Manager
Waste Programs
Waste Reduction and Management Division
Environment Canada
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-2242
Fax: 819-997-3068
Email: Robert.larocque@ec.gc.ca

Markes Cormier
Senior Economist
Regulatory Analysis and Instrument Choice Division
Environment Canada
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-5236
Fax: 819-997-2769
Email: markes.cormier@ec.gc.ca

Footnote a
S.C. 2004, c. 15, s. 31

Footnote b
S.C. 1999, c. 33

Footnote c
S.C. 2002, c. 7, s. 124

Footnote d
S.C. 1999, c. 33

Footnote 1
SOR/2008-273

Footnote 2
Details on the implementation plan, enforcement strategy and service standards for the Regulations can be found at: www.ec.gc.ca/ceparegistry/documents/regs/g2-14219_rias1.pdf.

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