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Vol. 137, No. 21 — October 8, 2003 Registration CANADIAN ENVIRONMENTAL ACT, 1999 Regulations Amending the Benzene in Gasoline RegulationsP.C. 2003-1411 25 September, 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 February 1, 2003, a copy of the proposed Regulations Amending the Benzene in Gasoline 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 b) of that Act; And whereas, the Governor in Council is of the opinion that 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) of the Canadian Environmental Protection Act, 1999 (see footnote c) , hereby makes the annexed Regulations Amending the Benzene in Gasoline Regulations. REGULATIONS AMENDING THE BENZENE IN GASOLINE REGULATIONS AMENDMENTS 1. (1) The definition "California Phase 2 gasoline" in subsection 1(1) of the Benzene in Gasoline Regulations (see footnote 1) is repealed. (2) The definition "complying gasoline" in subsection 1(1) of the Regulations is replaced by the following: "complying gasoline" means gasoline that meets the compositional requirements of these Regulations relating to benzene and the benzene emissions number and that has been identified as (a) complying gasoline under subsection 9(1) or (2); or (b) northern winter complying gasoline under subsection 9(1). (essence conforme) (3) Paragraphs (a) and (b) of the definition "blend" in subsection 1(1) of the Regulations are replaced by the following: (a) the mixing of only complying gasolines, U.S. reformulated gasolines or California gasolines or any combination of those gasolines; or (b) the adding of only additives, commercially pure butane or commercially pure oxygenates to complying gasoline, U.S. reformulated gasoline or California gasoline. (mélange) (4) Paragraph (c) of the definition "commercially pure butane" in subsection 1(1) of the Regulations is replaced by the following: (c) a sulphur concentration that does not exceed
(ii) after December 31, 2004, 40 mg/kg. (butane pur de qualité commerciale) (5) Paragraph (c) of the definition "commercially pure oxygenate" in subsection 1(1) of the Regulations is replaced by the following: (c) a sulphur concentration that does not exceed
(ii) after December 31, 2004, 40 mg/kg. (produit oxygéné pur de qualité commerciale) (6) Paragraph (b) of the definition "model parameters" in subsection 1(1) of the Regulations is replaced by the following: (b) the concentration of sulphur in mg/kg; (7) Subsection 1(1) of the Regulations is amended by adding the following in alphabetical order: "California gasoline" means gasoline that (a) meets the compositional requirements described in The California Reformulated Gasoline Regulations, Title 13, California Code of Regulations, Division 3, Chapter 5, Article 1, Subarticle 2; and (b) has been identified as California gasoline under subsection 9(1) of these Regulations. (essence Californie) 2. (1) Subsections 2(2) and (3) of the Regulations are replaced by the following: (2) Subject to sections 9 to 11, these Regulations do not apply to (a) gasoline in transit through Canada, from a place outside Canada to another place outside Canada, and accompanied by written evidence establishing that the gasoline is in transit; or (b) gasoline produced or sold for export and accompanied by written evidence establishing that the gasoline will be exported. (3) Subsection 3(1) and sections 4, 16 and 17 do not apply to U.S. reformulated gasoline or California gasoline. (2) Subsection 2(5) of the Regulations is replaced by the following: (5) Any batch that is supplied during the summer but is intended for use during the winter in the northern supply area is considered to be supplied during the winter if the primary supplier identifies the batch under subsection 9(1) as northern winter complying gasoline. 3. (1) Subsection 5(1) of the Regulations is replaced by the following: 5. (1) Subject to subsection 6(1), all samples must be taken in accordance with any one of the American Society for Testing and Materials sampling methods specifically set out in section 7 of the National Standard of Canada Standard CAN/CGSB-3.5-99, Unleaded Automotive Gasoline. (2) Subsections 5(4) to (6) of the Regulations are replaced by the following: (4) The concentration of sulphur in gasoline referred to in Schedule 1 must be measured in accordance with (a) until December 31, 2003, the National Standard of Canada method CAN/CGSB-3.0 No. 16.1-98, Sulphur in Gasoline by Energy Dispersive X-Ray Fluorescence Spectrometry (EDXRF); and (b) after December 31, 2003, the American Society for Testing and Materials method D 5453-00, Standard Test Method for Determination of Total Sulphur in Light Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence. (5) The vapour pressure of gasoline at 37.8°C (100°F) referred to in Schedule 1 must be measured in accordance with the American Society for Testing and Materials method D 5191-01, Standard Test Method for Vapor Pressure of Petroleum Products (Mini Method) and converted to "dry vapor pressure equivalent" as described in that method. (6) The evaporative fractions of gasoline at 93.3°C (200°F) and 148.9°C (300°F) referred to in Schedule 1 must be measured in accordance with the American Society for Testing and Materials method D 86-01, Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure. (3) Subsections 