Toluene Diisocyanates – Responses to Comments

Issue: Title of working document

Comments

1) Definition of "miscellaneous foam sector" is not clear. Proposed: Confine P2 Planning Notice to "Urethane foam sector" or clarify the definition of "miscellaneous foam sector" and then reissue a working document soliciting feedback from relevant stakeholders within the sector.

2) Despite the substitution of "Miscellaneous" by "Other" in the Proposed P2 Planning Notice, the scope and applicability of the P2 Planning Notice to the sector remains unclear. Suggested to include in the Notice the applicable North American Industry Classification System (NAICS) code for the sectors impacted so that it is explicit which industries are subject to the requirements of the Notice.^Footnote 2

Response

The NAICS code 326150 was used as a reference to define the sector for which the P2 Planning Notice is being developed. In the Working Document the word "miscellaneous" was used to refer to any foam made of materials that are different from urethane and polystyrene.

The sector to which the P2 Planning Notice applies was modified in the Proposed Notice to reflect more closely the wording described by the NAICS code 326150. However, this NAICS code was not included in the Notice because it includes the word "manufacture". The word "urethane" was replaced by "polyurethane" and the word "miscellaneous" was replaced by the word "Other" in the Proposed Notice.

A definition of the sector has been included in section 1, "Definitions", of the proposed P2 Planning Notice.

Issue: Persons subject to the Notice

Comments

1) The Notice should specify that only facilities whose activities are the ones mentioned are subject to the Notice, and not the companies that use foam in their finished products.

2) Government is complimented for focusing the approach on foam manufacturing sector rather than on foam products that are not of concern. However, this is no evident neither in the notice nor in the associated table. It is recommended a facility statement in the chapeau of the table associated to the final notice and/or in the notice itself be included, indicating the P2 plan and the associated requirements are limited to included facilities.

Response

The facilities addressed by the P2 Planning Notice are the ones within the noted sector that purchase or use more than 100 kg of TDI/year AND that carry out the substance-specific activities listed in the Notice. This definition clearly excludes facilities that purchase and use foam in their finished products, since they do not purchase or use TDI, nor do they manufacture foam.

Comment

TDI suppliers should not be subject to the Notice.

Response

TDI suppliers are not subject to the Notice.

Comment

Many companies are already applying the best technology available and adhere to provincial TDI emissions regulations, therefore, federal P2 plan only adds pressure on polyurethane foam industry to spend capital on unneeded equipment, it does not reduce emissions further.

Response

The Notice requires facilities with TDI emissions greater than 100 kg/year to reduce emissions using BATEA. If the facility is already at BATEA, the emissions are expected to be below the threshold. If the emissions are still higher than the de minimis threshold, the proposed P2 Planning Notice requires facilities to further reduce emissions while taking BATEA into account. 

Comment

Manufacturing is missing from the list of Persons subject to the Notice.

Response

Manufacturing is included in Persons subject to the Notice through the substance-specific activities listed in column 5 of the Table in Section 3 of the proposed P2 Planning Notice.

Comments

1) Listing of "use" is redundant: if a person manufactures or undertakes any activity listed then the facility automatically is involved in use, and therefore use does not have to be specified. "Use" should be removed.

2) Listing of "import" is unnecessary. If a person manufactures or undertakes any activity listed they are included in the Notice and whether the TDI are imported or not does not matter. "Import" should be removed.

Response

The definition of persons subject to the Notice has been revised to avoid any redundancy.

Issue: Schedule 1 of the Act

Comment

Current internet listing and other sources do not show that TDI have been added to the Schedule 1 of the Act; the P2 Notice could accurately reflect the status of TDI in the CEPA process. Environment Canada should strive to keep up to date the public representations they reference.

Response

The proposed Order to Add TDI to Schedule 1 of the Canadian Environmental Protection Act, 1999 was issued on September 20, 2008.

The final order to add TDI to Schedule 1 of the Act was published on May 12, 2010 in Canada Gazette, Part I.

Issue: Sector-wide factors to consider for the Notice

Comments

1) First factor is not actionable, it is a policy; it should be clarified how a person or facility preparing a P2 plan would act or consider this as a factor to consider.

