Vol. 137, No. 14 — July 2, 2003

Registration
SOR/2003-229 12 June, 2003

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

P.C. 2003-938 12 June, 2003

Whereas, pursuant to subsection 332(1) of the Canadian Environmental Protection Act, 1999 (see footnote a) , the Minister of the Environment published in the Canada Gazette, Part I, on July 27, 2002, a copy of the proposed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999, substantially in the form set out in the annexed Order, and persons were given an opportunity to file comments with respect to the proposed Order or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

And whereas, pursuant to subsection 90(1) of that Act, the Governor in Council is satisfied that the substances set out in the annexed Order are toxic substances;

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 90(1) of the Canadian Environmental Protection Act, 1999 (see footnote b) , hereby makes the annexed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999.

ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

AMENDMENT

1. Schedule 1 to the Canadian Environmental Protection Act, 1999 (see footnote 1)  is amended by adding the following after item 59:

60. Gaseous Ammonia, which has the molecular formula NH₃(g)

61. Ozone, which has the molecular formula O₃

62. Nitric oxide, which has the molecular formula NO

63. Nitrogen dioxide, which has the molecular formula NO₂

64. Sulphur dioxide, which has the molecular formula SO₂

65. Volatile organic compounds that participate in atmospheric photochemical reactions, excluding the following:

(a) methane;

(b) ethane;

(c) methylene chloride (dichloromethane);

(d) 1,1,1-trichloroethane (methyl chloroform);

(e) 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113);

(f) trichlorofluoromethane (CFC-11);

(g) dichlorodifluoromethane (CFC-12);

(h) chlorodifluoromethane (HCFC-22);

(i) trifluoromethane (HFC-23);

(j) 1,2-dichloro-1,1,2,2-tetrafluoroethane (CFC-114);

(k) chloropentafluoroethane (CFC-115);

(l) 1,1,1-trifluoro-2,2-dichloroethane (HCFC-123);

(m) 1,1,1,2-tetrafluoroethane (HFC-134a);

(n) 1,1-dichloro-1-fluoroethane (HCFC-141b);

(o) 1-chloro-1,1-difluoroethane (HCFC-142b);

(p) 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124);

(q) pentafluoroethane (HFC-125);

(r) 1,1,2,2-tetrafluoroethane (HFC-134);

(s) 1,1,1-trifluoroethane (HFC-143a);

(t) 1,1-difluoroethane (HFC-152a);

(u) parachlorobenzotrifluoride (PCBTF);

(v) cyclic, branched or linear completely methylated siloxanes;

(w) acetone;

(x) perchloroethylene (tetrachloroethylene);

(y) 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca);

(z) 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb);

(z.1) 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee);

(z.2) difluoromethane (HFC-32);

(z.3) ethylfluoride (HFC-161);

(z.4) 1,1,1,3,3,3-hexafluoropropane (HFC-236fa);

(z.5) 1,1,2,2,3-pentafluoropropane (HFC-245ca);

(z.6) 1,1,2,3,3-pentafluoropropane (HFC-245ea);

(z.7) 1,1,1,2,3-pentafluoropropane (HFC-245eb);

(z.8) 1,1,1,3,3-pentafluoropropane (HFC-245fa);

(z.9) 1,1,1,2,3,3-hexafluoropropane (HFC-236ea);

(z.10) 1,1,1,3,3-pentafluorobutane (HFC-365mfc);

(z.11) chlorofluoromethane (HCFC-31);

(z.12) 1-chloro-1-fluoroethane (HCFC-151a);

(z.13) 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a);

(z.14) 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C₄F₉OCH₃);

(z.15) 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF₃)₂CFCF₂OCH₃);

(z.16) 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C₄F₉OC₂H₅);

(z.17) 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF₃)₂CFCF₂OC₂H₅); and

(z.18) methyl acetate and perfluorocarbon compounds that fall into the following classes, namely,

(i) cyclic, branched or linear completely fluorinated alkanes,
(ii) cyclic, branched, or linear completely fluorinated ethers with no unsaturations,
(iii) cyclic, branched or linear completely fluorinated tertiary amines with no unsaturations, or
(iv) sulfur containing perfluorocarbons with no unsaturations and with sulfur bonds only to carbon and fluorine.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

The purpose of the Order is the addition of ozone and its precursors and precursors to respirable particulate matter less than or equal to 10 microns (PM₁₀) to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA 1999):

