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Follow-up petition on fumigants and other pesticides in shipping containers
Petition: No. 126B
Issue(s): Human health/environmental health, international cooperation, pesticides, toxic substances, and transport
Petitioner(s): Tom Edwards
Date Received: 8 March 2005
Status: Completed
Summary: In petition 126A, the petitioner alleged that he was exposed to a potentially toxic pesticide while handling an overseas shipping pallet in his workplace. In its response, Transport Canada stated that it could not take any action unless the chemical was positively identified. In this follow-up petition, the petitioner provides documentation of the workplace incident and a laboratory identification of the chemical. The petitioner asks additional questions about the government's measures to control the use of banned and toxic pesticides on shipments entering Canada and about protecting the safety of border services workers. The petitioner also asks the federal government to provide him with worker assistance and compensation. See related petition no. 126A.
Federal Departments Responsible for Reply: Canada Border Services Agency, Health Canada, Human Resources and Skills Development Canada [2003-2006], Transport Canada
Petition
March 4, 2005
Carleton Place, Ontario
Office of the Auditor General of Canada
ATTN: Steven Morgan
240 Sparks Street
Ottawa, Ontario
K1A 0G6
Dear Mr. Morgan
Further to Transport Canada's response to my previous petition (126), that they are unable to do anything for me, because the chemical was not positively identified, please consider this as a followup petition. I wish to provide proof to you, and to them, that the chemical was positively identified as DINEX. I have included* a copy of the lab sample analysis, which was taken, as a result of my incident. I also have attached* documentation from the Provincial Ministry of Labour confirming my incident. I request now for Transport Canada to take action. I am also attaching* some other information advising that this is not the only chemical that myself or my workmates, have been exposed to over the course of our daily duties.
I have some questions for Transport Canada and any other government departments, that you consider relevant, regarding my exposure to these chemicals as well.
1. How do these chemicals arrive here seemingly uncontrolled, unregulated and undetected?
2. What measures are the Federal Government prepared to put in place, to prevent this from happening to others? I also came home from work for a couple of years with various chemicals on my clothes thus exposing my family to these. What will you do for them?
3. When I received my shipment on May 18, 2001, there were 2 other deliveries on the truck destined to 2 other locations in Kanata. Who advises them that they have been exposed and could be sick from this exposure?
4. Why are these pesticides/mitacides, allowed to be used in foreign countries if they are considered toxic here? The comment says they "dissipate" before they get here, and my question is how can anyone be sure that in fact there is none left when it arrives here? There clearly was, and Alcatel has advised in an email that sometimes there is "very little residue when it arrives here". That hardly seems right.
5. There were never any markings on the containers advising any handlers that the trailers/containers contained any harmful materials. Why would nothing ever be said to anyone including Customs people, advising them of the dangers that they were being exposed to? Were proper procedures being followed in the handling of these goods? They obviously weren't being followed properly at my workplace, but my [name withheld] knew and never told anyone as shown by his emails.
6. I have been refused income from the WSIB(Provincial income replacement for injured workers). What is the Federal Government prepared to do about this to compensate myself, and my family? What can I do to get my income back? What is the Federal Government prepared to do for the people who are sick and don't even know why, or are you prepared to tell everyone involved that they have been exposed to this?
7. How can this arrive here, and be taken to a hospital in the Ottawa Carleton region, in an open bag for analysis? I advised the health and safety people against doing this, but they advised this was standard procedure? Is this standard procedure or do you need to educate people in regards to the safe handling of tramp chemicals such as these?
These are just some of the questions I would like answers to. I have attached* some other information for your perusal. I await your reply.
Thank You,
[Original signed by Tom Edwards]
Tom Edwards
394 Pattie Drive
Carleton Place, Ontario
K7C 2G3
*[attachments not posted]
Minister's Response: Canada Border Services Agency
October 31, 2005
Mr. Tom Edwards
394 Pattie Drive
Carleton Place, Ontario
K7C 2G3
Dear Mr. Edwards:
I am writing in reference to your environmental petition (#126B) concerning fumigants and other pesticides in shipping containers, which was filed with the Office of the Commissioner of the Environment and Sustainable Development on March 4, 2005, and subsequently forwarded to the Canada Border Services Agency (CBSA). The Commissioner has also referred your petition to my colleagues, the Minister of Health, the Minister of Human Resources and Skills Development, and the Minister of Transport.
