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Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations

HPA Section 12 - Application

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Application

12. This Part does not apply in respect of the sale or importation of any

1. explosive within the meaning of the Explosives Act;
2. cosmetic, device, drug or food within the meaning of the Food and Drugs Act;
3. control product within the meaning of the Pest Control Products Act;
4. nuclear substance, within the meaning of the Nuclear Safety and Control Act, that is radioactive; [1997, c. 9, s. 105]
5. hazardous waste;
6. product, material or substance included in Part II of Schedule I and packaged as a consumer product;
7. wood or product made of wood;
8. tobacco or a tobacco product as defined in section 2 of the Tobacco Act; or [1997, c. 13, s. 62]
9. manufactured article.

Interpretation / Discussion of Section 12

Part I of the HPA, which deals with restricted products and prohibited products, does not apply to the products, materials and substances referred to in paragraphs 12(a) through (d). Refer to the discussion under section 3 of the HPA for information on the items included in paragraphs (a) through (d).

Part II of the HPA, (sections 11 to 20), which deals with WHMIS controlled products, does not apply to the products, materials nor substances included in paragraphs 12 (a) to (i). To prevent a delay in implementing the WHMIS program, these products were initially exempt from WHMIS because, in many cases, these product categories were already subject to existing federal legislation. The federal legislation which established the WHMIS requirements of the HPA, however, required that these exemptions be reviewed by a Committee of Parliament with respect to the need for their continuance (see section 57 of Bill C-70). At the time of publication of this manual, no final decision has been made regarding the status, including the continuation, of any of the exempted products.

The Food and Drugs Act (FDA) is concerned with the protection of living persons and animals against injury from the use or administration of drugs, food, cosmetics and therapeutic devices. In particular, sections 16 to 18 of the FDA, which create offenses relating to the sale, manufacture and packaging, etc. of cosmetics, all deal with protecting the health of the user. For example, embalming fluids and adhesives used for reconstruction of a corpse after autopsies are not considered to be "cosmetics within the meaning of the Food and Drugs Act, (FDA)" and are, therefore, subject to the WHMIS supplier label and MSDS requirements of the HPA.

"Drug", as defined in the FDA, includes a raw material that is itself a drug and used to manufacture a drug in dosage form. The term "drug" is not limited to a drug in dosage form. Therefore, raw materials that are drugs are excluded from WHMIS HPA requirements by virtue of paragraph 12(b). The pharmaceutical industry has indicated that the majority of such raw materials are currently in compliance with WHMIS. Therefore, as an interim policy, until such time as legislative/regulatory measures are taken on the FDA exclusion, raw materials that are drugs as defined in the FDA and are used to manufacture drugs in their dosage form should, on a voluntary basis, be brought into compliance with WHMIS. This was agreed to by the multistakeholder Food and Drugs Act Sectoral Committee which reviewed the exclusion for drugs, {ref.: PIS No. 69}.

Carbon dioxide intended for use in carbonated beverages, even if it falls within any of the criteria in section 34 of the CPR, is exempt from the WHMIS supplier label and MSDS requirements of the HPA when sold for this purpose, {ref.: PIS No. 52}.

Paragraph 12(d):

(See also the discussion of paragraph 3(d) of the HPA). The Nuclear Safety and Control Act, S.C. 1997, c.9, which came into force on May 31, 2000, and replaced the Atomic Energy Control Act, redefines "nuclear substance" (formally defined as "prescribed substance") to include only the radioactive components of radioactive nuclide mixtures. As a result, non radioactive controlled product carrier materials in radioactive nuclide mixtures are now subject to the WHMIS requirements of the HPA even though the exclusion for nuclear substances pursuant to paragraph 12(d) of the HPA remains.

The WHMIS supplier label for non-radioactive carrier materials for radioactive nuclides is in addition to, and separate from, the labelling requirements for radioactive nuclides under the Nuclear Safety and Control Act.

The addition of subsection 19(6) to the CPR (SOR/2001-254, July 12, 2001) provides certain labelling exemptions for a controlled product that is a mixture of one or more radioactive nuclides and one or more non-radioactive carrier materials. Conditional MSDS and label exemptions for small quantities of such mixtures are provided by sections 10.1(a) and 17.1(a), respectively, of the CPR. Other exemptions are provided by paragraphs 10.1(b)(c), 14(2)(a)(iii) and 17.1(b)(c) of the CPR.

Paragraph 12(e):

By virtue of paragraph 12(e) of the HPA, hazardous waste is exempt from the WHMIS supplier labelling and MSDS requirements of the HPA. CPR 2(2) defines hazardous waste as "...a controlled product that is intended for disposal or is sold for recycling or recovery." The terms "disposal", "recycling" and "recovery" are not defined in the HPA/CPR.

Questions have been raised as to whether certain operations would fall within the concept of disposal, recycling and recovery such as, for example, the use of used motor oil for spraying gravel roads for dust control, (a practice which may be prohibited under laws administered by provincial/ territorial ministries of the environment), as an additive to fuels such as "Bunker C" fuel oil (which is currently produced by blending the oil remaining after the refining process with lighter oil), or as a fuel by itself.

