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Toluene Diisocyanates – Responses to Comments

Responses to Stakeholders' Comments on the
Working Document for the Potential Pollution Prevention Planning Notice for the Urethane and Miscellaneous Foam Sector (excluding Polystyrene)
and on the
Proposed Pollution Prevention Planning Notice in Respect of Specified Substances on Schedule 1 of the Canadian Environmental Protection Act, 1999, Implicated within the Polyurethane and Other Foam Sector (except Polystyrene)
Under Part 4 of the Canadian Environmental Protection Act, 1999 (CEPA 1999)

Plastics and Rubber Section
Chemical Production Division
Environment Canada

Summary

Toluene Diisocyanates (TDI) were found to meet one or more of the criteria set out in section 64(c) of the Canadian Environmental Protection Act, 1999 (CEPA 1999) on July 5th, 2008. Under the Act, a proposed Risk Management Instrument must be published in the Canada Gazette, Part I, by July 3, 2010.

Environment Canada is developing a sector-based Pollution Prevention (P2) Planning Notice for the Polyurethane and Other Foam Sector (except Polystyrene). The first substances to be addressed by the proposed instrument are Toluene Diisocyanates (TDI), which collectively refer to 2,6-Toluene Diisocyanate (CAS RN 91-08-7); 2,4-Toluene Diisocyanate (CAS RN 584-84-9); and the Mixture of 2,6-Toluene Diisocyanate and 2,4-Toluene Diisocyanate (CAS RN 26471-62-5). This sector P2 Planning Notice will allow the addition of other substances on Schedule 1 of CEPA 1999, as may be required in the future, with substance-specific risk management objectives and requirements.

A working document containing the elements of the proposed Notice was drafted and distributed via email for comments to all industry stakeholders within the Urethane and Miscellaneous Foam sector (excluding Polystyrene). This email consultation on the Working Document for the P2 Planning Notice for the Urethane and Miscellaneous Foam Sector (excluding Polystyrene) occurred from November 12, 2009, to December 23, 2009 (30 working days).

As part of the consultation process, Environment Canada hosted a meeting with stakeholders to discuss comments received from stakeholders on the working document and to present the draft Proposed P2 Planning Notice for discussion and comments. A total of 18 participants representing various stakeholder groups from the industry, non-governmental organizations and aboriginal groups took part in the consultation workshop held in Ottawa on March 22, 2010.

This document outlines the various comments received from stakeholders on the Working Document and on the draft Proposed P2 Planning Notice, and how they have been considered and addressed during the development of the Proposed P2 Planning Notice.

The comments received are presented in two parts: Part I includes comments on the overall approach and Part II includes comments on the content of the Core Part and the Substance-specific Part of Working Document and the draft P2 Planning Notice. The comments are further organized by issues according to their nature and to the section of the Working Document and draft Proposed P2 Planning Notice to which the comment is related.

All comments received were taken into account and, where appropriate, modifications have been reflected in the Proposed Pollution Prevention Planning Notice published in Canada Gazette, Part I, on July 3, 2010.

Return to Table of Contents

Part I: Comments on Overall Approach

Issue: Pollution prevention planning approach

Comment

Need of federal P2 Plan is questionable. If P2 is necessary, there should be guidance as to how much emissions must be reduced further, and a cap to dollar spent to emissions reduced ratio.

Response

Different instruments were considered. A P2 Plan is considered the most appropriate instrument for this sector and type of emissions. Factors to consider highlight expectations with regard to measures that can be put in place and expected emissions reductions.

Comment

Environment Canada is taking the correct approach on risk management related to TDI at this time, given available scientific and other relevant information.

P2 Plan is a preferable approach to regulations or release guidelines to manage TDI releases.

Response

Environment Canada and Health Canada appreciate the support of this approach.

Comment

In developing the P2 plan, prescribed targets for improvement or actions should be discouraged but an approach or format that encourages creativity should be the norm.

Response

P2 Planning Notices allow for environmental protection innovation because those persons subject to the Notice can develop a P2 plan in a manner that is suitable to their facility, provided that it meets all the requirements of the Notice.

The evaluation, by the Minister, of the effectiveness of the P2 Planning Notice with respect to the risk management objective will determine whether other measures, including regulations, are needed to further prevent or reduce negative impacts of the substances on Schedule 1 of CEPA 1999, on the environment and human health.

Comment

Any change in risk management approach from that proposed in the Risk Management Approach document should be made transparently. It is important that the "further information from industry" and the "technical study on TDI" be released so that the public can understand and assess the reasons for changing the risk management approach.Footnote 1

Response

The study was edited to remove any sensitive business information and distributed to interested stakeholders on April 15, 2010.