As Minister of Public Safety and Emergency Preparedness, I provide responses on matters within the areas of responsibility of the CBSA. The CBSA provides integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, which meet applicable regulations and legislation for entry into Canada.
In your petition, you raise concerns arising from your exposure to the pesticide Dinex that was apparently used to treat wood pallets from Hong Kong that were included in a shipment received at your place of work on May 18, 2001. At that time, Canadian Food Inspection Agency (CFIA) Policy Directive D-98-10 applied to goods shipped with wooden packaging from China and Hong Kong Special Administrative Region (HKSAR).
Directive D-98-10 required that all wood pallets, crating, or other packaging materials made from non-manufactured wood products originating from China and HKSAR be treated to prevent the entry into Canada of the Asian long-horned beetle and other pests. The three treatments permitted were: fumigation with methyl bromide or sulphuryl fluoride at prescribed rates, kiln drying, and chemical impregnation treatment with preservative solution of chromate copper arsenate. The application of Dinex was not one of the approved treatments.
In 2001, D-98-10 required that a phytosanitary certificate or a fumigation/disinfection certificate be issued by the official plant protection organization of China or HKSAR in order to substantiate that the materials were treated in an approved manner. Shipments containing wood suspected of being infested with pests or without proper documentation would be detained by the CBSA and not released until treated in an approved manner.
In the case of the shipment received at your place of work, the release documentation provided to customs indicated that it contained no solid packing material and there was no mention of wood pallets. As there is no record of any other suspected problems with the shipment, it was released without further examination in accordance with established procedures.
While Dinex is classified as a pesticide, the World Health Organization lists Dinex in the category of substances "believed to be obsolete or discontinued for use as a pesticide." It should be noted, however, that there are no import requirements to report or label shipments that are treated with pesticides such as Dinex.
Although CBSA officials were unable to conclusively determine why the shipment in question contained Dinex, your petition has brought to our attention the possibility that it and other pesticides may be improperly used to treat wood packaging for shipments arriving from China and HKSAR. CBSA officials have since taken specific steps to identify and examine shipments of this nature more closely in order to determine the extent of this practice and make efforts to ensure that only properly treated shipments are released. Additionally, CBSA employees have been alerted to the possible presence of loose pesticides in similar shipments.
I thank you for bringing your concerns forward through the environmental petitions process.
Sincerely,
[Original signed by A. Anne McLellan, Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness]
The Honourable A. Anne McLellan, P.C., M.P.
Minister's Response: Health Canada
November 1, 2005
Mr. Tom Edwards
394 Pattie Drive
Carleton Place, Ontario
K7C 2G3
Dear Mr. Edwards:
I am writing in response to your environmental petition (no. 126B) of March 5, 2005, to the Commissioner of the Environment and Sustainable Development (CESD) of Canada, as a follow-up to your previous petition (no. 126) pursuant to section 22 of the Auditor General Act. These petitions deal with your exposure on May 18, 2001, to material that may have been hazardous at your place of work at Alcatel Canada in Kanata, Ontario .
I thank you for providing the laboratory analysis results which identified the chemical supplied to be Dinex, a toxic chemical. You have asked pertinent questions as to the responsibilities of the Government of Canada in relation to the importation, shipment and use of chemicals; what can be done to prevent accidents; and how you and your family can be compensated.
I take your concerns seriously. Departmental officials have carefully considered your petition relative to Health Canada's mandate. They have investigated Dinex in respect to the importation, sale, labelling or use of hazardous products in Canada, as defined in the Hazardous Products Act (HPA), as well as the Pest Control Products Act (PCPA). It was determined that neither the PCPA and its regulations, nor the HPA apply. The pesticide Dinex has not been registered for importation, sale or use in Canada since 1964.
