Enforcement of PCB Regulations ramping up

Environment Canada is ramping up its enforcement of the federal PCB regulations. Surprisingly, they are finding illegal PCBs in municipal facilities. This could have serious consequences for municipalities, and for the individuals in charge.

Polychlorinated biphenyls (PCBs) used to be very popular in a wide range of industrial and electrical applications. They were excellent fire resistant coolants and insulating fluids in transformers, capacitors, cables, light ballasts, bridge bearings, and magnets, among many other things. Unfortunately, they turned out to be persistent and toxic to humans and the environment. PCBs can:

?? Travel long distances and deposit far away from their sources of release

?? Accumulate in the fatty tissues of living organisms

?? Cause complications like cancer and birth defects

?? Potentially disrupt immune and reproductive systems and even diminish intelligence.

The Stockholm Convention on Persistent Organic Pollutants is an international agreement to move away from the production and use of persistent organic pollutants, such as PCBs, towards safer alternatives and to eventually eliminate their release. Canada, as a party to the Convention, has targeted PCBs for virtual elimination.

Until 2008, Canadian law permitted owners of all PCB-containing equipment to keep using that equipment until the end of its useful life. Not everyone noticed when the rules changed.

Amended PCB Regulations under the Canadian Environmental Protection Act, 1999 (CEPA), came into force on September 5, 2008. The new regulations set phase out dates for in –use PCB equipment, as well as rigorous labelling and reporting requirements. They also require prompt and proper disposal of PCB equipment, once it is no longer in active use.

2009 was an important deadline

Three groups of equipment became illegal on December 31, 2009. (It was possible to apply for an extension to 2014, but the deadline for these applications has long passed):

  • With few exceptions, everything containing PCBs at concentrations over 500 milligrams per kilogram (mg/kg) had to be taken out of use, and properly destroyed, by December 31, 2009.
  • Even stricter standards apply at, or within 100 metres of, drinking water treatment plants, schools or child care facilities, hospitals or senior citizens’ care facilities. For these sites, almost everything containing over 50 mg/kg PCB became illegal December 31, 2009.
  • Every other kind of PCB equipment over 50 mg/kg also became illegal on December 31, 2009, unless it fits one of the exceptions (below).

It has been illegal to store PCBs or products containing them in any concentration (with the exception of light ballasts) in drinking water treatment plants, schools or child care facilities, hospitals or senior citizens’ care facilities, or within 100 metres of these, since September 5, 2009.

What can you use after 2009?

Even sensitive facilities can keep using light ballasts and pole-top electrical transformers (and auxiliary equipment) until December 31, 2025, if they were in use on September 5, 2008.

Other than in these sensitive facilities, equipment such as capacitors and transformers, containing between 50 and 500 mg/kg PCB, may continue to be used until December 31, 2025, if it was in use on September 5, 2008.

A few specialized PCB products have no end-of-use date requirements, and may be used until the end of their useful life. This includes cables, pipelines, fusion sealed capacitors and related equipment (regardless of PCB concentration). As for electrical capacitors, light ballasts, electrical transformers and their auxiliary electrical equipment, heat transfer equipment, hydraulic equipment, vapour diffusion pumps and bridge bearings: they can be used until the end of their useful life, for their original design purpose, if they definitely contain less than 50 mg/kg PCB, and were in use on September 5, 2008.

Reporting requirements

Since 2009, owners of PCB-containing equipment have been required to submit comprehensive annual reports of all PCBs that are in use, stored, sent to an authorized facility (e.g., for destruction) or destroyed. A separate report must be submitted for equipment and liquids that: have an end-of-use date of December 31, 2009; have been granted an extension to this deadline – i.e., up to December 31, 2014; and have an end-of-use date of December 31 2025.

These reports must be complete. The onus is on each owner to find and properly characterize PCB equipment. Some municipalities have been surprised to find that they still had not discovered all their PCB capacitors; even the odd transformer had somehow gone unnoticed. Not all municipalities have organized their records so that they can immediately tell which equipment is within 100 metres of a sensitive location.

New penalty regime under CEPA

It is a serious offence under CEPA to contravene the PCB Regulations, eg by filing false or misleading reports , failing to file required reports, or using PCB equipment after the deadline. These offences apply to the municipal corporation itself, but also to any individual with charge, management and control of the relevant facilities.

New penalty and sentencing provisions for CEPA offences came into effect June 22, 2012, and would apply to any breach of the Act after that date. CEPA now recognizes different types of offences, with more serious ones being subject to mandatory minimum fines and much higher maximum fines. Large corporations (which would include any municipalities with annual revenue over $5 million) are subject to particularly high penalties. Individuals could go to jail. Prosecutions under the new CEPA penalty regime are likely to yield higher fines than in the past.

is Environment Canada paying attention?

Environment Canada reports that the PCB Regulations are one of its National Enforcement Plan priorities. Its 2011 CEPA Annual Report describes PCB enforcement as 551 inspections, 5 investigations, and the following enforcement measures: written directives (1), written warnings (39), and Environmental Protection Compliance Orders (3). More warnings and Environmental Protection Compliance Orders are still being issued, though there haven’t yet been any convictions.

To minimize risk of prosecution, municipalities should thoroughly inventory all equipment that might contain PCBs, to ensure that they are not using or storing prohibited equipment. As well, it is critical that PCB inventories be accurate. Are you sure that you know where all your PCBs are?

Thank you to Jackie Campbell for assistance in writing this article, which was originally published in Municipal World.