Vol. 151, No. 1 — January 11, 2017
SOR/2016-327 December 21, 2016
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999
Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on May 14, 2016, a copy of the proposed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999, in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Order or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;
Therefore, the Minister of the Environment and the Minister of Health, pursuant to section 100 of the Canadian Environmental Protection Act, 1999 (see footnote c), make the annexed Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999.
Gatineau, December 15, 2016
Minister of the Environment
Ottawa, December 13, 2016
Minister of Health
Order Amending Schedule 3 to the Canadian Environmental Protection Act, 1999
1 Item 1 of Part 1 of Schedule 3 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is replaced by the following:
1 Dodecachloropentacyclo [5.3.0.02,6.03,9.04,8] decane (Mirex) (Chemical Abstracts Service (CAS) 2385-85-5)
2 Part 2 of Schedule 3 to the Act is amended by adding the following after item 11:
12 Mixtures that contain elemental mercury (CAS 7439-97-6) at a concentration of 95% or more by weight
Coming into Force
3 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Mercury is a naturally occurring chemical element that is persistent, bioaccumulative and toxic, even at very low levels, to human health and in aquatic and terrestrial ecosystems. Mercury is released into the environment from natural processes and human activities, and when released into the atmosphere, it undergoes long-range atmospheric transport and accumulates in northern regions, including Canada and, in particular, the Canadian Arctic.
In 2003, the Governing Council of the United Nations Environmental Programme found sufficient evidence of significant global adverse impacts from mercury and its compounds to warrant further international action to reduce the risks to human health and the environment. This finding led to negotiation, from 2010 to 2013, of the Minamata Convention on Mercury (Minamata Convention), a global, legally binding treaty that addresses all aspects of the mercury life cycle, including atmospheric emissions and trade. Parties to the Convention are required to maintain comprehensive restrictions on the export of elemental mercury that is at a concentration of 95% or more by weight.
Currently, there are no measures in Canada controlling or prohibiting the export of elemental mercury, except when it is, or is contained in, hazardous waste or hazardous recyclable material regulated under the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (EIHWHRMR). To be in a position to ratify the Minamata Convention, which Canada signed on October 10, 2013, Canada must implement controls on the export of elemental mercury.
Mercury is found in three general forms: (1) pure mercury (a heavy metal), also known as “elemental mercury” or “metallic mercury;” (2) inorganic mercury compounds; and (3) organic mercury compounds. Natural processes, such as volcanic activity and erosion, release mercury into the environment. Mercury is also released as a result of human activities such as metal mining, base metal smelting, the combustion of coal, cement production, product use and disposal, and incineration of waste containing mercury. Mercury has been used in a variety of commercial and consumer products due to its unique characteristics. These products include, among others, fluorescent lamps, thermometers and thermostats, batteries, dental amalgams, medical/measuring devices and switches and relays.
Exposure to mercury is known to have toxic effects on humans, ecosystems and wildlife. Mercury is a potent neurotoxin that is particularly damaging to the development of human fetuses, infants and young children. The primary route of human exposure to mercury is consumption of fish or of piscivorous (fish-eating) mammals with heightened levels of mercury. Therefore, there is particular concern for those eating large amounts of these foods, such as First Nations and Arctic Aboriginal peoples, who rely on these traditional foods for sustenance. A 2011 study conducted in Nunavik showed that 72% of women of childbearing age had levels of mercury in their blood above safe thresholds. (see footnote 2)
Given these risks of toxic effects on humans, ecosystems and wildlife, Canada has put in place various measures to reduce and mitigate the potential risk of exposure to domestic mercury emissions and releases. These measures have reduced Canadian mercury emissions by over 90% since the 1970s. Mercury and its compounds are listed on Schedule 1 (List of Toxic Substances) of the Canadian Environmental Protection Act, 1999 (CEPA), enabling the introduction of regulatory and non-regulatory risk management measures. Canada-wide Standards on Mercury Emissions (Incineration and Base Metal Smelting) and Canada-wide Standards on Mercury Emissions from Coal-fired Electric Power Generation Plants were established in 2000 and 2006, respectively. These measures, along with the closure of mercury cell chlor-alkali facilities, and process changes by a smelting company in Flin Flon, Manitoba, drove the reductions in mercury emissions in Canada.
More recently, the Products Containing Mercury Regulations, which, with some exemptions, prohibit the import and manufacture of products containing mercury, came into force on November 8, 2015, and are anticipated to prevent over 4 100 kg of mercury from being released into the air.