•  Gaseous Ammonia, which has the molecular formula NH₃(g)

•  Ozone, which has the molecular formula O₃

•  Nitric oxide, which has the molecular formula NO

•  Nitrogen dioxide, which has the molecular formula NO₂

•  Sulphur dioxide, which has the molecular formula SO₂

•  Volatile organic compounds (VOCs) as described in the Order

Particulate matter and ground-level ozone are the main ingredients of smog and cause serious health effects for Canadians, including thousands of premature deaths, hospital admissions and emergency room visits every year. Recent studies have confirmed these negative impacts and shown that air pollution also increases the risk of lung cancer and heart disease. Up to two-thirds of fine particulate matter (PM_2.5) and almost all of ground-level ozone are formed in the atmosphere from gaseous precursors. As a result, in order to address PM and ozone, it is necessary to address the precursors as well.

Background

Precursors to PM₁₀

On May 27, 2000, the Ministers of the Environment and of Health declared in the Canada Gazette that PM₁₀ is considered to be "toxic" under section 64 of CEPA 1999 and recommended to the Governor in Council that PM₁₀ be added to the List of Toxic Substances in Schedule 1 of CEPA 1999. The Governor in Council has since published a proposed Order adding PM₁₀ to the List of Toxic Substances in Schedule 1 of CEPA 1999. This proposed Order was published in the Canada Gazette, Part I, on June 10, 2000, for a 60-day comment period and finalised in the Canada Gazette, Part II, on May 9, 2001. The Priority Substances List (PSL) Assessment Report specifies that PM₁₀ can be released directly into the atmosphere or formed secondarily in the atmosphere from precursors as a result of physical or chemical transformations and identifies the principal precursors to PM₁₀ to be SO₂, NO_x (NO and NO₂), gaseous ammonia and VOCs.

Additional evidence supporting the toxicity of SO₂ comes from the PSL Report on releases from copper and zinc smelters and refineries. On September 28, 2002, pursuant to subsection 77(6) of CEPA 1999, the Ministers of the Environment and of Health published, in the Canada Gazette, Part I, their Final Decision on the Assessment of Releases from Primary and Secondary Copper Smelters and Copper Refineries and Releases from Primary and Secondary Zinc Smelters and Zinc Refineries. The Assessment concluded that, based on available data, emissions from copper smelters and refineries and from zinc plants of metals (largely in the form of particulates) and of sulphur dioxide (SO₂), are toxic to the environment or its biological diversity. The Assessment also concluded that emissions from copper smelters and refineries and from zinc plants of PM₁₀, of metals (largely in the form of particulates) and sulphur dioxide (SO₂), are toxic to human life or health.

As the precursors to PM₁₀ and ozone meet the CEPA 1999 criteria of a toxic substance, the Ministers of the Environment and of Health published, on July 15, 2000, their intent to recommend that the precursors to PM₁₀ (SO₂, NO_x, ammonia and VOCs) be added to the List of Toxic Substances in Schedule 1 of CEPA 1999, based on the 1999 PM Science Assessment Document (SAD) and based on the CEPA 1999 definition of a toxic substance.

In May 2001, the Meteorological Service of Canada published "Precursor Contributions to Ambient Fine Particulate Matter in Canada". This assessment was undertaken to summarise the current knowledge of the contribution of gaseous precursors to secondary particle formation in Canada, and to provide a scientific basis for the development of risk management options for ambient particulate matter.

Ozone and its Precursors

On October 14, 2000 the Departments of the Environment and of Health announced the availability of the SAD for Ground-level Ozone through a Notice in the Canada Gazette, Part I. The SAD concluded that there is a significant association between ambient ozone and adverse health effects and that significant adverse effects to human health (mortality and morbidity) and vegetation (reduced growth and crop yield) are occurring at ozone levels currently experienced across Canada. The SAD specifies that ground-level ozone is formed in the atmosphere from precursors through photochemical reactions in the presence of sunlight and warm temperatures and that the primary precursors to ground-level ozone are NO_x (NO and NO₂) and VOCs.

On June 9, 2001, the Ministers of the Environment and of Health published, for a 60-day comment period, a Notice of Intent to recommend that ozone and its precursors (NO_x (NO and NO₂) and VOCs) be added to the List of Toxic Substances in Schedule 1 of CEPA 1999, based on the results of the SAD and based on the CEPA 1999 definition of a toxic substance.

