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Polybrominated Diphenyl Ethers(PBDEs) - Response to Public Comments

The Consultation Document on the Proposed Risk Management Measure for Polybrominated Diphenyl Ethers (PBDEs) was published on February 5, 2013 for a 60-day electronic public consultation period. Eight organizations provided comments: Boeing, Bombardier, Canadian Environmental Law Association (CELA), Bromine Science and Environmental Forum (BSEF), Canadian Vehicle Manufacturers’ Association (CVMA), Ecojustice, Association of International Automobile Manufacturers of Canada (AIAMC), Intelligent Global Pooling Systems (iGPS).

A summary of comments and responses is included below, organized by topic:

General Comments on the Risk Management Measure

Comment:
The scope of risk management measures under consideration in the Consultation Document is limited.  Concerns regarding the delay in addressing commitments made in the Final Revised Risk Management Strategy for PBDEs published in August 2010. 
Response:
The current proposed prohibition of the manufacture, use, sale, offer for sale, and import of all PBDEs (substances) is another step in reaching the commitments made in the Final Risk Management Strategy for PBDEs (August 2010).  As noted in the Consultation Document, three of the six proposed controls listed in the Final Risk Management Strategy on PBDEs have already been completed. Furthermore, Canada is among the leaders on international action on DecaBDE.  The United States Environmental Protection Agency (US EPA) is continuing work on their Action Plan on PBDEs and in 2012, DecaBDE was included as a substance of very high concern under the European Union’s REACH program.  The commercial mixture DecaBDE was nominated for listing to the Stockholm Convention. This chemical is undergoing a risk management evaluation in accordance to Annex F of the Convention.  It has already satisfied the screening criteria set out in Article 8 of the Convention.  A risk profile has also been completed for this chemical in accordance with Annex E to the Convention.

Comment:
Support for the continued regulation of PBDEs and recommendation for a swifter implementation timeframe than is proposed.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012 extend the regulatory controls for PBDEs. Comments received will be considered prior to publishing the final amendments to the Prohibition of Certain Toxic Substances Regulations, 2012.

Comment:
Concern with the current approach of conducting individual assessments and developing individual risk management approaches for flame retardants.  Recommendation for Environment Canada and Health Canada to review and assess flame retardants holistically and that flame retardants be assessed as a class of substances.
Response:
The Government of Canada’s Chemicals Management Plan was introduced in 2006.  As it has continued to evolve, Phase II of the Plan introduced a substance groupings initiative.  One of the substance groupings in this initiative is the “Certain Organic Flame Retardants Substance Grouping” which has been created to assess a series of organic flame retardants in a more holistic manner.  The final assessment conclusions for the certain organic flame retardants substance grouping are expected by Spring 2016.
For further information on the certain organic flame retardants substance grouping, please consult the Chemcials Management Plan website.

International Considerations

Comment:
Concerns that the proposed risk management approach is not aligned with international risk management actions on PBDEs with respect to the scope, timing and availability of alternatives and treatment of replacement parts.
Response:
The Government of Canada seeks to align its domestic regulatory action with international jurisdictions as appropriate. 
International risk management of PBDEs is underway.  In May 2009, the Fourth Conference of the Parties listed tetraBDE, pentaBDE, hexaBDE, and heptaBDE (components that make up the PentaBDE and OctaBDE commercial mixtures) to Part 1 of Annex A of the Stockholm Convention, with specific exemptions for recycling articles, until 2030 at the latest.  In December 2009, the components of the PentaBDE and OctaBDE commercial mixtures were also added to Annex I of the Long Range Transboundary Air Pollution Protocol on Persistent Organic Pollutants.  Canada has ratified the amendments listing PBDEs to both these treaties.  The commercial mixture DecaBDE was nominated for listing to the Stockholm Convention in May 2013. This chemical is undergoing a risk management evaluation in accordance to Annex F to the Convention.  It has already satisfied the screening criteria set out in Article 8 of the Convention.  A risk profile has also been completed for this chemical in accordance with Annex E to the Convention.
Risk management actions are currently underway or exist in the United States and European Union for PBDEs.  Recently, the US EPA proposed additional controls for DecaBDE.  Information on existing international risk management can be found in the Final Revised Risk Management Strategy for Polybrominated Diphenyl Ethers (PBDEs) (August 2010).
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, will add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  For the purposes of these regulations,  a manufactured item is a product that is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design. Therefore, manufactured items containing PBDEs are not subject to this proposed Amendment.

General Comment

Comment: The public comment period identified in the Consultation Document is incorrect.
Response: The date was corrected and the Consultation Document was re-published.

Comments and Considerations for Products containing PBDEs

Comment:
While industry has been progressively phasing out the use of decaBDE, materials containing decaBDE continue to be incorporated into parts and products imported to Canada.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
The aerospace industry can incur a long production cycle for their products; manufacturing of certain components may start as early as 18 months before the delivery of the product. 
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
Currently, drop-in alternatives do not exist for all uses of decaBDE.  The uncertainty regarding the viability of alternatives is a significant additional difficulty to the decaBDEs phase out and should not be overlooked. 
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
An alternative flame retardant has not been identified for all vehicle applications using decaBDE at this time.  There will be ongoing uses that are needed given the development cycle and testing requirements for vehicles and vehicle components.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
The Government of Canada should clarify  that the February 2013 Consultation Document on the Proposed Risk Management Measure for PBDEs does not apply to manufactured end use products ; rather only to commercial mixtures containing PBDEs.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
DecaBDE is currently used within many aerospace products to meet Transport Canada and US Federal Aviation Administration aircraft flammability stringent regulations and therefore, key safety requirements.  Typical applications include epoxy resins, adhesive tapes and composite floor panels.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
Concerns that the proposal may have an impact on replacement parts and the ability to continue to produce and sell replacement parts.  Replacement parts will continue to be manufactured or imported and sold after the implementation of the proposed prohibition.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

Comment:
Concern that should the prohibition apply to products already on the market, it will not be feasible to identify products containing PBDEs and to replace them with alternatives.
Response:
The proposed Amendments to the Prohibition of Certain Toxic Substances Regulations, 2012, would add PBDEs (substances) to Schedule 1 Part 2 of the Regulations which is Prohibited Toxic Substances Unless Present In Manufactured Items.  A product that is a manufactured item is formed into a specific physical shape or design during its manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design, containing PBDEs is not subject to this proposed Amendment.

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