Despite these domestic efforts to reduce mercury air emissions and releases into the environment, Canada remains a net recipient of mercury through air emissions at the global level. More than 95% of mercury resulting from human activities that is deposited in Canada comes from other countries. The mercury travels by air and is deposited in Canada’s soil, water and ice. At 42%, China is the largest foreign source of mercury deposition in Canada, followed by the United States, at approximately 17%. The sector for artisanal and small-scale gold mining using mercury, which does not occur in Canada, contributes 37% of global mercury emissions. (see footnote 3) Coal burning contributes 24% of global mercury emissions. (see footnote 4) This suggests that Canada would benefit from global efforts to reduce or eliminate impacts from mercury emissions worldwide.
Canada is not a producer of high-purity mercury through primary mercury mining, nor do facilities exist in Canada to distill mercury wastes or by-products to a high purity for industrial use. Therefore, all mercury for industrial use must be imported. Statistics Canada data indicate that there are 88 companies in total that import mercury. Among them, 11 companies are known exporters of mercury waste, and another 4 were identified as exporters of mercury. The Department of the Environment (the Department) assumes these 4 companies are re-exporters since Canada does not produce mercury.
The Minamata Convention
The Minamata Convention is a global treaty to protect human health and the environment from the adverse effects of mercury. The major highlights of the Minamata Convention include a ban on new mercury mines, the phase-out of existing mines, control measures on air emissions, and international action on the sector of artisanal and small-scale gold mining using mercury. In order to ratify the Minamata Convention, Parties must also control exports of elemental mercury (see footnote 5) in which the concentration of elemental mercury is 95% or more by weight. The Convention was agreed upon at the fifth session of the Intergovernmental Negotiating Committee in Geneva, Switzerland, in January 2013, and it was opened for signature in Japan in October 2013. The Convention had been signed by 128 governments, including Canada, and the number of governments that have ratified the Convention (including the United States in 2013) continues to increase.
Export Control List
Canada has committed to shared responsibility and cooperative efforts to address the international trade in chemicals and pesticides. The Export Control List (ECL) in Schedule 3 to CEPA and the associated Export of Substances on the Export Control List Regulations (the Regulations) help Canada to meet its current international obligations.
The ECL is a list of substances whose export is controlled because their use in Canada is prohibited or restricted, or because Canada has accepted to control their export under the terms of an international agreement. Section 100 of CEPA provides the Minister of the Environment and the Minister of Health with the authority to add or delete substances from the ECL by order. These amendments are published in the Canada Gazette.
Permits are sometimes required for the export of a substance on the ECL. The conditions for determining when an export permit is required and for obtaining permits from the Minister are specified in the Regulations. Additionally, the Regulations establish conditions under which a person may export a substance listed on the ECL.
Substances on the ECL are grouped into three parts:
- Substances specified in Part 1 are subject to a prohibition on their use in Canada. They can be exported for the purpose of destruction or to comply with a direction issued by the Minister under subparagraph 99(b)(iii) of CEPA.
- Substances specified in Part 2 are subject to an international agreement whereby exports require the notification or consent of the importing country.
- Substances specified in Part 3 are subject to domestic controls that restrict their use in Canada.
Export of Substances on the Export Control List Regulations
The Regulations impose controls on the export of substances listed on the ECL. They describe the manner in which to notify the Minister of the Environment of proposed exports. The Regulations enable Canada to meet its obligations under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention) (see footnote 6) as well as its export obligations under the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention). (see footnote 7) Specifically, the Regulations provide a permitting scheme for exports to Parties to the Rotterdam Convention and establish restrictions on the export of substances subject to the Stockholm Convention. Canada is a Party to both of these Conventions.
The Regulations apply to all exports of substances listed on the ECL, regardless of the purpose of the export or the quantity.
The primary objective of the Order is to position Canada to ratify the Minamata Convention. Ratification of the Convention by Canada would demonstrate Canada’s commitment to protecting the environment and human health from mercury to domestic stakeholders and to Canada’s international negotiating partners. Canada’s ratification would encourage reductions in global mercury emissions, and would consequently reduce foreign mercury deposition in Canada, particularly in Canada’s Arctic.
The Order will add mixtures containing elemental mercury in which the concentration of elemental mercury is 95% or more by weight to Part 2 of the ECL, making exports of elemental mercury subject to the Regulations. The Order, and accompanying amendments to the Regulations, will establish restrictions applying to these exports.