2) Second factor is not actionable, it is a definition.

3) Although the definition for P2 is well established, other improvements to the environment or human health can be delivered through other mechanisms. For example, if end of pipe technology delivers significant emission reduction, although not strictly P2 by definition, it must be recognized in any plan.

Response

The Notice does not prescribe how emissions should be reduced. It is up to the facility to develop the way to reduce emissions through the application of BATEA. Under this P2 Planning Notice, one of the factors to consider is that persons subject to the Notice are to give priority to pollution prevention activities to address releases of substances in Schedule 1 of CEPA 1999, to reduce the overall risk to the environment or human health. This means that persons subject to the Notice must take this factor into account in their P2 plan. If other environmental protection methods are chosen over P2 activities, then facilities must specify the other method used and explain why.

Issue: Period to prepare and implement the plan

Comment

Time for preparation of the plan allows for studying and determining options, but will Environment Canada expectations for the plan itself allow for more studying of options or R&D activities to determine feasibility? If an organization has properly considered and explored options, then made an honest attempt, given the information they had available, will they be penalized if they fail to meet the expectations? Environment Canada should support innovative approaches and not penalize organizations or hinder the taking of appropriate risk.

Response

P2 Planning Notices support innovation. Persons subject to a P2 Planning Notice have the flexibility to develop a P2 plan that is suitable to their facilities as long as it meets the requirements of the Notice. Persons subject to the Notice who fail to meet the RMO must explain why they did not meet the RMO.

P2 Planning Notices are enforced in accordance with Environment Canada's Compliance and Enforcement Policy for the Canadian Environmental Protection Act, 1999.

Comments

1) 12 months is not sufficient for research and put together the plan; more time should be considered or enable extensions.

2) 48 months is not sufficient to complete the implementation of the plan, should have ability to extend the timeline of the plan with justification.

Response

Under section 56(3) of CEPA 1999, a person may apply for an extension of the period published in the Notice for the preparation and/or implementation of a P2 Plan by submitting a written request for an extension before the expiry of the period referred to in the Notice or any extended period.

Comment

The P2 Plan should recognize the ability to modify the plans via Interim reports, due to timing, standard business practices, R&D failures or breakthroughs. Timing recommended to amend (the plan, declarations, etc) should be 60 days or with the next update of the interim report if it is due within the 60 day period.

Response

Subsection 58(3) of CEPA 1999 states that "Where a person has filed a declaration under subsection (1) or (2) and the declaration contains information that, at any time after the filing, has become false or misleading, that person shall file an amended declaration to the Minister within 30 days after that time."

Comments

1) Depending on timing of entry into force or if the plan takes more time than suggested, more than 2 suggested interim progress reports may be submitted.

2) Submitting the Interim report at each June 1st does not take into account the point in time a facility becomes subject. For instance, if requirements come into force the first day of May, a report on a month's progress is not of value. It is suggested that Interim reports become due 12 months after entry into force OR on the first of June if the entry into force was not any time 6 months previous.

Response

Typically, one interim progress report/year must be submitted, and in total this Notice will require 2 interim progress reports to be submitted. The first interim progress report must be filed at least 24 months after the date the person becomes subject to the Notice.

Issue: Information to be submitted in declaration and reports, and deadlines

Comment

This P2 plan is not a product regulatory action; therefore, P2 requirements should include substance transfers in waste and recyclables and exclude off-site substance transfer.

Response

Substance transfers in waste and recyclables have been included in the reporting Schedules. Off-site substance transfers have also been included to keep track of the substance.

Comments

1) In any document from the P2 plan, confidential business information should be protected. Schedules should be completed without divulging confidential information.

2) The facility map required should be treated as presumptively confidential, and Environment Canada should create provisions in the Notice to effectuate this presumption; a simple representation of the facility should be sufficient to meet requirements.

Response

Under CEPA 1999, any person who provides information, including a response to a P2 Planning Notice, may submit a written request that specific information be treated as confidential. Such written requests must accompany the document (schedule being filed) and must clearly indicate the part(s) of the document to which the request applies.

