Asbestos Use: New Obligation to Provide Information

In support of the federal government’s commitment to ban asbestos by 2018, the Department of the Environment recently issued a formal Notice requiring companies and other persons who manufactured, imported, exported or used more than five kilograms of asbestos in 2013, 2014 or 2015 to provide to the Minister of the Environment certain information by January 18, 2017 at 3 p.m. EST.¹ This information is expected to inform the government’s decision making relating to the asbestos ban.

What You Need To Know

• Non-compliance with the Notice could result in a prosecution and penalties under the Canadian Environmental Protection Act, 1999.
• The Notice requires potentially sensitive information to be provided to the federal government, including:
• the quantity of each type of asbestos manufactured, imported, exported or used in 2013, 2014 or 2015;
• if the obligation is triggered for 2015, the description and common or generic name of the final goods containing the asbestos and the name of the supplier of the asbestos;
• whether the manufacture, import, export or use of asbestos has been phased out, or whether there are plans for such a phase-out; and
• whether there has been substitution or  are plans to substitute asbestos with an alternative substance, and if so, what substance.
• The Minister may extend the January 18 deadline if a written request for an extension is submitted beforehand.
• Persons not subject to the Notice may participate in the development of the asbestos regulatory regime, including by submitting information to the Minister of the Environment and the Minister of Health.

Other Key Takeaways

Triggers for Obligations

The information provision obligations cover all six types of asbestos—actinolite, amosite (also known as brown), anthophyllite, chrysotile, crocidolite and tremolite asbestos. These obligations are triggered by any person, who during any calendar year from 2013 to (and including in) 2015,

• manufactured a total quantity greater than five kilograms of asbestos; or
• imported or exported a total quantity greater than five kilograms of asbestos whether alone or at a concentration greater than 0.1% by weight in a mixture, product or manufactured item; or
• used a total quantity greater than five kilograms of asbestos to manufacture a mixture, product or manufactured item.

The Notice does not apply to asbestos that is "in transit" (i.e., passing) through Canada.

Information to Be Provided

While some of the requirements depend on the circumstances, the basic information to be provided includes:

• the year, as well as the type and quantity of asbestos manufactured, imported, exported or used;
• for 2015, identifying which of a number of specified ranges for the number of employees and gross annual revenue in Canada apply;
• whether there has been a phase-out, or details of plans to phase out, the manufacture, import, export or use of asbestos;
• whether there has been a substitute, or plans to substitute, asbestos with an alternative substance and if so, to specify the name of the alternative substance.

If a company subject to the Notice owns more than one facility, a single response must be submitted, amalgamating the information from all of the company’s facilities.

Responses to the Notice must be submitted using Environment and Climate Change Canada’s Single Window at https://ec.ss.ec.gc.ca/.

Confidentiality

Any person who provides information in response to the Notice may submit, with the information, a written request that the information (or part of it) be treated as confidential. In addition, the rationale for the sensitivity of the information should be provided. While there is a general obligation on the Minister not to disclose any information in respect of a valid request for confidentiality, there are a number of significant exceptions to this obligation.²

Time Extension

The Minister of the Environment may extend the time within which a person must comply with the Notice. A person seeking such an extension must make a written request prior to the January 18 deadline.

Additional Information

For further information, please see the Notice with respect to asbestos and the Notice of intent to develop regulations respecting asbestos at Government Notices.

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¹ Canada Gazette, Vol. 150, No. 51 — December 17, 2016, Part I.

¹ See, for example, Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, ss. 313-317.