Issue: Scope of pollution prevention planning Notice

Comment

P2 Plan should be in alignment with other regulatory initiatives within Canada, should not conflict or create conditions opposite to policy objectives.

Response

Environment Canada strives to avoid conflict and assure consistency in the development of this proposed sector-based P2 Planning Notice.

Comment

Organization suggested that the scope of this P2 plan be narrowed to reduce the working groups and assure getting the work done right the first time, as this is one of the first P2 plans of the Chemical Management Plan.

Response

Environment Canada and Health Canada are combining efforts to develop multi-substance risk management instruments, where appropriate, to achieve the goals of the Chemicals Management Plan in a more efficient way.

Comment

Multi-substances instruments are positive and supported: they are needed for CMP success, and if done properly, they reduce cost and streamline burden for stakeholders.

The addition of substance criteria for what constitutes a "relevant substance" should be subject to consultation. Criteria for relevancy could be established in advance or with the first version of a P2 plan – as a potential appendix to the plan.

Response

Only substances added to Schedule 1 of CEPA 1999 can be managed by a P2 Planning Notice.

Any addition of substances to the substance-specific section of this sector-based P2 Planning Notice or other changes made to the P2 Planning Notice will be considered an amendment to the P2 Planning Notice.

Any amendments to the P2 Planning Notice will follow a similar consultation process and require pre-publication of the proposed amendments in Canada Gazette, followed by a 60-day public comment period prior to final publication of the amended P2 Planning Notice in Canada Gazette.

Comments

1) Clarify whether the TDI set of declarations and reports will need to be reissued after the addition of new substances, or separated from the new substances, or whether each new substance will need an individual report. Further discussion and clarity is suggested for timing as well.

2) Suggest that a separate Notice be prepared for any new substances considered for development of a P2 Planning Notice instead of amending the P2 Planning Notice to add new substances. The requirements in the existing P2 Planning Notice may not be adaptable or applicable to new substances and addition of new substances will likely impact stakeholders beyond those involved in the existing Notice. Besides, amending a Notice may create more work/effort for Environment Canada than developing an entirely new Notice.Footnote 1

Response

The TDI set of declarations and reports will not need to be reissued after the addition of new substances to the P2 Planning Notice. A new set of schedules for each new substance added in the future to the P2 Planning Notice must be submitted by persons subject to the Notice.

The only case in which the schedules for TDI (or any other given substance addressed by the Notice) must be reissued and resubmitted is when the Notice is amended to add a new activity related to the sector and to the substance.

Issue: Regulatory instruments

Comment

Should not create artificial markets and/or conditions that favour alternative technologies.

Response

P2 Planning Notices do not prescribe the content of the plan nor technologies. P2 Planning Notices allow for environmental protection innovation.

Issue: Objective of pollution prevention planning Notice

Comment

It is positive that in the working document for the P2 plan there is no pre-determined target for reduction nor information indicating what improvement is required. The P2 plan should encourage the principle of reduction, not elimination.

Response

The risk management objective (RMO) for TDI is to reduce TDI releases to the environment to the greatest extent possible using best available techniques economically achievable.

Comments

1) For Environment Canada, it appears that as long as the approved plan has been implemented correctly, there is no need for long term follow-up beyond the termination date. However, newer better techniques could be established that may require a new P2 plan. The goal of Environment Canada should be to reduce toxic emissions to whatever is technically feasible no matter what the cost.Footnote 1

2) In the case of a plant expansion or increase in production, it seems the same pollution reduction techniques will apply. However, the reduction in totally emissions may no longer be adequate to prevent harm. In this case, Environment Canada should follow the industry over the long term and if warranted prevent expansion until better techniques are found.Footnote 1

Response

Environment Canada will undertake a periodic review of the risk management approach to determine if further reductions are necessary.

Issue: Consultation process

Comment

Environment Canada should have active ongoing individual consultations and share the final proposal before publication with those directly impacted.

Response

Consultations are a key element in the development of all risk management instruments. Consultations with stakeholders took place on the working document and draft proposed P2 Planning Notice for the Polyurethane and Other Foam Sector (excluding Polystyrene) with respect to TDI. The comments received were considered in the development of the Proposed P2 Planning Notice published in Canada Gazette, Part I on July 3, 2010, for a 60-day public comment period.  Comments received during the 60-day public comment period will be considered during the development of the Final Notice.

Comment

For a greater chance of success in the development of the risk management instrument, Environment Canada should go beyond paper consultations and encourage verbal dialogue and personal interaction with stakeholders.

Response

A face-to-face meeting with industry, NGOs, and interested stakeholders was held in Ottawa on March 22, 2010.