5(9) to (11) of the Regulations are replaced by the following: (9) The concentration of benzene and that of aromatics in butane referred to in the definition "commercially pure butane" in subsection 1(1) must be measured in accordance with the American Society for Testing and Materials method D 2163-91, Standard Test Method for Analysis of Liquefied Petroleum (LP) Gases and Propene Concentrates by Gas Chromatography. (10) The concentration of sulphur in oxygenates referred to in the definition "commercially pure oxygenate" in subsection 1(1) must be measured in accordance with the American Society for Testing and Materials method D 5453-00, Standard Test Method for Determination of Total Sulphur in Light Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence. (11) The concentration of sulphur in butane referred to in the definition "commercially pure butane" in subsection 1(1) must be measured in accordance with the American Society for Testing and Materials method D 6667-01, Standard Test Method for Determination of Total Volatile Sulphur in Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet Fluorescence. 4. Paragraph 6(2)(a) of the Regulations is replaced by the following: (a) the equivalency of the alternative method to the normally applicable method be validated in accordance with the American Society for Testing and Materials method D 4855-97, Standard Practice for Comparing Test Methods, or the American Society for Testing and Materials method D 3764-01, Standard Practice for Validation of Process Stream Analyzer Systems; and 5. Subsection 8(3) of the Regulations is replaced by the following: (3) Despite sections 5 and 6, a record of analysis as required by the Regulation of Fuels and Fuel Additives: Standards for Reformulated and Conventional Gasoline, Title 40, Code of Federal Regulations of the United States, Part 80, section 80.74 or 80.104, or as required by The California Reformulated Gasoline Regulations, Title 13, California Code of Regulations, Division 3, Chapter 5, Article 1, Subarticle 2, section 2270, may be used to provide the information on gasoline composition for a report referred to in subsection (1). 6. Sections 9 and 10 of the Regulations are replaced by the following: 9. (1) A primary supplier may, before dispatching a batch from a refinery or blending facility or importing a batch, identify the gasoline by recording it as one of the following types: (a) complying gasoline; (b) gasoline for use in aircraft; (c) gasoline for use in competition vehicles; (d) gasoline for use in scientific research; (e) gasoline for export; (f) gasoline in transit through Canada; (g) U.S. reformulated gasoline; (h) California gasoline; (i) gasoline-like blendstock; and (j) northern winter complying gasoline. (2) Any batch of gasoline dispatched by a primary supplier from a refinery or blending facility, or imported by a primary supplier, that has not been identified under subsection (1) is considered, for the purposes of these Regulations, to have been identified as complying gasoline. (3) Every primary supplier must have a record for each batch it dispatches or imports that includes (a) the type of gasoline as identified under subsection (1), unless it is complying gasoline; (b) the date on which the batch was dispatched or imported; (c) the volume and the grade of each batch; and (d) the name and address of the person to whom the gasoline was sold or the address of the storage facility or refuelling facility to which the gasoline was delivered. (4) For each batch of complying gasoline received at a refinery or non-mobile blending facility, every primary supplier must record the name and address of the seller or provider, the date of the purchase or transfer of ownership, and the volume and the grade of the batch. (5) Every primary supplier must have written evidence that establishes that each batch identified under subsection (1) as one of the following types of gasoline was sold or delivered for the use appropriate to the identified type: (a) gasoline for use in aircraft; (b) gasoline for use in competition vehicles; (c) gasoline for use in scientific research; (d) gasoline for export; and (e) gasoline in transit through Canada. (6) For each batch identified under subsection (1) as U.S. reformulated gasoline or California gasoline, every primary supplier must have written evidence that establishes that the batch meets the compositional requirements for U.S. reformulated gasoline or California gasoline, as the case may be. Retention of Records 10. Every primary supplier must retain in Canada any record and any related written evidence referred to in section 9, 13 or 20 (a) for a period of three years from the day on which the record was made, if it was made before January 1, 2004; and (b) for a period of five years from the day on which the record was made, if it was made on or after January 1, 2004. 