Nonetheless, the Pest Management Regulatory Agency has expressed our concern to the company regarding the use of Dinex by its supplier and shipper, for shipments to Canada.
In my earlier response regarding petition 126, I indicated that Health Canada's mandate regarding workplace injuries does not apply in this case. Your exposure, which occurred at the workplace in a private sector firm, falls under provincial jurisdiction. Enclosed is additional information that I hope will address some of your specific questions.
Again, thank you for bringing this matter to the attention of the Government of Canada.
Yours sincerely,
[Original signed by Ujjal Dosanjh, Minister of Health]
Ujjal Dosanjh
Answers to specific questions
Question 1:
How do these chemicals arrive in Canada seemingly uncontrolled, unregulated and undetected?
Answer 1:
The following outlines those aspects which fall under the authority of the Pest Control Products Act (PCPA).
Pesticides imported into, sold or used in Canada are regulated nationally under the PCPA and its Regulations. The PCPA regulates the import, packaging, manufacturing, distribution, labelling, sale and use of products that control pests. Health Canada's Pest Management Regulatory Agency (PMRA) is responsible for administering this legislation. The PMRA is also responsible for establishing, under the Food and Drugs Act, maximum residue limits for pesticides in foods. These maximum residue limits apply both to imported foods and foods produced in Canada. Maximum residue limits are not established for other products.
Pesticides are carefully regulated in Canada through a program of pre-market scientific assessment, re-evaluation of older pesticides, enforcement, education and information dissemination. These latter activities are shared among federal, provincial, territorial and municipal governments, and are governed by various acts, regulations, guidelines, directives and bylaws. Regulators at all levels work together towards the common goal: helping prevent unacceptable risks to Canadians and the environment from the use of pest control products.
Working with other federal and provincial departments, the PMRA promotes and verifies compliance with the PCPA and its Regulations through investigations, inspections and consultations. The PMRA has the mandate to investigate the use, sale and importation of pest control products; perform on-site inspection of usage and storage of pest control products; do soil, crop and product sampling; and to educate individuals, local officials and grower groups as to regulatory requirements. Where contraventions of the Act or Regulations occur, appropriate enforcement measures may be taken.
It is important to note that the authority to address safety in the workplace rests with the provinces except in relation to workplaces that are subject to federal regulatory jurisdiction. A workplace such as Alcatel's would be within provincial jurisdiction. The fact alone that an unintentional presence of a small amount of unregistered pesticide was implicated would not provide sufficient grounds for legal action under the PCPA in this situation.
Question 2:
What measures is the federal government prepared to put in place, to prevent this from happening to others? I also came home from work for a couple of years with various chemicals on my clothes thus exposing my family to these. What will you do for them?
Answer 2:
For other than federally regulated workplaces, occupational health and safety (OH&S) is the responsibility of Canada's provinces and territories. The primary objective of Canadian federal, provincial and territorial (FPT) OH&S legislation is the protection of workers. Under this legislation, workers may refuse dangerous work, be informed about known dangerous conditions and hazardous materials in the workplace, and participate in work site OH&S committees.
The Canadian Constitution sets out the primacy of provincial and territorial jurisdiction over the workplace. Each OH&S jurisdiction has regulatory powers over matters within its boundaries relating to the work environment and the employer/employee relationship in the workplace. Although there are common themes, each jurisdiction has its own OH&S legislation that may have unique provisions. (The OH&S regulator for federally regulated workplaces is the Labour Program at Human Resources and Skills Development Canada.)
Additionally, Health Canada protects and enhances the health and safety of Canadian workers through its governing role as the national coordinator and administrator of the Workplace Hazardous Materials Information System (WHMIS), an FPT partnership program. The objective of WHMIS is to ensure the protection of Canadian workers from the adverse effects of hazardous materials through the provision of relevant health and safety information.