PM₁₀ Precursors and Ozone and its Precursors

On July 27, 2002, a proposed Order recommending that PM₁₀ precursors and ozone and its precursors be added to the List of Toxic Substances in Schedule 1 of CEPA 1999 was published for a 60-day comment period, based on the results of the SADs and on the CEPA 1999 definition of a toxic substance.

Without the listing of SO₂, gaseous ammonia, NO, NO₂ and VOCs as such on Schedule 1, the Government of Canada does not have the legislative prerequisite necessary to control the sources contributing to PM₁₀ and ozone, nor to impose control on SO₂ released from copper smelters/refineries and zinc plants.

The PM SAD may be obtained at: http://www.hc-sc.gc.ca/ ehp/ehd/catalogue/bch_pubs/99ehd220-1/pmsad_1.pdf.

The Ozone SAD may be obtained at: http://www.hc-sc.gc.ca/ ehp/ehd/catalogue/bch_pubs/ozone.htm.

The PSL Assessment Report on PM₁₀ may be obtained at: http://www.ec.gc.ca/substances/ese/eng/psap/final/PM-10.cfm.

The PSL Assessment Report on Cu and Zn may be obtained at: http://www.ec.gc.ca/substances/ese/eng/psap/public/CuZn.cfm.

The MSC Precursor Report may be obtained at: http://www.msc-smc.ec.gc.ca/saib/summary-pm2.5-Eng.pdf.

These documents can also be obtained from the Inquiry Centre, Environment Canada, Hull, Quebec, K1A 0H3, (1-800-668-6767).

Authority

Based on the scientific evidence that these substances participate in chemical reactions that result in the formation of substances that have been found to be toxic (PM₁₀ and ozone) (section 64 of CEPA 1999), a draft Order proposing that the substances be added to the List of Toxic Substances in Schedule 1 of CEPA 1999 was published on July 27, 2002.

In accordance with the Act, a substance may be added to the List of Toxic Substances if it is determined to be "toxic", that is 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 life depends; or

(c) constitute or may constitute a danger in Canada to human life or health.

The proposed Order published on July 27, 2002 in the Canada Gazette, Part I, provided for a 60-day public comment period during which interested parties were able to file written comments on the direction the Ministers were proposing to take and the scientific basis for their recommendations.

After taking comments received on the proposed Order into consideration, the Ministers have decided to proceed with their recommendation that the substances be added to the List of Toxic Substances in Schedule 1 of CEPA 1999. In order to provide further clarity, "gaseous ammonia" rather than "ammonia" is proposed for listing on Schedule 1 as the precursor substance to PM₁₀. This, together with the previous addition of PM₁₀ to Schedule 1, would provide the authority required to manage the relevant form of ammonia as a PM₁₀ precursor. This will allow the risk management of the sources, uses, and products based on the scientific information generated from the assessment process. Other key federal departments have been consulted on this initiative and on the government response to comments.

Once a substance is added to the List of Toxic Substances in Schedule 1 of CEPA 1999, the Government will proceed in developing risk management options.

Overview of the Specific Substances

Gaseous Ammonia, which has the molecular formula NH₃(g)

Gaseous ammonia is emitted from biogenic and anthropogenic sources and is one of four primary precursor gases that contribute to secondary particle formation. Natural sources include waste product of animal, fish and microbial mechanism, whereas anthropogenic sources include industry and agriculture.

Gaseous ammonia may react with nitric acid (formed via oxidation reactions involving NO_x) to produce particulate ammonium nitrate. Ammonia can also react with water and subsequently aqueous sulfate to form ammonium sulphate particles. Particle nitrate formation will not take place without ammonia. The presence of ammonia tends to reduce particle and precipitation acidity. The rate at which ammonia contributes to particle formation is determined by the relative as well as absolute amounts of NO_x and SO₂ present.

The formation of ammonium nitrate and ammonium sulphate particles is strongly temperature dependent. Cooler temperatures favour ammonium nitrate formation, and warmer temperatures favour ammonium sulphate formation. Thus, there is a strong seasonal pattern to the relative contribution of ammonium nitrate and ammonium sulphate contributions to secondary PM mass.