7. (1) Subsection 12(1) of the Regulations is replaced by the following: 12. (1) Every importer must notify the Minister, at least 12 hours before the time of importation, of the importer's intention to import in the following circumstances: (a) the importation, at any one time, of more than 100 m3 of gasoline identified under subsection 9(1) or (2) as complying gasoline, U.S. reformulated gasoline, California gasoline or northern winter complying gasoline; (b) the importation, at any one time, of any amount of gasoline identified under subsection 9(1) as gasoline-like blendstock; or (c) the importation into a province and within any one day, of more than 1 000 m3 of gasoline identified under subsection 9(1) or (2) as complying gasoline, U.S. reformulated gasoline, California gasoline or northern winter complying gasoline. (2) Paragraphs 12(2)(b) and (c) of the Regulations are replaced by the following: (b) the type of gasoline identified under subsection 9(1), unless it is complying gasoline; (c) the volume of the gasoline that is scheduled to be imported; (3) Paragraph 12(3)(e) of the Regulations is replaced by the following: (e) the type of gasoline identified under subsection 9(1), unless it is complying gasoline. 8. Subsections 13(1) and (2) of the Regulations are replaced by the following: 13. (1) For every batch identified under subsection 9(1) as gasoline-like blendstock, every primary supplier must, before dispatching the batch from its refinery or blending facility or before importing the batch, record the name and address of the person who purchases or receives the batch, the date of dispatch or importation and the volume of the batch that is scheduled to be dispatched or imported. (2) Every primary supplier must provide the Minister, as an annex to the report required under section 8 and for each batch of gasoline-like blendstock that was dispatched or imported during the period covered by the report, with the information prescribed under subsection (1), except the scheduled volume, and with the actual volume of the batch dispatched or imported. 9. Subsection 15(2) of the Regulations is replaced by the following: (2) A primary supplier may cancel the election by notifying the Minister by registered mail or courier any time prior to 60 days before the start of the first year for which the basis will not be a yearly pool average. 10. Subparagraph 18(2)(b)(i) of the Regulations is replaced by the following:
11. Paragraph 19(8)(b) of the Regulations is replaced by the following: (b) a sufficient quantity, at least 1.7 L, of the sample so that analysis for each model parameter can be performed by the Minister. 12. Paragraph 22(2)(b) of the Regulations is replaced by the following: (b) the identification of types of batches dispatched or imported by the primary supplier during the year, under subsection 9(1) or (2); 13. Schedule 1 to the Regulations is amended by replacing the reference "(Section 1)" after the heading "SCHEDULE 1" with the reference "(Sections 1 and 5)". 14. The definition "SUL" in section 1 of Schedule 1 to the Regulations is replaced by the following: "SUL" means the concentration of sulphur in the gasoline, in mg/kg. (SUL) 15. The table to subsection 2(1) of Schedule 1 to the Regulations is amended by replacing the expression "0.000 to 0.100% by weight" opposite the reference "SUL" with the expression "0 to 1 000 mg/kg". 16. The portion of item 2 of the table to section 2 of Schedule 3 to the Regulations in column 1 is replaced by the following:
COMING INTO FORCE 17. These Regulations come into force on the day on which they are registered. REGULATORY IMPACT (This statement is not part of the Regulations.) Description This statement describes the Regulations Amending the Benzene in Gasoline Regulations, hereinafter referred to as the amendments. The Benzene in Gasoline Regulations, hereinafter referred to as the Regulations, were published in the Canada Gazette, Part II, on November 26, 1997. These Regulations limit the level of benzene in gasoline to one percent by volume and control the benzene emission number, which relates gasoline composition to estimated emissions of benzene from vehicles. These Regulations also specify sulphur limits for commercially pure butane and oxygenate, and the required test methods for measuring these limits. The amendments are made to update the Regulations, clarify some provisions, and make the Regulations more consistent with the Sulphur in Gasoline Regulations and other federal fuels regulations. The amendments are of a minor technical nature and do not alter the intent of the Regulations. The amendments are made in parallel with the Regulations Amending the Sulphur in Gasoline Regulations, which have a new and more precise test method for measuring sulphur content. The amendments align the sulphur limits for commercially pure butane and oxygenate in the Regulations with the levels and timings of the sulphur limits in the Sulphur in Gasoline Regulations. The test methods for sulphur are also updated to align the two Regulations. A number of other minor changes have been made at the same time to update the Regulations, clarify some provisions, and make the Regulations more consistent with other federal fuels regulations. The changes ensure consistency between the fuels regulations. The following changes align the Regulations with provisions in the Sulphur in Gasoline Regulations and the Sulphur in Diesel Fuel Regulations as well as the provisions made in the Regulations Amending the Sulphur in Gasoline Regulations: • revise the test methods for measuring sulphur in gasoline, in oxygenates and in butane; • change the units for expressing the sulphur limits from percent by weight to milligrams