WHMIS supplier label and material safety data sheet (MSDS) requirements were established through amendments to the Hazardous Products Act (HPA) and the creation of the associated Controlled Products Regulations. These federal supplier requirements form the foundation of WHMIS. The Regulations establish a national standard for the classification of hazardous workplace materials and specify the health and safety information to be disclosed on product labels and in MSDSs. (Please note that, by virtue of paragraph 12c of the HPA, pest control products within the meaning of the Pest Control Products Act are exempt from WHMIS.)
WHMIS is implemented through coordinated FPT legislation. FPT OH&S agencies have established interlocking employer WHMIS requirements within their respective jurisdiction. These requirements place an onus on employers to ensure that controlled products used, stored, handled or disposed of in the workplace are properly labelled, MSDSs are made available to workers, and workers receive education and training to ensure the safe storage, handling and use of "(WHMIS) controlled products" in the workplace.
Question 4:
Why are these pesticides/mitacides, allowed to be used in foreign countries if they are considered toxic here? The comment says they "dissipate" before they get here, and my question is how can anyone be sure that in fact there is none left when it arrives here? There clearly was, and Alcatel has advised in an email that sometimes there is "very little residue when it arrives here". That hardly seems right.
Answer 4:
The Government of Canada cannot dictate what pesticides are used in other countries. In some cases, Canada works with other countries (e.g. NAFTA countries, European Union countries) to address health and safety issues through voluntary regulatory initiatives.
The PMRA requires that all pesticides used in this country are carefully assessed before their use in Canada is approved. More specifically, companies wishing to sell pesticide products in Canada must first apply for approval (product registration). Following the PMRA's review of scientific data relating to human health, the environment and product efficacy, a decision is made regarding product approval and the conditions of registration. Furthermore, provincial and municipal governments may then add more restrictions to the PMRA approval to address local issues.
In terms of the comments made by others that the pesticides dissipate, they are likely remarking on the fact that both methyl bromide and sulfuryl fluoride are fumigant gases. Typically, when methyl bromide is used, sealed containers are treated, left for a period of time while the pesticide takes action, and then aerated to reduce the level of pesticide to an acceptable level. Thus, proper treatment involves aeration that promotes the dissipation (escape) of the fumigant from the containers prior to their contents being handled.
In this case, it seems that these substances (methyl bromide and sulfuryl fluoride) were not used to fumigate the shipment; it appears that Dinex powder was applied between the boxes before they were shrink-wrapped for shipment. Dinex is a powder, so exposure to this particular product during unpacking is possible. Dinex is on the World Health Organization's list of pesticides that are believed to be obsolete or discontinued. The findings stated in the investigation report by the Ontario Ministry of Labour indicate that the exposure to Dinex was "unpredicted and unexpected."
Minister's Response: Human Resources and Skills Development Canada [2003-2006]
May 12, 2005
Mr. Tom Edwards
394 Pattie Drive
Carleton Place, Ontario
K7C 2G3
Dear Mr. Edwards:
On behalf of the Honourable Lucienne Robillard, I am pleased to respond to your letter of March 4, 2005, addressed to the Office of the Auditor General of Canada, further to Transport Canada's response to your petition (no. 126B), pursuant to section 22 of the Auditor General Act.
As Minister of Labour and Housing, I am responsible for the administration of Human Resources and Skills Development Canada's (HRSDC's) Labour Program, which administers Part II of the Canada Labour Code, pertaining to occupational health and safety.
In your petition, you raise concerns with respect to occupational health and safety, as well as worker's compensation, as a consequence to your exposure to material that may have been hazardous, following an incident at your place of work at Alcatel Canada in Kanata, Ontario, which occurred on May 18, 2001.
I wish to assure you that HRSDC officials have carefully reviewed your petition. It should be noted, however, that occupational health and safety is a shared responsibility between the provinces and territories and the federal government. The health and safety of approximately 90 percent of Canadian workers is covered by provincial or territorial health and safety legislation and regulations. Please note that the Canada Labour Code applies to enterprises that fall under federal jurisdiction. I note that your petition concerns health and safety practices at Alcatel Canada Inc., which does not fall under federal jurisdiction. As such, the Ontario Ministry of Labour has the authority to address these health and safety issues. I therefore encourage you to contact Ontario Ministry of Labour officials, who may be reached by calling toll free 1 800 268-8013, for information on health and safety issues.