Some controlled products are recovered and then either re-used in the workplace or sold as a recycled product. Other controlled products may be recycled and re-used in the workplace without further processing. As per CPR 2(2), only hazardous waste that is "intended for disposal" or is "sold for recycling or recovery" falls within the definition of hazardous waste and is thereby exempt from the WHMIS requirements of the HPA. Paragraph 12(e) of the HPA does not establish an exemption for controlled products that are re-used in the workplace or that are recycled and then sold to another workplace.

The Transport of Dangerous Goods Regulations (TDGR) define "recyclable material" as follows:

means the dangerous goods that are waste and that are identified as hazardous waste for recycling in the Export and Import of Hazardous Wastes Regulations and the Canadian Environmental Protection Act; (matière recyclable)

(note: a definition for "recyclable material" has not been included in the revised TDGR, SOR/2001-286.)

Subsection 2(1) of the Export and Import of Hazardous Wastes Regulations EIHWR) under the Canadian Environmental Protection Act (CEPA) provides the following definitions:

"authorized facility" means a facility in respect of which a licence, permit, certificate or other written authorization has been issued by the competent governmental authority to dispose of or to recycle, as the case may be, in the manner set out in the notice, the type of hazardous waste that is being exported or imported; (installation agréée)

"disposal" means any operation set out in column I of an item of Part I of Schedule I and includes storage pending that operation; (élimination)

"disposer" means any person to whom a hazardous waste is shipped and who carries out the disposal of that waste; (éliminateur)

"recycler" means a person to whom a hazardous waste is shipped and who carries out the recycling of that waste; (recycleur)

"recycling" means any operation set out in column I of an item of Part II of Schedule I. (recyclage)

Section 2(2) of the EIHWR states:

For the purposes of these Regulations, where only part of a hazardous waste is destined for recycling, the hazardous waste shall be considered to be destined for recycling.

Item 1 of Part II of Schedule I to the EIHWR includes the "Use as a fuel in an energy recovery system" as a recycling operation and Item 9 includes "Re-refining or re-use, other than the operation set out in item 1, of used oil".

Controlled products fall within the scope of the HPA 12(e) exemption only if encompassed by the definition of hazardous waste in CPR 2(2); i.e., are intended for disposal or sold for recycling or recovery. For the purposes of the HPA exemption for hazardous waste as defined in the CPR {IWCC Policy Document No. 5}:

1. "disposal" includes any operation set out in Part I of Schedule I to the Export and Import of Hazardous Wastes Regulations (EIHWR) and includes storage pending that operation; and
2. "recycling" and "recovery" include any operation set out in Part II of Schedule I to the EIHWR, except item 9 with respect to re-use and item 14 with respect to use or re-use. For example, drilling fluids recovered and sold for re-use as drilling fluids would not be exempt.

[CEPA] Export and Import of Hazardous Wastes Regulations

Schedule I - Part I Disposal

1. Release into or onto land, other than by any operation set out in items 3 to 5 and 12
2. Land treatment, such as biodegradation of liquids or sludges in soil
3. Deep injection, such as the injection of pumpable discards into wells, salt domes or naturally occurring repositories
4. Surface impoundment, such as placing liquids or sludges into pits, ponds or lagoons
5. Specially engineered landfilling, such as placement into separate lined cells that are capped and isolated from each other and the environment
6. Release into water, other than a sea or ocean, other than by the operation set out in item 4
7. Release into a sea or ocean, including sea-bed insertion, other than by the operation set out in item 4
8. Biological treatment, not otherwise set out in this Schedule
9. Physical or chemical treatment, not otherwise referred to in this Schedule, such as evaporation, drying, calcination, neutralisation or precipitation
10. Incineration on land
11. Incineration at sea
12. Permanent storage, such as emplacement of containers in a mine
13. Blending or mixing prior to disposal by any operation set out in items 1 to 12
14. Repackaging prior to disposal by any operation set out in items 1 to 13
15. Release or treatment, other than by any operation set out in items 1 to 12
16. Testing of a new technology to dispose of a hazardous waste

Schedule I - Part II

Recycling

1. Use as a fuel in an energy recovery system
2. Recovery or regeneration of substances that have been used as solvents
3. Recovery of organic substances that have not been used as solvents
4. Recovery of metals and metal compounds
5. Recovery of inorganic materials other than metals or metal compounds
6. Regeneration of acids or bases
7. Recovery of components used for pollution abatement
8. Recovery of components from catalysts
9. Re-refining or re-use, other than the operation set out in item 1, of used oil
10. Land treatment that results in agricultural or ecological improvement
11. Use of residual materials obtained by any operation set out in items 1 to 10 and 14
12. Exchange of a hazardous waste for another waste prior to recycling of the hazardous waste by any operation set out in items 1 to 11 and 14
13. Accumulation prior to recycling by any operation set out in items 1 to 11 and14
14. Recovery or regeneration of a substance or use or re-use of a hazardous waste, other than by any operation set out in items 1 to 10
15. Testing of a new technology to recycle a hazardous waste

