Canada: The End Of A Long And Winding Road: Federal Ban On Asbestos Now In Force

Last Updated: March 28 2019
Article by Selina Lee-Andersen

Most Read Contributor in Canada, April 2019

On December 30, 2018, the federal Prohibition of Asbestos and Products Containing Asbestos Regulations (Regulations) came into force, which prohibit the import, sale and use of asbestos, as well as the manufacture, import, sale and use of products containing asbestos, subject to certain exceptions. The Regulations are published under the authority of the Canadian Environmental Protection Act, 1999 (CEPA 1999). Since the Regulations are more stringent than existing regulatory controls under the Asbestos Products Regulations made under the Canada Consumer Product Safety Act, the Asbestos Products Regulations were repealed when the Regulations came into force. In addition, the Export of Substances on the Export Control List Regulations have been amended to list all forms of asbestos on the Export Control List (Schedule 3 to CEPA 1999). These amendments support the Regulations by adding new provisions to prohibit the export of asbestos and products containing asbestos, subject to the exemptions described in further detail below. They also ensure that Canada is compliant with its export obligations under the Rotterdam Convention, which is a global treaty designed to protect human health and the environment by establishing a "prior informed consent" procedure for listed chemicals. All forms of asbestos are listed under the Rotterdam Convention with the exception of chrysotile asbestos, which will be considered for inclusion by parties to the Rotterdam Convention in 2019. Through this procedure, parties must not export a substance to another party that has stated it does not consent to the import. Importing parties may also give their consent to import with conditions that exporting parties must meet.

History of Asbestos in Canada

Asbestos is the commercial term used to describe a set of six naturally occurring silicate minerals (chrysotile, amosite, crocidolite, anthophyllite, tremolite, and actinolite). Asbestos is currently listed in the List of Toxic Substances found in Schedule 1 to CEPA 1999; the listing covers all six types of asbestos. Given the performance capabilities of asbestos — it is resistant to high temperatures, chemical degradation and wear, and insulates against heat and electricity — it was used widely before asbestos exposure was known to pose health risks. Prior to 1990, asbestos was used primarily for insulating buildings and homes against cold weather and noise, as well as for fireproofing. Asbestos has also been used in industrial products such as:

  • cement and plaster;
  • industrial furnaces and heating systems;
  • building insulation;
  • floor and ceiling tiles;
  • house siding;
  • car and truck brake pads; and
  • vehicle transmission components, such as clutches.

There is currently no mining of asbestos in Canada. The last two remaining asbestos mines, both located in Québec, ceased operations in 2011.

Asbestos is a mineral that can be crumbled, pulverized or powdered when it is dry (friable), which can result in small fibres and clumps of fibres being released into the air. According to Health Canada, the inhalation of airborne asbestos fibres poses a health concern and can cause:

  • asbestosis (a disease that involves scarring of the lungs and makes breathing difficult);
  • mesothelioma (cancer of the lining of the chest or stomach cavity); or
  • lung cancer.

A number of factors may determine how exposure to asbestos will affect an individual (including the dose, duration, source, type of asbestos, and pre-existing health condition or smoking), and it can take decades after the first exposure to asbestos fibres for the related condition to develop.

In the update to the five occupational health and safety regulations under the Canada Labour Code, Part II (including the Canada Occupational Health and Safety Regulations (COHSR), On Board Trains Occupational Health and Safety Regulations, Oil and Gas Occupational Safety and Health Regulations, Maritime Occupational Health and Safety Regulations, and Aviation Occupational Health and Safety Regulations), the occupational exposure limit (OEL) for chrysotile asbestos was reduced from one fibre per cubic centimetre (f/cc) to 0.1 f/cc and the requirement of an asbestos exposure management program was added. Employment and Social Development Canada has produced a Technical Guideline to Asbestos Exposure Management Programs, which provides guidance on asbestos issues relating to Part X of the COHSR and to relevant provisions in other Regulations pursuant to the Canada Labour Code, Part II. Each province and territory also has occupational health and safety legislation addressing risks from exposure to asbestos.

Updated Approach to Asbestos Management

In December 2016, the federal government announced a governmentwide strategy to manage asbestos, including the development of new regulations under CEPA 1999 to prohibit the manufacture, use, import and export of asbestos and products containing asbestos by 2018. These new regulations would seek to prohibit all future activities respecting asbestos and products containing asbestos, including, the manufacture, use, sale, offer for sale, import and export. There was a 30-day consultation period associated with this publication. Comments received on this publication were considered in the development of the consultation document. To that end, a notice was issued in the Canada Gazette, Part I: Vol. 150, No. 51 - December 17, 2016 under s. 71 of CEPA 1999. The notice applied to all six types of asbestos: crocidolite asbestos, chrysotile asbestos, amosite asbestos, actinolite asbestos, anthophyllite asbestos and tremolite asbestos. Every person to whom the notice applied was required to comply no later than January 18, 2017. The purpose of the s. 71 notice was to obtain information on the manufacture, import, export and use of asbestos and products containing asbestos for the 2013 to 2015 calendar years, as well as socioeconomic information. This data was considered in the development of the regulations and will ensure that future decision-making is based on the best available information.