Comment

Results from consultation should be disclosed to participants.

Response

A report on the consultation session was distributed to participants. This Response to Comments received during consultations was published on P2 Planning section of Environment Canada's website.

Comment

Recommended that in the consultations Environment Canada shows how the Cabinet Directive on Streamlining Regulation and the criteria from the Treasury Board Assessing, Selecting and Implementing Instruments for Government Action were considered and incorporated in the selection and development of this P2 Plan.

Response

In accordance with Treasury Board requirements, the selection of the risk management instrument was completed using the Instrument Choice Framework (ICF).

Issue: Forms associated with pollution prevention planning Notice

Comment

Forms (schedules) were not presented for review. Forms can have many issues such as the level of detail required in methodology, confidential business information, or bias information included. Any plan should set reasonable minimum requirements and then allow the facility with local knowledge and expertise decide. It is recommended that the forms be constructed as neutral reporting documents, and be subject to consultations. Standardized forms should be used.

Response

As with all other P2 Planning Notices, templates for all the schedules have been used as a basis and tailored to meet the needs of this specific P2 Planning Notice. These reporting Schedules are considered part of the proposed P2 Planning Notice that is subject to a 60-day public comment period after its publication in the Canada Gazette, Part I.

Issue: Comments on follow-up document

Comment

In this document it is not clear what is meant by "the sector".

Response

A definition of the sector has been included in the proposed P2 Planning Notice.

Comment

It is suggested that any new materials generated after final assessment that modified the direction of this risk management be made available to stakeholders, recognizing confidentiality constraints.

Response

The study requested by Environment Canada after the final assessment of TDI was disclosed to interested stakeholders after removing the parts that contain confidential business information.

Footnotes

Footnote 1

Comment on draft Proposed P2 Planning Notice received from Consultation on TDI on March 22, 2010.

Return to first footnote 1 referrer

Return to Table of Contents

Part II: Comments on the Core Part of the Working Document and Draft P2 Planning Notice

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.

Footnotes

Footnote 2

Comment on draft Proposed P2 Planning Notice received from Consultation on TDI on March 22, 2010.

Return to footnote 2 referrer

Return to Table of Contents

Comments on the Substance-specific Part (Table 1) of the Working Document and Draft Proposed P2 Planning Notice

Issue: Toluene diisocyanates' toxicity

Comment

Given the substantial technical issues associated with the National Toxicology Program (NTP) gavage study on TDI, the results of that study should not be considered as a valid test of the carcinogenic potential of TDI. When this view is combined with the absence of a carcinogenic potential in the route-relevant inhalation oncogencity study of TDI, there remains no valid evidence of a carcinogenic potential for TDI and therefore this endpoint should not serve as the criterion for declaring TDI to be categorized as Toxic under CEPA 1999.Footnote 3

Response

The screening assessment for TDI was completed on July 5, 2008, and it was based on scientific information available at that time and on data provided by industry and interested stakeholders prior to the publication of the final screening assessment report in Canada Gazette.

Once a substance is classified as meeting one or more of the criteria set out in section 64 of CEPA 1999, a risk management instrument must be developed.

Issue: Activities for which the plan is to be prepared

Comment

Structural foam can be different from rigid foam; it is recommended the two types of foam be separated and separate entries be present.

Response

Change has been made in the proposed Notice.

Comment

"Cutting and shaping of foam" is a sub-process of foam manufacturing; therefore, it is redundant to include it as a separate entry. Besides, no TDI risks of exposure were identified with cutting and shaping in the risk assessment or risk management documents. So, without apparent justification to include, it is recommended "cutting and shaping of foam" be deleted from the Notice.

Response

This activity could be done on-site or off-site by another company. Cutting and shaping of foam is subject to the Notice only if it is done as part of the foam manufacturing process.

Comment

"TDI storage in tanks" is a sub activity of manufacturing, and thus it is redundant to include it as a separate entry. It is recommended "storage in tanks" be deleted from the Notice.

Response

"Storage in tanks" was added for greater certainty.

Issue: Substance-specific risk management objective

Comment

The inclusion of a reference to BATEA in the risk management objective listed in the table would be positive.

Response

Change has been made in the Proposed Notice.

Comment

Clarify if the final instrument will be published in Canada Gazette I or in Canada Gazette II, as Gazette II is nominally for final instruments whereas Gazette I is for "proposals".

Response

All proposed and final P2 Planning Notices are always published in Canada Gazette, Part I, as indicated in the Pollution Prevention Planning Provisions of Part 4 of the Canadian Environmental Protection Act, 1999 Guidelines for Implementation. These Guidelines are posted on the P2 Planning Section of Environment Canada's website ().