The Order will also change the name of Mirex in Part 1 of the ECL to align with the List of Toxic Substances in CEPA. This will change “Mirex (Dodecachloropentacyclo [5.3.0.02,6.03,9.04,8] decane)” [Chemical Abstracts Service (CAS) No. 2385-85-5] to “Dodecachloropentacyclo [5.3.0.02,6.03,9.04,8] decane (Mirex)” [CAS No. 2385-85-5]. (see footnote 8) The Order will not change the export control of Mirex.
Benefits and costs
Below is a summary of the impacts on Canadians, industry, and the Government.
The Order will, with the accompanying amendments to the Regulations, benefit Canadians by allowing Canada to be in a position to ratify the Minamata Convention. The Minamata Convention, once in force, will obligate participating governments to take measures to control and, where possible, reduce mercury emissions and to take steps to enable the responsible trade of mercury.
The Minamata Convention will come into force 90 days after 50 governments have ratified the treaty. Canada’s participation in the Minamata Convention allows it to contribute to global controls of mercury emissions. Hence this international, legally binding treaty will lead to the control and reduction of mercury emissions worldwide. Since most of the mercury deposited in Canada is from foreign sources, global action taken under the treaty will reduce Canadians’ exposure to mercury.
A restriction on certain mercury exports (see footnote 9) is also consistent with the life-cycle approach adopted by Canada, which aims to prevent or minimize releases to the environment. This approach takes into account supply, trade, products, manufacturing processes, uses, atmospheric emissions, releases to land and water, environmentally sound interim storage and waste. The Minamata Convention’s ultimate objective “to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds” is in line with the life-cycle approach.
By restricting mercury exports, Canada will not be contributing to the global use of mercury for artisanal and small-scale gold mining, which accounted for 37% of global mercury emissions in 2010. A reduction in global mercury emissions would reduce the impact on the environment and the health of Canadians, particularly in the Arctic.
Since the Order will be strictly in regard to exports, there will be no direct costs passed on to Canadian consumers.
Canada is not a producer of high-purity mercury. Available information shows that exports of mercury from Canada take place by exporters who first import the mercury. However, due to the United States’ ban on mercury exports in 2013, the availability of mercury from domestic U.S. sources and a limited market for mercury in the United States, imports of mercury into the United States have decreased significantly. As a result, the impact of the Order on any Canadian exporters to the United States will be low.
The export of mercury waste for treatment or environmentally sound disposal is allowed under both the Minamata Convention and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. Eleven Canadian companies are known to have exported mercury waste between 2010 and 2015. These companies will be allowed to continue this activity. The Order will not result in any increased costs or lost revenue. If this waste contains mercury below 95%, it will not be within the scope of the Regulations, but may still be regulated under the EIHWHRMR. If the waste contains mercury above this level, the export will still be allowed, but a prior notification of export will be required in addition to any controls that may apply under the EIHWHRMR or other instruments.
Companies that export mercury at a concentration of 95% or more by weight to countries other than the United States will be affected by the Order and by amendments to the Regulations, which together will impose restrictions on these exports. Over the last five years, four companies exported mercury from Canada to countries other than the United States. Costs associated with compliance with the Order and the amendments to the Regulations are assessed in the Regulatory Impact Analysis Statement for the amendments to the Regulations Amending the Export of Substances on the Export Control List Regulations.
Companies exporting mixtures containing elemental mercury in a concentration of 95% or more by weight, for purposes that will still be allowed under the amendments to the Regulations, will be required to provide prior notification of exports. The administrative costs due to the notification requirements are $80 per business per year. As noted above, there are 88 companies that are estimated to be within the scope of the Order and the amendments to the Regulations, which includes the 11 companies exporting hazardous waste or hazardous recyclable material and the 4 companies exporting mercury, according to data from Statistics Canada.
The Order is not expected to affect competitiveness for any regulatee or sector given that the expected cost for stakeholders is negligible.
The cost of the Order to the Government will be negligible, as there is an existing regulatory program in place to administer the Regulations. Specifically, compliance promotion costs are not expected, since the Department maintains and updates a list of compliance promotion materials on a regular basis. Therefore, the Government is not expected to face any additional compliance promotion obligations.
The enforcement cost is estimated to be $150 annually, assuming that an average of one test sample would be required every five years to determine whether an exported substance is mercury.
The “One-for-One” Rule will apply to the Order (“IN”), as there will be incremental administrative costs to business. Companies exporting mercury for purposes allowed by the Regulations will be required to provide prior notification of exports. Information from Statistics Canada revealed that there are 88 companies importing mercury into Canada, for purposes including laboratory use, research, and manufacturing of plastics, pharmaceuticals, or metal alloys.