With respect to workers' compensation, I should explain that it is a matter of provincial and territorial authority. HRSDC's Labour Program is involved in the administration of the Government Employees Compensation Act, solely as it pertains to the compensation of federal government employees. The Government of Canada has therefore no authority to intervene on your behalf with respect to workers' compensation. I encourage you, however, to contact representatives of the Workplace Safety and Insurance Board of Ontario for information on the appeals process. Representatives at the Ottawa office may be reached by calling (613) 237-8840 or, toll free, 1 800 267-9601, or by writing to:
700-99 Metcalfe Street
Ottawa, Ontario
K1P 1E8
Thank you for bringing your concerns to the federal government's attention. I hope that the information we have provided explains HRSDC's role with regard to occupational health and safety, as well as worker's compensation.
Sincerely,
[Original signed by Joe Fontana, Minister of Labour and Housing]
The Honourable Joe Fontana, P.C., M.P.
Minister's Response: Transport Canada
July 14, 2005
Mr. Tom Edwards
394 Pattie Drive
Carleton Place, Ontario
K7C 2G3
Dear Mr. Edwards:
Ms. Johanne Gélinas, Commissioner of the Environment and Sustainable Development, has forwarded to the Honourable Jean-C. Lapierre, Minister of Transport, a copy of your petition of March 4, 2005, which is in follow-up to a previous petition concerning an incident that occurred on May 18, 2001, at Alcatel Canada in Kanata, Ontario.
As you are aware, on June 21, 2005, Mr. Michel K. Vitou, Chief of Enforcement, Transport Dangerous Goods Directorate, met with you to discuss some of the concerns you had raised, to conduct a review of the information you provided and to obtain additional information from you. In the course of this review, Mr. Vitou met with several of the involved parties including: the Freight Forwarder (Gillepsie-Munro Inc.), the Shipping Agent (Montship Inc.), the hazmat response team (Drain-All Ltd.), Alcatel, Ridgeway Research Asia Inc., (in August 2001 Ridgeway became part of BreconRidge Manufacturing Solutions Corporation, an Ottawa-based full service outsource manufacturing company), the Ontario Ministry of Labour, Occupational Health and Safety, Operations Division, and the laboratories who performed the product analysis.
A couple of principles have to be considered in regards to identifying the powder as "Dinex": the continuity of possession of the sample and whether or not the sample was contaminated by another substance. Our review confirmed that approximately two hundred (200) grams of the product were recuperated from Alcatel's work area following your incident. The sample was brought to the hospital and then returned to Alcatel. It was left unattended on the shipping dock for approximately six (6) days prior to being sent to an accredited laboratory on June 7, 2001. When the results of the analysis were forwarded to Alcatel, the date on the certificate of analysis indicated that the sample was obtained on March 25, 2001. Even though this mistake could be attributed to human error, this is undoubtedly an additional mitigating factor that could be used to challenge the product identification. Furthermore, given that the incident occurred more than four (4) years ago, there is no known uncontaminated sample of the product left to retest.