Comment

It should be indicated that the Notice published in Canada Gazette I is the final instrument indicating it as: "…publication of the final Notice in the…"

Response

Comment has been considered and the wording used was revised.

Comment

The main problem of the Notice is that it does not include an explicit reduction target, which makes it very difficult for the government or the public to "evaluate the successfulness of the Notice" and whether it has achieved the risk management objective for TDI.Footnote 3

Response

P2 Planning Notices allow flexibility for persons subject to the Notice to develop a P2 plan in a manner that is best suitable for the facility, as long as it meets the requirements set out in the Notice. At the end of the process, it is expected that a report will be published to evaluate the success of this Notice.

Comment

There is a discrepancy between the risk management objective for TDI as stated in Factor (1) of the Notice and as stated in Column 6 of Table 1 of the Notice. The first says "reduce the releases to the environment" and the second says "Reduction of TDI releases to the environment to the greatest extent possible using best available techniques economically achievable". Reduction targets should be set to achieve the greatest possible reduction in TDI emissions.Footnote 3

Response

Factors to Consider have been revised and the inconsistencies have been removed.

Issue: Sampling and testing for toluene diisocyanates (factors 1 to 4)

Comment

It is not always possible to conduct testing beyond a facility's site boundaries due to private property ownership; therefore, this requirement should not appear in the proposed Notice.

Response

Facilities subject to the Notice can choose between two possible approaches for sampling and testing of TDI: either through testing of TDI releases in stack or through testing of TDI concentration at or beyond the facility's site boundaries. If one approach is not possible for any reason, the other one should be chosen.

Comment

There is no mention of BATEA associated with this action and there should be, such as at what concentration and at what cost? Has there been a cost analysis conducted for sampling and testing?

Response

Sampling and testing for TDI should be done in accordance with one of the methods mentioned in the list of factors to consider. A cost analysis has been conducted for sampling and testing.

Comment

Are there currently methods available to accomplish the sampling and testing for TDI in ambient air at or beyond facility site boundaries requirements? Is there currently capacity to conduct this activity in Canada, not only for a facility but for a sector; that is: can Canadian consultants truly manage the workload? -That is not what they say.

Response

References to measure/estimate TDI in ambient air are given in the Notice.

Comment

It is questioned if sampling and testing methods 4(a) to 4(d) should be specified since they may or may not be applicable for a specific situation; companies should be given the liberty to choose the methods to be used. It is suggested the Notice say these of those equivalent and if an organization has reason to use a different albeit equivalent it is allowed with the requirement that the facility provide the data or information that the alternative equivalent method is equal or better.

Response

Under subsection 56(5) of CEPA 1999, a person subject to a Notice can submit a request that a factor to be considered in the preparation of a pollution prevention plan be waived. Schedule 2 of the Notice is the form prescribed for a Request for Waiver of the Requirement to Consider a Factor or Factors which must be signed and received before the deadline specified in the Notice. The Minister evaluates the request for a waiver based on the information and rationale provided on a case-by-case basis.  

Comment

Sampling and testing methods listed under 4a should be moved to 4b since they are for stacks rather than ambient air.

Response

Comment was considered and incorporated in the Proposed Notice. 

Comment

Supports that facilities have the flexibility to determine which monitoring option is best suitable in light of their individual circumstances. However, the person is concerned that the clarity of choice between monitoring options is not well characterized in the Notice and may lead to confusion. It was unclear in the consultation whether the facility must meet one, both or either of the monitoring options. Suggests that the monitoring options and associated thresholds be clearly stated in the Notice to avoid uncertainty.Footnote 3

Response

Comment was considered and wording used was revised.

Comment

Considering the human health and risk management objectives for TDI, it is unacceptable that a facility may choose not to perform the measurement outlined in Option 1 (Measuring TDI concentration at or beyond facility site boundaries). In that case, how could we possibly know whether the plan has been successful from a risk management and human health perspective? Options 4(b) – 4(d) are important because they can help to pinpoint aspects of the operation that could use some work to prevent pollution, but they should not be seen as an alternative to "Option 1".Footnote 3

Response

Person subject to the Notice must measure TDI either at the vicinity of the facility or from stacks, storage tanks and fugitive emissions. Demonstrating compliance through either option meets the risk management objective for TDI.

Comment

It is necessary to establish an acceptable minimum frequency of sampling of TDI in ambient air due to high cost of conducting sampling & analysis for this type of pollutant.

Response

Facilities are not being asked to prepare a monitoring program. The intention of including factors 1 to 4 as factors to consider when developing the P2 plan is to have an estimation of yearly emissions based on measured data during normal conditions of operations. The sampling method is determined by standards quoted under the substance-specific factors to consider 3(1)4a to 3(1)4d listed in the Notice.