Gaseous ammonia has a short atmospheric transport potential. For example, 50% of the ammonia emitted from a 1 metre high grassland source is estimated to be removed from the atmosphere by dry deposition within 30 km. This suggests that the connection between the spatial distribution of ambient gaseous ammonia and the spatial distribution of ammonia emissions will be quite strong. It also implies that the role of long range transport in the context of ammonia will be transport of ammonium nitrate or sulphate particles, not of gaseous ammonia itself.

The few Canadian measurements of ambient ammonia are consistent with expectations based upon the current estimates of gaseous ammonia emissions, showing higher concentrations in the Lower Fraser Valley of British Columbia and southern Ontario. Gaseous ammonia is a significant contributor to secondary particle formation in Canada and preliminary estimates indicate that, on average across Canada, ammonium contributes 10% to 20% of the mass of respirable particulate matter less than or equal to 2.5 microns (PM_2.5).

Also, the PSL Assessment Report for PM₁₀ specifies that PM₁₀ can be formed secondarily in the atmosphere from precursors as a result of physical or chemical transformations and identifies ammonia among the principal gas precursors to PM₁₀, which constitutes a danger in Canada to human life or health.

As a precursor, because it is emitted into the atmosphere and then transformed under certain conditions into PM₁₀, gaseous ammonia is considered to be entering the environment in a quantity or concentration or under conditions that constitute a danger in Canada to human life or health. Therefore, gaseous ammonia is considered "toxic" as defined in section 64 of CEPA 1999.

Ozone, which has the molecular formula O₃

Ground-level ozone is a colourless gas found in the lower atmosphere. Virtually none of the ground-level ozone measured in air is directly emitted from biogenic (natural) or anthropogenic (human) sources. Ozone is the product of a complex series of chemical reactions primarily involving two precursor pollutants: nitrogen oxides (NO_x (NO and NO₂)) and volatile organic compounds (VOCs). These precursor gases are emitted from combustion processes often associated with industry and the transportation sector, and from various commercial and industrial processes and solvent use. Some NO_x and VOCs may be produced by biogenic sources, especially in summer when VOC emissions from vegetation (agricultural crops and forests) are greatest.

Not all NO_x and not all VOCs after being emitted into the atmosphere contribute to ozone formation. Since ozone is formed through a photochemical reaction involving NO_x and VOCs, it is generated primarily during the daytime on hot, sunny summer days. There is virtually no ozone generated during night-time when ambient levels tend to drop in polluted areas and weak photochemistry during winter precludes it as a significant wintertime problem. Some localised ambient ozone level reductions also tend to occur in the vicinity of large NO emission sources since NO will "scavenge" some ozone before the photochemistry process begins. This ozone consumption phenomenon is observed to cause localised depressions in ozone levels in urban centres. Despite this, when the full photochemical reaction processes have taken place, it has been clearly demonstrated that NO_x emitted during daylight hours in summer, is a primary cause of elevated ambient ozone levels not just in urban areas but on large regional scales. Acceptance of this conclusion by many jurisdictions around the world has resulted in establishment of aggressive NO_x reduction targets and programs to address ozone. Examples include Ontario's Anti-Smog Plan reduction target of 45%, and the recent U.S. 22-state NO_x rule targets and State Implementation Plans.

A similar but more complicated situation exists with VOCs. There are several thousands of organic compounds in the natural and polluted troposphere that meet the definition of VOCs. Not all VOCs are equally effective in generating ozone in the atmosphere. The more "reactive" VOCs contribute most to peak ozone formation in urban or near-urban areas. However, very few VOCs are of such low reactivity that they can be ignored in ozone control programs. Lower reactivity VOCs depending on their rate of reactivity can contribute to the build-up of background ozone levels during ozone episodes and to the observed long-term build-up of background tropospheric ozone in the Northern Hemisphere.

Ozone and precursor gases can be transported over long distances. This phenomenon is often found in the north-eastern United States and in eastern Canada where large weather patterns are not impeded by major geographic features.

The relationship between ozone and adverse health effects is widely recognized. The association with mortality is relatively recent, and continues to be debated. However, in 1999 the CEPA Working Group on Air Quality Objectives and Guidelines determined that, on the weight of evidence, there was a sufficient scientific basis to support this relationship. It felt that increased mortality could not be explained away by yearly trends, daily variations, epidemics, weather or the occurrence of other pollutants. Mortality studies since that time continue to support the existence of an association between ozone and mortality.