All requests for confidentiality will be reviewed under the provisions of sections 315 to 321 of CEPA 1999 and section 20 of the Access to Information Act.  Each request for confidentiality is evaluated on a case-by-case basis and the person will be notified of the decision in writing.

Comment

It is questioned whether "Monitoring and reporting, including methodology" is not a duplication of the reporting of the "results achieved to date, timelines, calculations and methods to reduce releases".

Environment Canada is encouraged to avoid duplicates or explain the differences of what the bullets are asking.

Similarly, what is the value of including in the P2 plan methods/methodology listed in these bullets? A summary of the method similar to the NPRI approach would be appropriate.

Response

"Results achieved to date" refers to reduction of emissions.

Monitoring and reporting is related to a possible emissions measurement program that the facility could put in place if they decide to do so as part of their P2 plan to address the requirements of the P2 Planning Notice.

The reporting schedules have been published as part of the proposed P2 Planning Notice for a 60-day public comment period.

Issue: Consistency

Comments

1) The table and the other text in the Notice should be consistent, but when there are differences between them, which part of the document will prevail? The Notice should be screened out for inconsistencies but also include a statement of which part of the document will prevail.

2) Experience has illustrated organizations will read any document in isolation. Environment Canada is urged to clearly create internally consistent sections that can read as stand alone requirements. This will avoid confusion.

Response

The substance-specific information outlined in the Table is part of the proposed P2 Planning Notice and has been referenced as such in the Notice.

Issue: Contact names

Comment

For the plan and schedules, it is suggested that facilities submit only the position title rather than names for individuals.

Response

Individual names are necessary and required in reporting schedules for correspondence purposes with the persons/technical contact authorized to represent the facility/person subject to the Notice. Persons' contact information is never publicly posted. Both names and position titles are required in the proposed P2 Planning Notice.

Issue: Multi-location companies

Comment

In the P2 plan, under company name, it is suggested that a company with multiple locations use a consistent company name.

Response

Agree. However, not each location will be subject, depending on whether the facility meets the requirements of the Notice.

Comment

Should have the option to adopt individual plans per site or a single P2 plan applicable to multiple facilities at different locations, where appropriate, even if each facility must ultimately submit its own Declarations and Progress Reports.

The organization should have the flexibility to keep the plan and the associated data at a central location but within Canada.

Response

Section 57(1) of CEPA 1999 indicates that a facility may use a plan prepared for other purposes as long as it meets the requirements of the Notice.

However, under section 59 of CEPA 1999, every person who is required to prepare a P2 plan shall keep a copy of the plan on site at the place in Canada in relation to which the plan is prepared. In addition, each facility subject to the P2 Planning Notice will be required to file all the required schedules, as specified in the Notice.

Issue: Reporting documents

Comment

Unnecessary data collection should not be included in the plan, for instance, product data; any reporting required under a P2 plan should address the risk identified that caused the pollution prevention plan and not be extended into extraneous reporting.

Response

Environment Canada will require persons subject to the Notice to submit the data that are considered to be needed to ensure effectiveness of P2 plan at meeting its objectives, including the Risk Management Objective.

Issue: Discontinue compliance with pollution prevention planning Notice

Comment

As an incentive for foam manufacturing facilities with more than de minimis TDI releases, the Notice should propose conditions under which a facility would be able to discontinue compliance with a P2 Plan. Alternatively, P2 plan should remain in effect for only a pre-determined number of years, after which the need of it can be reassessed.

Response

Obligations under a Notice are ongoing unless specified by the Notice.

Issue: Concept of base year

Comment

The Risk Management Objective that stipulates a reduction within 48 months after the date of publication of the Notice should equally introduce the concept of base year which will consider the improvements made by the facilities before the publication of the final Notice.

Response

For this P2 plan the preparation year is the first year of reporting, which starts when the Notice is published. Since the risk management objective for TDI is to reduce TDI emissions through the application of BATEA, the introduction of a base year different from the preparation year would not make any difference in the net results achieved by the P2 plan, once it is fully implemented.

Issue: Timing of amendments

Comment

Should be 60 days or within the next update of the interim report if it is due within the 60 day period.

Response

Section 58(3) of CEPA 1999 indicates that persons subject to the Notice must submit amendments within 30 days of information becoming false or misleading.