Comment

Option 1 (or Factor 4(a)) requires testing and sampling of TDI in ambient air at or beyond facility site boundaries at locations that ensure maximum exposure at ground level. It is suggested that the requirement to sample and measure TDI beyond the facility site boundaries not appear in the Notice because property rights must be respected. Alternatively, it is requested that dispersion modelling be permitted as a method for estimating concentrations at or beyond facility site boundaries.Footnote 3

Response

Facilities subject to the Notice can choose between two possible approaches for sampling and testing of TDI: either through testing of TDI releases in stack or through testing of TDI concentration at or beyond the facility's site boundaries. If one approach is not possible for any reason, the other one should be chosen.

AIRMOD is the only air dispersion model accepted to show compliance with the emissions threshold for TDI of 0.2 µg/m3 in 24 hours.

Comments

1) Questions whether the statement "the intention of including factors 4(a) to 4(d) as factors to consider when developing the P2 plan is to have a snapshot of emissions during normal conditions of operations" and section 4(a) – 4(d) of Table 1, Column 7 in the Notice offer enough specificity to make the measurements and analysis meaningful from the perspective of pollution prevention. The measurement and analysis protocol must be detailed enough to ensure that average or mean and extreme pollution levels can be calculated and to ensure comparability among facilities.Footnote 3

2) Factor 5 of the Notice appears not to provide enough specificity concerning how the amount of TDI released to air or the concentration of TDI at or beyond the facility site boundary is to be calculated. The methods need to be specified to know whether it is necessary for a facility to reduce its TDI emissions, and ensure comparability.Footnote 3

Response

Factors 3(1)4a-3(1)4d, indicate the standard methods for sampling and analysis of TDI to be used by persons subject to the notice to verify whether or not their emissions of TDI are below the TDI emissions thresholds set out in factor 3(1)5.

Comment

A uniform testing methodology for detecting TDI releases is not mandated and may not be comparable between facilities. The best possible detection methods should be required for ambient air monitoring, both in the plant and in the vicinity of the plant.Footnote 3

Response

Persons subject to the P2 Planning Notice are given two options for detecting TDI releases: they can either measure TDI in ambient air at or beyond facility boundaries, or measure TDI releases from stacks, storage tanks, and fugitive emissions. Standard sampling and testing methods indicated in the Notice for each option should be taken into account.

Comment

Emissions testing is done during normal conditions of operation. However, the leaks in storage tanks or piping that may concentrate the chemical in hard to reach areas of the plant might be missed, as well as the emissions via vents on off hours. A routine and continuous monitoring program, during both normal conditions and down time, should be required.Footnote 3

Response

If the person subject to the Notice chooses to measure TDI releases from the facility, then TDI releases from the stacks, storage tanks, and fugitive emissions must be measured during normal conditions of operation or estimated (emission estimation is only accepted for the two latter). Most TDI emissions occur during normal hours of operation, while foam is being manufactured; in contrast, TDI releases during down time are expected to be insignificant. 

Issue: Facilities emitting less than the de minimis threshold

Comment

Facilities that emit less than 100 kg of TDI per year should not be subject to any P2 Planning requirements.

Response

All the facilities subject to the Notice must consider all the factors to consider outlined for the sector in Section 4 of the Notice as well as the substance-specific factors to consider in 3(1)1 to 3(1)4 in the Table of the Notice required to assess whether they need to consider the other factors when developing a P2 plan.

Comment

Agrees that facilities emitting less than threshold are exempted from a requirement to consider BATEA.

Response

The facilities emitting less than the threshold are considered to be already at BATEA.

Comment

If a facility qualifies under P2 because they meet the inclusion criteria (i.e. store more than 100 kg of TDI on-site), but their emissions are less than 100 kg annually, then they should be exempt from P2 planning and reporting. If the emission numbers increase to more than 100 kg then they will meet the planning requirement of P2. To make up a P2 plan when emissions are less than the 100 kg/yr emission threshold, and then to submit periodic reports on the implementation of that plan is not useful or necessary and to some degree a duplication of effort.Footnote 3

Response

All persons or class of persons required to prepare and implement a plan are identified under Section 2 of the Notice and will be subject to all the reporting requirements set out in the Notice. Therefore, all persons subject to the Notice must submit all the required reporting Schedules, even if the facilities are under the emission threshold.