Paragraph 12(f):

The HPA does not place any legal obligation on a supplier/importer to provide a MSDS for nor apply a WHMIS supplier label to a "product, material or substance included in Part II of Schedule I [to the HPA] and packaged as a consumer product". A product, material or substance included in Part II of Schedule I to the HPA is a "restricted product" and cannot be sold unless it meets the requirements of the applicable Regulations. In the case of chemical products, the applicable regulations are the Consumer Chemicals and Containers Regulations (CCCR). A product included in Part II of Schedule I "packaged as a consumer product" means the product is sold or imported in a container size that is also available at retail outlets to consumers and is labelled and packaged in accordance with the CCCR and any other labelling and packaging requirements for consumer products. The proportion of sales of the product to consumers versus industrial customers is irrelevant. For a product to be exempt from the WHMIS supplier labelling and MSDS requirements of the HPA/CPR, it must meet the following conditions:

• it must be included in Part II of Schedule I to the HPA;
  
• it must be packaged as a consumer product; and
  
• it must be available to the general public through a retail outlet.

For some chemicals included in Part II of Schedule I of the HPA, the CCCR did not require any labelling. This was the result of concentration cut-offs specified in the CCCR. For example, with the exception of naphtha, gasoline, petroleum ether or combination thereof, a consumer product containing less than 10% w/w petroleum distillate does not require labelling under the CCCR. However, as such products "are included in Part II of Schedule I", if they are "packaged as a consumer product", by virtue of paragraph 12(f), they are exempt from the WHMIS requirements of the HPA. Labelling under the CCCR is not a condition for this exemption. The intent of this exemption was, in part, to avoid a requirement for two separate labels for a single product. The CCCR has been amended to replace the current list-based approach with WHMIS-type hazard criteria. The criteria approach used in the CCCR-2001 will likely address such anomalies.

The following questions and answers may provide additional guidance on this exemption:

Paragraph 12(g):

"Wood or product made of wood" is meant to refer to a structured item; it does not, therefore, include products such as turpentine, paper, wood pulp and other products derived from wood. Wood "dust" is not considered to fall within this exemption.

Paragraph 12(h):

"Tobacco or a tobacco product" was not meant to include a chemical derived from tobacco such as nicotine.

Paragraph 12(i):

Refer to section 11 of the HPA for the definition of "manufactured article". The following items reflect recommendations made by WHMIS stakeholders, {ref.: PIS No. 33, amended December 2007}:

1. The exemption for "manufactured articles" is not meant to bring more products into the WHMIS system; i.e. if a product does not contain a controlled product when it is sold or imported, it is not subject to the federal aspects of WHMIS under the HPA, even if a controlled product is formed and released when the article is used.
   
2. If a product is a controlled product, it will be exempted under the "manufactured article" exemption if it meets all three conditions stated in the definition found in subsection 11(1) of the HPA.
3. The third condition under the manufactured article definition refers to releases of or exposure to a controlled product "under normal conditions of use". "Normal conditions of use" should exclude releases of a controlled product that may occur during maintenance or that occur if the article is abused. "Normal condition of use" does include installation.
   
4. Trace releases of controlled products that would not pose a health risk to workers under normal conditions of use from manufactured articles will not preclude these items from being exempt under the "manufactured article" exemption.
5. If a controlled product is an article but is not exempt under the manufactured article exemption because it releases, under normal conditions of use, a controlled product, the supplier is required to provide hazard information and ingredient identity and concentration only in relation to those ingredients that are controlled products and that are released under normal conditions. In addition, hazardous decomposition products and hazardous combustion products of which the supplier is aware or ought reasonably to be aware that are released during normal use of articles which are controlled products must be identified on the MSDS. The supplier is not expected to give toxicological data on probable releases that are not ingredients of the product.
   
6. If a controlled product under normal conditions of use (e.g. the product is intended to be cut, melted or heated) releases hazardous chemicals of which the supplier is not certain, he must provide general warnings about possible toxic releases (subsection 12(11) requires on an MSDS any other hazard information with respect to the controlled product of which the supplier is aware or ought reasonably to be aware).
7. The "controlled product" referred to in the third condition of the manufactured article definition is that which is present in the manufactured article that is sold and does not include controlled products that are released as a result of thermal or chemical degradation. Where a controlled product that is present in the manufactured article is released during normal use but in an altered form that is also a controlled product (e.g., an oxide), the manufactured article exemption cannot be used.

Steel products and the manufactured article exemption: With respect to steel rod, "I" beams and sheets, it was agreed that manufacturers and other suppliers who are uncertain about the end use of steel products should provide labels and MSDS as a condition of sale. A supplier to the end users can either:

1. provide labels and MSDS for all their sales, or
2. determine the end use of the product and provide the label and MSDS as necessary; {ref.: PIS No. 50}.

This policy is consistent with requirements under the OSHA Hazard Communication Standard which refers to "solid metal (such as steel beam or a metal casting) that is not exempted as an article due to its downstream use...".