The major health risks have been examined in a number of epidemiological studies in cities in Canada and around the world. They show a consistent relationship with ground-level ozone and adverse health effects. Epidemiological and controlled human exposure studies also show that as the amount of ozone gets higher, then adverse health symptoms increase. Field and controlled human exposure studies have indicated that patients with pre-existing respiratory diseases (e.g., asthma, allergic rhinitis) are more susceptible to ozone-induced health effects, and that exercise makes these effects even more noticeable.

Humans react to ozone exposure with coughs, shortness of breath, increases in airway resistance and bronchial response, as well as airway inflammation. Epidemiological evidence indicates that the effects of ozone on humans may cause more visits to hospital emergency rooms, hospital admissions and mortality.

Estimates of population exposure indicate that most Canadians are exposed to low levels of ozone in Canada, so that most major populations in Canada are at risk of some adverse effects. This exposure is greater in warmer months when ozone levels are higher and people are more likely to spend time outdoors. Exposures are greater in some areas, but the populations of all Canadian cities experience at least some levels at which epidemiological studies find an association with adverse effects.

The SAD for Ground-level Ozone concluded that there is a significant association between ambient ozone and adverse health effects and that significant adverse effects to human health (mortality and morbidity) and vegetation (reduced growth and crop yield) are occurring at ozone levels currently experienced across Canada.

Based on the information available, it is concluded that ozone is entering the Canadian environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity and that constitutes or may constitute a danger in Canada to human life or health. Therefore, ozone is considered "toxic" as defined in section 64 of CEPA 1999.

Nitric oxide, which has the molecular formula NO and Nitrogen dioxide, which has the molecular formula NO₂

Nitrogen oxides (NO_x, defined as the sum of nitric oxide (NO) and nitrogen dioxide (NO₂)) originate from both anthropogenic and natural sources. The main anthropogenic sources are from combustion in transportation, industry and the electric power generating sector, whereas those from natural sources are mainly forest fires, lightning and soil microbial activity.

The SAD for Ground-level Ozone concluded that there is a significant association between ambient ozone and adverse health effects and that significant adverse effects to human health (mortality and morbidity) and vegetation (reduced growth and crop yield) are occurring at ozone levels currently experienced across Canada. The SAD specifies that ground-level ozone is formed in the atmosphere from precursors through photochemical reactions in the presence of sunlight and warm temperatures and that nitrogen oxides (NO and NO₂) are one of the two principal precursors to ground-level ozone.

The PSL Assessment Report PM₁₀ also specifies that PM₁₀ can be formed secondarily in the atmosphere from precursors including NO_x as a result of physical or chemical transformations and identifies NO_x (NO and NO₂) as one of the principal precursors to PM₁₀.

As precursors, because they are emitted into the atmosphere and then participate in chemical reactions that, under certain conditions, result in the formation of ozone and PM₁₀, NO and NO₂ are considered to be entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity, in addition to constituting a danger in Canada to human life or health. Therefore, NO and NO₂ are considered "toxic" as defined in section 64 of CEPA 1999.

Sulphur dioxide, which has the molecular formula SO₂

On average, SO₂ is the precursor that contributes the most to the formation of PM_2.5 in the summer months in eastern Canada. Several anthropogenic source types emit SO₂ as a gas. Volcanoes can emit SO₂ and it may also be created through oxidation of gases emitted by marine bacteria or biological processes in wetlands. However, the concentration of SO₂ in populated source regions is ten times higher than in clean continental air, and seventy-five times higher than in marine surface layer air. This implies that biological and geological sources of SO₂ are typically only a minor component in populated regions.

The reactions by which SO₂ is converted to particulate sulphate have been known for several decades and have been used in regional air quality models since the early 1980's.

The PSL Assessment Report for PM₁₀ specifies that PM₁₀ can be released directly into the atmosphere or formed secondarily in the atmosphere from precursors as a result of physical or chemical transformations and identifies SO₂ as one of the principal precursors to PM₁₀, which is toxic and constitutes a danger in Canada to human life or health.

It is worth noting that SO₂ was also considered in the PSL Assessments for Releases from Primary and Secondary Copper Smelters and Copper Refineries and Releases from Primary and Secondary Zinc Smelters and Zinc Refineries. In these assessments, the risk due to SO₂ released from copper smelters/ refineries and zinc plants was analysed based on both direct exposure to SO₂ and on associated acidic deposition.