Issue: Definition of the de minimis threshold

Comments

1) The technical and scientific basis for the selection of 100 kg of TDI/yr should be justified. The de minimis threshold for facilities should be determined on the basis for the toxicity declaration as reflected on the Risk Assessment through critical threshold values (CTVs). An action of this type would effectively deal with the concern that risk management addresses the cause of toxicity. The assessment and risk management identifies CTVs for chronic non-neoplastic effects via inhalation in humans as 14 µg/m3 and critical effect levels for short-term to sub-chronic non-neoplastic effects via inhalation in the general population as 70-140 µg/m3. With this information should an emission threshold be calculated and considered – with a reasonable application of a Margin of Safety, maintaining due consideration for a practical value.

2) It would be more appropriate to set the de minimis thresholds at a level greater than 100 kg of TDI emissions per year and a TDI concentration greater than 0.2 µg/m3 in 24 hours, based on the science as reflected in the risk assessment for TDI.Footnote 3

Response

The de minimis threshold was estimated based on Technical Instructions on Air Quality Control - TA LuftFootnote 4 emission limit for carcinogenic substance (0.1 kg/h), assuming that the average TDI emissions duration is between 3 and 4 h/day (batch process), and assuming that a plant works 292 d/y (that is 80% of a calendar year). Based on these considerations:

TDI threshold = 0.1 kg of TDI/h x (3 to 4) h average of TDI emissions/d x 80% x 365 d/y = 87.6 to 116.8 kg of TDI/y = 102.2 ~ 100 kg of TDI/y

Increasing the assumed average TDI emission duration will increase the TDI threshold

Technical Instructions on Air Quality Control – TA Luft are a regulation used in several European countries to protect the public and the environment against harmful effects of air pollution.

Comment

What threshold is expected for individual reporting classifications i.e. process, stack, fugitives? How low does an organization have to look, whether that is in concentration or total mass? What is reasonable for technology whether that be analytical or facility process? The P2 plan should be based on technological BATEA, and risk factor analysis that suggests concentrations or mass quantities for reporting.

Response

Threshold is based on total TDI emissions from the facility.

Comment

Lower or no thresholds should be used for TDI emissions. This would ensure that most or all industries using TDI would be required to report on their efforts to manage TDI through this pollution prevention plan.Footnote 3

Response

All facilities within the sector that purchase or use 100 kg/year or more of TDI are subject to the Notice.

Comment

The emissions threshold of 100 kg/yr of TDI should be the trigger for being subject to the Notice rather than the use threshold of 100 kg/yr of TDI.Footnote 3

Response

Environment Canada requires actual measurements to determine whether further emissions reduction is necessary.

Issue: National Pollutant Release Inventory

Comments

1) It is quite likely that TDI emission numbers from different companies being reported under NPRI are not comparable with respect to the models being used to calculate the numbers. A study of the methods being employed to calculate and report these emissions would be necessary, before the question of their significance could be answered.Footnote 3

2) Data collected through NPRI would suggest that the current permissible levels for TDI are sufficient to protect health and the environment.Footnote 3

Response

The P2 Planning Notice requires actual measurement of TDI emissions from stacks to compare TDI emissions reported by facilities subject to the Notice, whereas NPRI allows facilities to use estimation methods.

Reporting thresholds/requirements under NPRI are often significantly different from those for P2 Planning Notices.

Issue: Best Available Techniques Economically Achievable

Comments

1) It is positive and supported that the operators of facilities will have the flexibility for implementing Best Available Techniques Economically Achievable (BATEA).

There are different definitions of BATEA. Pollution control devices are not always available to prevent or control releases, nor are they equally available to all facilities. Therefore, the Notice should expressly state that best available "techniques" is defined to include things beyond control technologies, such as equipment or process modifications, as well as good operating practices or staff training.

2) Facilities should develop and define and ultimately have the final decision on what constitutes BATEA.

Response

P2 Planning Notices allow flexibility for persons subject to the Notice to develop a P2 plan in a manner that is best suitable for their facility, as long as it meets the requirements set out in the Notice.

Comments

1) It is very important to understand that according to BATNEEC, the question is not what individual facilities can afford, but at what point prevention and control techniques begin to cost a great deal as compared to the additional degree of protection achieved. Person supports that the Government of Canada uses the BATNEEC concept in its definition of BATEA because it could lead to sector-wide discussion and agreement on what techniques are "not economically excessive". Otherwise, facilities could claim that they can't afford techniques that will allow them to lower their pollution to satisfactory levels, and the environment and human health could be the losers.Footnote 3

2) Recommended that the definition of BATEA be removed from the Proposed P2 Planning Notice. In Canada BATEA has the concept of what a facility can afford; as written, the BATEA as extended by BATNEEC in the draft does not. Recommended that BATEA be the classical Canadian definition, but be recognized to include all "techniques" and then the facilities can determine what is BATEA based on their expertise, facility specific knowledge and economic position.Footnote 3

Response

Application of BATNEEC (Best Available Techniques Not Entailing Excessive Costs) in Canada will be very difficult because it makes it necessary to obtain a sector-wide agreement on the meaning of "not economically excessive" while facilities will have to demonstrate that they are at BATEA.