In April 2017, Health Canada and Environment and Climate Change Canada (ECCC) published a consultation document on the proposed regulatory approach to prohibit asbestos and products containing asbestos. Comments and information received in response to the consultation document were considered in the development of the proposed regulations. The proposed regulations were published in January 2018 in the Canada Gazette, Part I for a 75-day public comment period. Comments and information received during the comment period were considered in the development of the final regulations, and are summarized in the Regulatory Impact Analysis Statement.

Key Elements of the Regulations

The Regulations prohibit the import, sale and use of asbestos and the manufacture, import, sale and use of products containing asbestos, with certain exceptions. The Regulations do not prohibit mining activities where asbestos may be found, nor do the Regulations prohibit the use and sale of asbestos and products containing asbestos that were installed prior to the coming into force of the Regulations (such as asbestos and products containing asbestos installed in buildings, civil engineering works, vehicles, ships, and airplanes). Also, the Regulations do not apply to pest control products, which are regulated under the Pest Control Products Act. Further, the Regulations do not apply to mining residues except for the following activities, which are prohibited:

  • sale and use of asbestos mining residues for construction and landscaping activities, unless authorized by the province in which the construction or landscaping is to occur; and
  • use of asbestos mining residues to manufacture a product that contains asbestos.

The Regulations specifically exclude the following:

  • a time-limited exclusion for the import and use of processed asbestos fibres in a chlor-alkali facility that was in operation on the day on which the Regulations came into force, until January 1, 2030;
  • possession of asbestos or products containing asbestos being transferred for disposal;
  • reuse of asbestos in the restoration of asbestos mining sites or in road infrastructure, if that asbestos was integrated into road infrastructure before the Regulations came into force;
  • the import, sale or use of military equipment that was serviced with a product containing asbestos if the product was used to service the military equipment while it was outside Canada for the purposes of a military operation and there was no technically or economically feasible asbestos-free alternative available at that time;
  • the import, sale or use of products containing asbestos to service military equipment before January 1, 2023, if there is no technically or economically feasible asbestos-free alternative available when the product is imported, sold or used;
  • the import, sale or use of a product containing asbestos to service equipment of a nuclear facility before January 1, 2023, if there is no technically or economically feasible asbestos-free alternative available when the product is imported, sold or used;
  • asbestos or products containing asbestos to be displayed in a museum; and
  • asbestos for use in a laboratory (for analysis, scientific research or as a laboratory analytical standard). It should be noted that these excluded activities are subject to notification, reporting and record-keeping requirements. In addition, the Regulations include a requirement for chlor-alkali facilities to prepare and implement asbestos management plans, as well as labelling requirements for any asbestos imported for use in diaphragms at chlor-alkali facilities during the phase-out period.

The Regulations include permit provisions for unforeseen circumstances where asbestos, or products containing asbestos, is required to protect the environment or human health and where there is no technically feasible alternative. Any permit issued is valid for one year and the permit holder is subject to reporting requirements.

Furthermore, an asbestos management plan must be prepared and implemented by permit holders and by any person carrying out an excluded activity (such as the import and use of asbestos in the production of chlor-alkali, in museum displays, and in laboratories).

Starting January 1, 2023, permit provisions in the Regulations will apply to the import and use of replacement parts containing asbestos to service equipment in a nuclear facility and military equipment where no technically or economically feasible asbestos-free alternative is available. Permits issued will be valid for three years and the permit holder will be subject to reporting requirements.

Amendments to the Export Control List

Related amendments to the Export of Substances on the Export Control List Regulations (ESECLR) have been made, which prohibit the export of all forms of asbestos, subject to the following exceptions:

  • asbestos that is, or is contained in, a hazardous waste or hazardous recyclable material regulated by the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations;
  • asbestos contained in a product that is a personal or household effect intended for personal use;
  • asbestos contained in military equipment;
  • asbestos, whether or not it is contained in a product, exported for the purpose of disposal;
  • asbestos contained in a product that was used prior to the coming into force of the amendments;
  • asbestos contained in a product exported to service military equipment during a foreign military operation, when no technically or economically feasible asbestos-free alternative is available;
  • asbestos contained in a product in amounts that are not greater than trace amounts;
  • asbestos contained in a raw material extracted from the ground and exported to manufacture a consumer product that contains asbestos in amounts that are not greater than trace amounts;
  • asbestos contained in a raw material extracted from the ground and exported to manufacture a product that is not a consumer product;
  • asbestos contained in a raw material extracted from the ground and exported for a purpose other than manufacturing a product, if the raw material will not be sold as a consumer product;
  • asbestos, whether or not it is contained in a product, for use in a laboratory (for analysis, scientific research or as a laboratory analytical standard); and
  • asbestos, whether or not it is contained in a product, for display in a museum.

All exports of substances listed in the Export Control List (which includes all forms of asbestos) require a prior notification of export. To meet international obligations under the Rotterdam Convention, exports allowed by the above exemptions may require a permit and be subject to requirements respecting labelling, record keeping, and inclusion of safety data sheets with the exports.

Tracking Outcomes

ECCC has defined quantitative performance indicators as part of the implementation strategy for the Regulations and the ESECLR. ECCC will track the outcome for each quantitative performance indicator through reporting requirements and enforcement activities. The performance of the Regulations and ESECLR will be assessed annually to allow ECCC to evaluate the progress towards program objectives.

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