per kilogram (mg/kg) to express the units in metric and provide consistency with the units of the test methods; • update references in the Regulations to the California Requirements applicable to California gasoline; • update the definitions of commercially pure oxygenate and commercially pure butane to align with the sulphur levels and timing requirements of the Sulphur in Gasoline Regulations; • exempt gasoline produced or sold for export or gasoline that is in transit through Canada, if that gasoline is accompanied by written evidence establishing that it is for export or is in transit (these changes also align the Regulations with provisions of the Fuels Division of Part 7 of the Canadian Environmental Protection Act, 1999) (CEPA 1999); • align the records section with the structure of the records section of the Sulphur in Gasoline Regulations; and • change the requirement for retaining records from three years after the records are made to five years. Additional changes included in the amendments are as follows: • clarify the timing requirements to cancel yearly pool average elections, the definition of complying gasoline and the specific test methods that may be used for taking samples; and • change the quantity of sample required to be retained for analysis to 1.7L to allow for adequate head space in the sample container. As stated earlier, the amendments are of a minor technical nature and do not alter the intent of the Regulations. The Federal Government is as interested as industry in ensuring the use of the most precise test method available, in order to ensure that the objective of the Regulations—namely reduction of sulphur content—is being achieved. Changes such as the use of metric units instead of a percentage to express sulphur content likewise do not change the intent of the Regulations, but achieve consistency with units used in the sulphur test method. Background The former test method for measuring sulphur levels as specified in the Regulations was CAN/CGSB-3.0 No. 16.1. This method was not applicable below 50 mg/kg (50 ppm). With the introduction of lower sulphur limits for gasoline, through the Sulphur in Gasoline Regulations, a more accurate test method for sulphur was required. In a letter dated February 20, 2002, the Canadian General Standards Board (CGSB), representing the industry, informed Environment Canada that "it would be appropriate to replace the current method of analysis for sulphur in gasoline, CAN/CGSB-3.0 No. 16.1, with the American Society for Testing and Materials method, ASTM D5453, and to delete the reference to the American Society for Testing and Materials method ASTM D2622". The replacement test method recommended by the CGSB is becoming the method of choice in Canadian petroleum laboratories and has already been specified as the test method for measuring sulphur concentrations in the Sulphur in Diesel Fuel Regulations, published in the Canada Gazette, Part II, on July 31, 2002. This test method is implemented in parallel with the Regulations Amending the Sulphur Regulations. Since, ASTM D5453 is recognized as a superior method for testing low levels of sulphur content in gasoline, the amendments are introduced to align sulphur testing method for diesel fuel and gasoline. Environment Canada agrees that this new method is a superior method that provides the means to measure sulphur concentrations at low levels with precision for both diesel fuel and gasoline. Accordingly, the amendments are put forth to effect this change. Alternatives Two alternatives were considered in response to industry's request to revise the methods. Status Quo The Minister considered making no changes to the Regulations. Since the Regulations Amending the Sulphur in Gasoline Regulations are made to update the test method for measuring sulphur in gasoline, this would result in different test methods between the two Regulations. For this reason, and given industry's request to change the test method for the Sulphur in Gasoline Regulations, the status quo was rejected. Amendments to Change the Test Method The Minister considered amending the Benzene in Gasoline Regulations to change the test method for measuring sulphur levels specified in those Regulations. Changing the test method would provide for a lower detection limit and better precision for determining the concentration of sulphur in gasoline. Furthermore, changing the test method would result in the same test method being used in the Sulphur in Gasoline Regulations, the Benzene in Gasoline Regulations and the Sulphur in Diesel Fuel Regulations. This option has been selected. Benefits and Costs Industry The test equipment for the method to determine sulphur content that is specified in the Regulations is expensive and is not in widespread use in Canada. The change in test method results in the same test method being used in the amendments as is already specified under the Sulphur in Diesel Fuels Regulations and the Regulations Amending the Sulphur in Gasoline Regulations. Since many fuel producers and importers handle both gasoline and diesel fuel, the change will reduce the costs to industry of measuring the sulphur concentration of fuels. While the impact on costs to industry of the amendments has not been quantified, it is expected to result in overall savings, since