BATNEEC concept was removed from the Notice.

Comment

If the government is not going to develop a regulatory "model" around BATEA, then there should at least be guidelines or a framework that companies can use to reduce subjectivity. Who will approve a submitted BATEA, and what criteria will be used to "approve" or "reject" it? The government should develop a cost/benefit analysis to determine how much is deemed "affordable" and what control technologies are deemed satisfactory.Footnote 3

Response

P2 Planning Notices do not prescribe the content of the plan nor technologies that must be used to meet the requirements of the Notice. Each company is in a better position to determine pollution prevention activities or pollution control technologies affordable to their particular situation from both, the economic and environmental regulatory control point of view.

P2 Planning Notices allow flexibility for persons subject to the Notice to develop a P2 plan in a manner that is best suitable for the facility, as long as it meets the requirements set out in the Notice.

Comment

Recommended that the government undertake a study with all stakeholders to indentify meaningful available control technologies, versus what is thought to be available.Footnote 3

Response

A study commissioned by Environment Canada compiled information on available control technologies for TDI. This study was shared with TDI interested stakeholders on April 15, 2010.

Comments

1) The industry may be able to show that the relative costs of applying BAT would be excessive compared with the degree of environmental protection achieved. However, if it is determined that TDI has low-dose effects, the most economically achievable techniques may not be good enough to protect human health. The criteria for pollution prevention should be based on the toxicity of the substance not economics. Also, it may be necessary to identify new techniques as what is currently available may not be suitable.Footnote 3

2) There may be situations where the best available practice is not economically achievable by an industry that has outdated equipment. In this case, an application for exemption should not apply as it is environmental protection and human health that supersedes the financial wellbeing of an industry.Footnote 3

Response

In developing regulatory instruments, Environment Canada and Health Canada's goal is to avoid negative impact on Canadian economy while assuring the protection of the environment and human health.

P2 Planning Notices do not prescribe the content of the plan nor technologies that must be used to meet the requirements of the Notice.

Issue: Factors to be considered by facilities that emit more than a de minimis amount of toluene diisocyanates per year [factors (5a) to (5m)]

Comments

1) The factors (5a) to (5m) is a large number of documents to consider when developing a P2 plan, and not all are relevant to the different facilities; therefore, the proposed Notice should make clear that persons subject to the Notice need only consider the listed sources that are applicable or where appropriate.

2) Persons subject to the Notice need only consider the listed sources in factors (5a) to (5j) where appropriate. As such, facility supports Environment Canada's decision to allow persons to submit a written request for waiver of the requirement to consider a factor or factors.Footnote 3

Response

The factors to consider when developing a P2 plan are defined in such a way that if the persons subject to the Notice consider that a given factor to consider is not applicable/relevant to their facility, they can request to waive that factor. If a more appropriate method exists, it can be used, but a rationale for that must be provided. They must submit Schedule 2 with a rationale for waiving a factor to consider.

Comment

If the government is going to include documents listed in factors to consider (5a) to (5m) in a legal instrument, are they still valid? Are they available to all the stakeholders from the public domain? Is there a mechanism to delete them if the status changes, once the Notice becomes final?

Response

Yes, these documents are available to all stakeholders from public domain. Environment Canada will ensure that the documents referenced in the Notice remain valid and available. Otherwise the Notice will be amended accordingly.

Comments

1) Contrary to what factor (5a) indicates, wastewater should not be considered as a source of release of TDI in air because TDI reacts quickly with water to form urea inert polymer.

2) In the working document, factor 5(a) refers to wastewater sources, but the draft Proposed Notice does not. What is the reason for this change?Footnote 3

Response

Comment was considered in the draft of the proposed P2 Planning Notice. Reference to wastewater was removed.

Comment

Many of the factors listed in the Notice are not "actionable", that is, there are no specific actions that facilities that are preparing P2 plans could take in light of these factors.

Suggested using "Context" or "Background Information" as a title for these non-actionable items instead of "Factors to Consider".Footnote 3

Response

Each Notice lists the factors to be considered for the preparation of a P2 plan. These are the issues or activities that must be addressed in preparing the P2 plan. They may include the risk management objective, current P2 practices, and available technologies. A description of how each factor was addressed when preparing the P2 plan is required in the declarations, and when required, in the interim progress reports.

