Polychlorinated biphenyls (“PCBs”) are a toxic, bio-accumulative, and persistent class of substances, use of which has been prohibited or restricted in Canada since 1977. Although end of use has been a stated priority of federal Ministers of the Environment since the late 1980s, until recently regulatory schemes have failed to actually incentivize or require end of use. In signing the Persistent Organic Pollutants Protocol, Canada assumed a binding commitment to destroy all PCBs of defined concentrations by deadlines as early as 2010.
The new PCB Regulations (the “Regulations”) were proposed in 2006 to address Canada’s international obligations and to implement a comprehensive PCB regulatory framework. While the Regulations are broadly applicable to all PCBs and equipment containing PCBs ( “Equipment”), they are inapplicable in limited exceptions, primarily where the subject matter is covered by other regulatory schemes such as the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations.
The Regulations describe: Use (Part I), Storage (Part II), and Labelling and Reporting Requirements (Part III) for PCBs and Equipment, however the critical elements of the Regulations are the end of use deadlines. These deadlines refer to the date after which the use of certain PCBs and Equipment is prohibited (“End of Use”).
While the Regulations have been in force for a year, renewed attention is timely as December 31, 2009 is the first in the series of End of Use deadlines. End of Use dates for certain Equipment, such as electrical capacitors and electromagnets (the “Designated Equipment”), are prescribed and depend on the concentration of PCBs in that Equipment. Acceptable methods for determining concentration are described in the Regulations.
December 31, 2009 is the earliest End of Use deadline for Designated Equipment where the concentration is 500 mg/kg or higher. This date is also the End of Use deadline for Designated Equipment at higher concentrations (between 50 mg/kg - 500 mg/kg) if located within 100 m of a hospital or school, or near other sensitive locations.
The distant date of December 31, 2025 is the End of Use deadline for Designated Equipment with concentrations between 50 - 500 mg/kg, if not proximate to a sensitive location. Apart from the set deadlines, Equipment voluntarily taken out of service has variable End of Use deadlines.
The Minister of the Environment may postpone End of Use deadlines if certain conditions are met, but extended deadlines will be to dates no later than December 31, 2014.
Certain items containing PCBs will not be subject to End of Use deadlines, including cables, pipelines remaining in place, and electrical capacitors used in communication or control equipment.