there is only one method for measuring sulphur in gasoline and diesel, instead of three. This allows for consistency between the various fuels regulations. Changing the requirements for retaining records from three years to five years may result in some minor additional costs to industry. The other changes are not expected to impose additional costs on industry. Government The amendments are not expected to impose additional costs on the Government of Canada. Changing the test method streamlines testing requirements to determine sulphur levels under three federal fuels regulations. This facilitates enforcement and is expected to result in reduced costs to the Government of Canada. The five-year retention period for records is consistent with other regulations under CEPA 1999 that contain record-keeping requirements. Public The amendments do not affect either the required benzene level or Benzene Emissions Number and do not alter the intent of the Regulations. They do not affect the level of environmental protection that is achieved with these Regulations, therefore, there are no impacts on the public. Consultation The changes put in place by the amendments are of a minor technical nature and do not alter the intent of the Regulations. The changes relating to the sulphur test method are made at the request of industry to change the test method to a recently developed method that provides for more accurate measurement of sulphur at low levels. As stated earlier, these changes are made in parallel with the Regulations Amending the Sulphur in Gasoline Regulations and are also consistent with the test method specified for measuring sulphur concentration in Sulphur in Diesel Fuel Regulations. Consistent with the requirements of subsection 93(3) of CEPA 1999, in July 2002, the Minister of the Environment offered to consult on a draft of the Regulations with the governments of provinces and territories and members of the CEPA National Advisory Committee who are representatives of Aboriginal governments. None of the parties took up the offer to consult within 60 days of the offer being made. The amendments were pre-published in the Canada Gazette, Part I, on February 1, 2003. During the 60-day comments period, comments on the proposed amendments were received from the Canadian Petroleum Products Institute (CPPI), as well as Imperial Oil, Petro-Canada, Suncor Energy Products Inc. and Consumers' Co-operative Refineries Limited who all supported CPPI's comments. All the comments were technical in nature. Subsequently, on April 17, 2003, Environment Canada met with the representatives of CPPI, Imperial Oil, Shell, Suncor, Petro-Canada and Ultramar to discuss CPPI's comments. Some of CPPI's comments were based on technical misunderstandings and others were outside of the scope of the amendments. The remaining comments were addressed through some minor adjustments to the amendments. Specifically, the record-keeping requirements in respect of the volume of gasoline-like blendstock were clarified, and a change regarding prior notification of imports was added. Compliance and Enforcement Since the amendments are promulgated under CEPA 1999, enforcement officers apply the Compliance and Enforcement Policy implemented under the Act. Their compliance promotion activities are limited to the distribution of the Act, the Regulations, and the CEPA 1999 Compliance and Enforcement Policy. The Policy outlines measures to be implemented by Environment Canada scientists and engineers to promote compliance, including education, information and consultation on the development of amendments. This Policy sets out the range of possible responses to alleged violations: warnings, directions and environmental protection compliance orders, ticketing, ministerial orders, injunctions, prosecution and environmental protection alternative measures (which are an alternative to a court prosecution after the laying of charges for a CEPA 1999 violation). In addition, the policy explains when Environment Canada will resort to civil suits by the Crown for cost recovery. When, following an inspection or an investigation, a CEPA enforcement officer discovers an alleged violation, the officer will choose the appropriate enforcement action based on the following criteria: • Nature of the alleged violation: This includes consideration of the seriousness of the harm or potential harm to the environment, the intent of the alleged violator, whether it is a repeat violation, and whether an attempt has been made to conceal information or otherwise subvert the objectives and requirements of the Act. • Effectiveness in achieving the desired result with the alleged violator: The desired result is compliance with the Act within the shortest possible time and with no further repetition of the violation. Factors to be considered include the violator's history of compliance with the Act, willingness to cooperate with enforcement officers, and evidence of corrective action already taken. • Consistency in enforcement: enforcement officers will consider how similar situations have been handled in determining the measures to be taken to enforce the Act. Contacts
Mark Tushingham
Céline Labossière
S.C. 1999, c. 33 S.C. 2002, c. 7, s. 124 S.C. 1999, c. 33 SOR/97-493 |
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