Issue: Alternatives for toluene diisocyanates

Comment

There is no ready replacement/substitution for TDI for the manufacturing of polyurethane foam.Footnote 3

Response

Material or feedstock substitution is only one of the many P2 methods and techniques/technologies available to reduce releases of TDI.

P2 Planning Notices do not prescribe the content of the plan. P2 Planning Notices allow flexibility for persons subject to the Notice to develop a P2 plan in a manner that is best suitable for the facility, as long as it meets the requirements set out in the Notice.

Comment

It is not clear whether the Notice is the only risk management approach being contemplated at this point. If so, there is a missed opportunity to investigate alternatives to TDI.Footnote 3

Response

A sector-based Pollution Prevention (P2) Planning Notice is considered to be the most appropriate risk management instrument for TDI and it is the only instrument that is being developed to manage TDI releases from the Polyurethane and Other Foam Sector (except Polystyrene). 

P2 Planning Notices allow flexibility for persons subject to the Notice to develop a P2 plan in a manner that is best suitable for the facility, as long as it meets the requirements set out in the Notice. It is up to each facility to research alternatives to TDI as a means to reduce TDI emissions.

Issue: Waste management and off-site transfer

Comment

Questions about the ultimate fate of the substance captured by the abatement technologies. How much farther ahead are we with respect to pollution prevention if used filters, etc. are disposed of by land filling or other methods?Footnote 3

Response

TDI abatement technologies are well known and also described under the National Emissions Standards for Hazardous Air Pollutants for Flexible Polyurethane Foam Production.

Comment

Off-site transfer of TDI containers needs to be monitored. Tracking all possible releases should be required as part of the risk management plan.Footnote 3

Response

Reporting Schedules for the P2 Planning Notice for TDI require facilities subject to the P2 Planning Notice to provide information on off-site transfer of the substance including containers for the substance.

Issue: Toluene diisocyanates reactions in ambient air

Comment

TDI released might be mixed with other toxic chemicals in the air resulting in a toxic mixture that is injurious to health and the environment. The industry should not be treated as a separate entity, but as a contributor to the pollution of the ambient air. In such cases, stricter provisions for reducing pollution may be required, as well as special plant design including attention to exhaust vent design and location.Footnote 3

Response

TDI releases must be controlled regardless of the possibility of a reaction. The intention of the P2 Planning Notice is to avoid or reduce emissions to the environment of the specified substances on Schedule 1 of CEPA 1999, and by doing this, the possibility for further reaction of TDI with other toxic chemicals in the air is also avoided or reduced. TDI releases to the environment correspond to non-reacted TDI.

Issue: Required monitoring

Comment

There will be cost issues and logistical issues with the required monitoring, either stack or at the fence line when annual usage of TDI is greater than 100 kg/yr. The P2 Planning Notice could be flexible in meeting this requirement; for example by recognizing "quality" modelling as that was done for permitting.Footnote 3

Response

Measurement of TDI releases from the stacks and estimation of TDI releases from storage tanks and fugitive emissions are required to run air dispersion models recommended to show compliance with point of impingement in Ontario. Given this fact, facilities subject to the Notice can avoid doing the air dispersion modelling and use measurements to show compliance with the emissions threshold of 100 kg/yr.

Issue: Using Ontario Ministry of the Environment documents and standards

Comment

Factor (5b) in the working document establishes the Ontario MOE Point of Impingement Guidelines and Ambient Air Quality Criteria (AAQC) as the national standard, which may force facilities outside of Ontario to be out of compliance. It is suggested that if there are local or provincial standards and a facility is in compliance, this should be sufficient.

The government of Canada should refrain from imposing extraterritorial standards across borders. It is recommended factor (5b) also overtly allow a facility to recognize the local or provincial standards as equivalent.

Response

Factor (5b) in the working document related to the Ontario AAQC has been deleted from the list of substance-specific factors to consider in the proposed P2 Planning Notice.

Comment

Suggested that the Ontario Isocyanate Regulations (Designated Substance Regulation) be used as a "federal" model.Footnote 3

Response

The Ontario Regulation 842 is an occupational health and safety regulation which only applies to workers at facilities that produce, use, handle or store isocyanates and at which the worker is likely to inhale isocyanates or where isocyanates may come into contact with the worker.

Footnotes

Footnote 3

Comment on draft Proposed P2 Planning Notice received from Consultation on TDI on March 22, 2010.

Return to first footnote 3 referrer

Footnote 4

Federal Ministry for the Environment, Nature Conservation and Nuclear Safety. Technical Instructions on Air Quality Control – TA Luft, Germany, 2002.

Return to footnote 4 referrer

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