Results for direct exposure indicate that there is a risk to vegetation over varying areas near both copper smelters/refineries and zinc plants, to a maximum distance of about 10 km. With respect to humans, levels of SO₂ in ambient air exceed health-based guidelines (the 24-hour World Health Organization Ambient Air Guideline for Europe) on some occasions near all of the facilities, indicating that there is a risk of cardiorespiratory effects in sensitive individuals. For acidic deposition, it was determined that copper smelters contributed up to 8% (relative to all anthropogenic and natural sources) of the SO₂ resulting in acidic deposition at the four Eastern Canadian receptor areas considered. Copper refineries and zinc plants were responsible for significantly lower fractions (up to 0.1% and 0.2% , respectively). U.S. sources were the largest contributors at all four receptor sites.

The assessment document also recognised that SO₂ is an important precursor in the secondary formation of respirable particulate matter.

Based on the information available, it is concluded that SO₂ is entering the Canadian environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity and that constitutes or may constitute a danger in Canada to human life or health. Therefore, SO₂ is considered "toxic" as defined in section 64 of CEPA 1999.

Volatile organic compounds as described in the proposed Order (VOCs)

VOCs, as defined in the proposed Order published in the Canada Gazette, Part I, on July 27, 2002, stem from both anthropogenic and natural sources. Anthropogenic sources include combustion and evaporation processes associated with transportation, the industrial sector, applications of surface coatings (e.g., paints), general solvent use and other miscellaneous sources. As for natural sources, vegetation contributes a significant portion of total Canadian VOC emissions.

The SAD for Ground-level Ozone concluded that there is a significant association between ambient ozone and adverse health effects and that significant adverse effects to human health (mortality and morbidity) and vegetation (reduced growth and crop yield) are occurring at ozone levels currently experienced across Canada. The SAD specifies that ground-level ozone is formed in the atmosphere from precursors through photochemical reactions in the presence of sunlight and warm temperatures and that VOCs are one of the two primary precursors to ground-level ozone.

Also, the PSL Assessment Report for PM₁₀ specifies that PM₁₀ can be formed secondarily in the atmosphere from precursors as a result of physical or chemical transformations and identifies VOCs among the principal precursors to PM₁₀.

As precursors, because they are emitted into the atmosphere and then participate in chemical reactions that, under certain conditions, result in the formation of ozone and PM₁₀, VOCs are considered to be entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity, in addition to constituting a danger in Canada to human life or health. Therefore, VOCs are considered "toxic" as defined in section 64 of CEPA 1999.

Alternatives

Based on the science available, we conclude that all the above-mentioned substances are entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger in Canada to human life or health. Further, ozone and SO₂ are concluded to be entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity. Consequently, the Ministers have determined that the alternative of taking no further action is not acceptable for the six substances mentioned above.

The addition of a substance to Schedule 1, legally enables the federal government to take appropriate actions and to make a full range of management instruments available under CEPA 1999. Management instruments will be analyzed and considered as possible preventive or control actions for the substance during the risk management phase.

Benefits and Costs

By adding O₃, SO₂, NO, NO₂, gaseous ammonia and VOCs to the List of Toxic Substances, the Government is declaring these substances toxic under CEPA 1999.

The decision to amend the List of Toxic Substances in Schedule 1 of CEPA 1999, is solely based on scientific assessment (Ozone SAD, the PM₁₀ SAD, the PSL assessment report for PM₁₀, and is supported by the Meteorological Service of Canada's report on PM precursors). As per the CEPA 1999 definition of a substance, these precursor substances participate in chemical reactions that result in the formation of a substance that is toxic (PM₁₀ and/or ozone) and are therefore also toxic.

During the risk management phase, the government will undertake an appropriate assessment of the potential impacts of a suite of instruments with a balance of preventive and control measures and technologies are expected to be considered in consultation with various federal government departments, provincial and territorial governments and other stakeholders.

Consultation

A Notice Concerning the Assessment of PM₁₀ as a Priority Substance under CEPA 1999 and notices concerning the assessment of the other five substances were published in the Canada Gazette, Part I, as follows:

All Notices were posted on Environment Canada's Green Lane and on the CEPA Registry Web pages. The above notices offered interested parties a 60-day comment period. Publication of the Notices of Intent for ozone and its precursors and the precursors to PM₁₀ was not a requirement under CEPA, but rather an additional opportunity for consultation. The publication of the proposed Order initiated the formal process under CEPA 1999.