As a result of our inquiries, we have obtained documentary evidence that small amounts of a similar product were found in two (2) other 2001 shipments originating from the same supplier (Ridgeway Research Asia Inc.). On both instances when this product was uncovered, Alcatel contracted the services of Drain-All Ltd, who provided a hazmat response team to recover the spilled product and subsequently decontaminate the work area. In regards to your particular incident, Drain-All Ltd was contacted on June 8, 2001, twenty-two (22) days after you were originally exposed to the product. On June 11, 2001, Alcatel requested, and subsequently received on July 10, 2001, approval from the Ontario Ministry of Environment (MOE) for an Emergency Generator Number (ONS0402-M) and obtained a manifest (Number SS-42981-0-3). Should you wish to obtain these documents you can exercise your rights of access to this information via the Provincial Freedom of Information and Protection of Privacy Act by submitting a request to:
Information and Privacy Commissioner/Ontario
2 Bloor Street East
Suite 1400
Toronto, Ontario
M4W 1A8
www.ipc.on.ca
Some of the additional information obtained in the course of this review has been forwarded to [name and title withheld] who conducted the initial investigation of this accident. Additionally, with your consent, Mr. Vitou has forwarded copies of your medical reports to Health Canada and copies of the laboratory results and other documents to Health Canada's Pest Management Regulatory Agency (PMRA), the federal agency responsible for the regulation of pest control products in Canada, and to the Canadian Border Services Agency.
The Transportation of Dangerous Goods Act, 1992 has some bearing on the additional questions you raised. However, although this Act applies during transportation it no longer applies once transportation ends.
There are over 8,000,000 commercially available chemicals. Transport Canada requires that a determination of the inherent danger in each be made before a chemical is transported. This is done based on the United Nations Recommendations on the Transport of Dangerous Goods Manual of Tests and Criteria, supplemented by Canadian regulations.
The result is a classification of those chemicals that are dangerous goods into approximately 3,000 categories. These include explosives, compressed gases, radioactive materials and toxic substances.
An emphasis is on the effect of short-term exposure rather than long duration exposure to smaller quantities as might exist in a work place.
"Dinex" is very similar to over twenty (20) other substances (Please refer to Appendix 1*). To our knowledge this chemical is no longer transported in quantity. Indeed, the World Health Organization lists Dinex in the category of substances "believed to be obsolete or discontinued for use as pesticides". (Please refer to Appendix 2*).
With respect to classifying "Dinex", there are conflicting reports on tests conducted to determine its inherent danger, but it appears it could be classified as Class 6.1, Toxic Substance. The criteria to be satisfied to fit into this classification are included in Appendix 3*.
Each Class 6.1 substance must be transported according to the requirements under the Transportation of Dangerous Goods Act, 1992. Included under the Act are exemptions to some of the requirements in specified circumstances, such as the transport of small quantities of Class 6.1 by consumers or the transport of less than five hundred (500) kg of Class 6.1 (other than liquids) under specified conditions. These two exemptions are found in Sections 1.15 and 1.16 of the Transportation of Dangerous Goods Regulations. They are reproduced in Appendix 4*.
Based on the evidence gathered in the course of our review, only two hundred (200) grams of the substance were recuperated following your incident, and no evidence to the contrary was found.
However, if a Class 6.1 substance is used as a fumigant during transport in a large means of containment, which a person could enter, then regardless of the quantity used there must be a fumigation sign next to or at any entryway into the container that a person could use to enter the container. (Please refer to Appendix 5*).
One should also recognize that a pesticide can decompose over time so that what was a Class 6.1 when first used may cease to be a Class 6.1 as time passes. For this reason a fumigation sign need not be present after the fumigant no longer meets the classification requirements.
Finally, for a shipment arriving in the country from outside Canada, the Canadian importer is ultimately responsible should a required fumigation sign not be displayed.
There is no information on the presence or absence of a fumigation sign on the original shipping container, (no. Molu2836103). Further, if the substance present was Dinex, no fumigation sign would be needed as Dinex is not a fumigant.
While I can understand your concerns in regards to this matter, based on the information obtained I must come to the conclusion that there are no provisions in the Transportation of Dangerous Goods Act, 1992 that would allow us to prove beyond a reasonable doubt that an offence has been committed. Consequently, there is no legal basis upon which to recommend to the Department of Justice that charges be considered under the Transportation of Dangerous Goods Act, 1992.
Thank you for bringing your concerns to Transport Canada's attention. I hope the foregoing explains Transport Canada's role in the context of the regulation of the transportation of dangerous goods.
Sincerely yours,
[Original signed by Leslie Swartman, Chief of Staff of Transport Canada]
Leslie Swartman
*[attachments not posted]