A total of thirty-two submissions were received during the public comment period on the proposed Order for the six substances, including four Notices of Objection. Twenty-seven submissions were received from industrial and agricultural associations, and five from provincial governments. One submission supported the proposal, four requested an extension to the comment period, and the remainder expressed various concerns with the process, uncertainties in the science and questions regarding the risk management stage that will be considered when developing specific control instruments to manage the six substances above.

The Notices of Objection were from Alberta Environment, the Canadian Chemical Producer's Association, the Canadian Consumer Specialty Products Association and the Cement Association of Canada. Serious consideration was given to the Notices of Objection and they were carefully reviewed by Health Canada and Environment Canada.

The Notices of Objection received did not raise any information, either scientific or otherwise, that would contribute to a better understanding of, or refute, the nature of the health risks posed by the above substances. The Notices of Objection revealed no new information with respect to the nature and extent of the danger posed by these substances which would warrant the establishment of a Board of Review within the mandate of the Act.

A summary of comments received on the proposed Order and federal government responses may be obtained at the following address (http://www.ec.gc.ca/CEPARegistry/default.cfm).

They can also be obtained from the Transboundary Air Issues Branch, Environment Canada, Hull, Quebec, K1A 0H3, (819) 994-3479 (Facsimile). The government responses to comments received on the Notices of Intent for PM₁₀ precursors and ozone and its precursors were published in the Canada Gazette, Part I, on July 27, 2002, (http://canadagazette.gc.ca/partI/2002/ 20020727/pdf/g1-13630.pdf) and are also available on the CEPA Registry (http://www.ec.gc.ca/CEPARegistry/default.cfm) or by faxing a request to the number listed above.

The Meteorological Service of Canada has compiled a review of available ambient PM_2.5 and precursor data to characterise contributions of the precursors to PM_2.5 mass in Canada; it can be found at: http://www.msc-smc.ec.gc.ca/saib/summary-pm2.5-Eng.pdf.

Additional scientific work and assessment will occur as part of the risk management activities.

No submissions were received regarding the summary of reports of the assessment of Releases from primary and secondary copper smelters and copper refineries, and Releases from primary and secondary zinc smelters and zinc refineries.

The addition of these six substances (NH₃(g), O₃, NO, NO₂, SO₂ and VOCs) to the List of Toxic Substances is justified considering that there have been no additional data or information presented to contradict the conclusions from the available scientific reports.

CEPA National Advisory Committee

The predecessor to the CEPA National Advisory Committee, namely the CEPA Federal Provincial Advisory Committee (FPAC), has been aware of the progress towards declaration of PM₁₀ toxic since its addition to the PSL in 1995, and of the findings of the PM SAD since it was developed by a CEPA FPAC working group. In the spring of 2000, Environment Canada apprised the newly constituted CEPA National Advisory Committee (NAC) of the department's intentions to begin the process of adding the precursors to PM₁₀ to Schedule 1. In the fall of 2000, CEPA NAC provided the Ministers with advice on ozone and its precursors. Many NAC members stated that they did not support the intent to add ozone and its precursors to Schedule 1. Prior to the publication of the proposed Order on the precursors to PM₁₀ and ozone and its precursors on July 27, 2002, NAC members were advised by the Minister of the Environment that the Department was proceeding with the publication of the proposed Order.

Concerns expressed by NAC members were mainly with process and issues related to risk management, and no new information, scientific or otherwise, was brought forward to change the fundamental conclusions that provide the basis for adding ozone and its precursors to the List of Toxic Substances. NAC is periodically being updated on EC's progress on these substances.

Compliance and Enforcement

There are no compliance or enforcement requirements associated with the List of Toxic Substances in Schedule 1 itself.

Contacts

Christian Pilon
Manager
Federal Smog Program
Department of the Environment
Hull, Quebec
K1A 0H3
Telephone: (819) 953-9937

Céline Labossière
Senior Economist
Regulatory and Economic Analysis Branch
Department of the Environment
Hull, Quebec
K1A 0H3
Telephone: (819) 997-2377

Footnote a 

S.C. 1999, c. 33

Footnote b 

S.C. 1999, c. 33

Footnote 1 

S.C. 1999, c. 33

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