The Order will only impact mercury exporters. Among these 88 companies, 4 companies are known to have exported mercury and 11 other companies have a history of exporting mercury as hazardous waste or hazardous recyclable material in the past five years.
For the purposes of the “One-for-One” calculations, an assumption was made that all 88 companies will assume administrative costs. These companies will be required to learn about the notification requirements and submit notifications when they plan to make an export. The annualized administrative cost is estimated to be $71 per company, or a total annualized administrative cost of $6,212. (see footnote 10) The assumptions that went into the “One-for-One” calculations are the following: (see footnote 11)
- One-time cost for learning about the notification requirements (88 companies × 1 hour × 1 time × $46 per hour); and
- Annual cost for submission of notifications [(77 companies × 0.5 hours × 4 times per year × $46 per hour) + (11 companies × 0.5 hours × 1 time per year × $46 per hour)].
Since this is an amendment to an existing Order, under the “One-for-One” Rule, there is no repeal.
Small business lens
The small business lens does not apply to the Order since the cost impacts are expected to be below one million dollars annually, and the cost impact per small business will be negligible.
It is assumed that 88 companies will be impacted by the Order. Of these companies, 24 are small businesses. For these small businesses, the Order is expected to result in administrative costs of $80 per company, costs that are similar to those assumed by medium and large businesses.
An initial 30-day online public consultation was held in September 2014 regarding possible export controls for elemental mercury. The Department informed known stakeholders by email of this opportunity to comment. Responses from industry were generally positive or neutral since the restrictions that will be imposed on the export of mercury will continue to allow for the export of mercury that is, or is contained in, hazardous waste or hazardous recyclable material already regulated by the EIHWHRMR. Responses from environmental non-governmental organizations were supportive of the restrictions on the export of mercury.
A second 30-day online public consultation was held in May 2015 to detail the proposed regulatory amendments and describe the proposed restrictions on the export of mercury. The Department informed known stakeholders by email of this additional opportunity to comment. No comments related to the proposed restrictions on the export of mercury, or to the change to the listing for Mirex, were received.
The proposed Order was published in the Canada Gazette, Part I, followed by a 75-day public comment period. No comments were received that related to the listing of elemental mercury or the listing of Mirex.
For all three consultations, the Department sent emails directly to each of the four companies who had recently exported mercury regarding the opportunity to comment. However, no responses were received.
Exposure to mercury is known to have toxic effects on humans, ecosystems and wildlife. When released into the environment, it undergoes long-range atmospheric transport and accumulates in northern regions, in particular the Canadian Arctic. Consumption of fish or piscivorous (fish-eating) mammals with high levels of mercury is the primary route of human exposure to mercury. There is particular concern for those consuming large amounts of these foods, such as First Nations and Arctic Aboriginal peoples.
The Order will list mercury on the ECL, which will make those exports subject to the Regulations. In addition, along with amendments to the Regulations to set restrictions on the export of mercury, the Order will position Canada to ratify the Minamata Convention and contribute to global action to reduce mercury emissions. Since most of the mercury deposited in Canada comes from foreign sources, Canada requires global action to reduce emissions of mercury to have a positive outcome for Canadians.
Canada is not a producer of high-purity mercury. However, available information shows that exports of mercury from Canada take place by exporters who first import the mercury. The expected compliance costs imposed on the Canadian industry and consumers by the Order are expected to be negligible. The administrative costs due to the notification requirements are $80 per business per year for 88 companies.
Consultations were conducted on the Order. Responses from industry and environmental non-governmental organizations were generally positive or neutral.
Strategic environmental assessment
As required by The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary review was conducted which concluded that there will be no expected important environmental effects, either positive or negative; accordingly, a strategic environmental assessment is not required. (see footnote 12)
Implementation, enforcement and service standards
Since the Regulations are made under CEPA, enforcement officers will, when verifying compliance with the Regulations, apply the Compliance and Enforcement Policy for CEPA. The Policy also sets out the range of possible responses to alleged violations: warnings, directions, environmental protection compliance orders, ticketing, ministerial orders, injunctions, prosecution, and environmental protection alternative measures (which are an alternative to a court trial after the laying of charges for a CEPA violation). In addition, the Policy explains when the Department will resort to civil suits by the Crown for cost recovery.
When, following an inspection or an investigation, an enforcement officer discovers an alleged violation, the officer will choose the appropriate enforcement action based on the following factors:
- Nature of the alleged violation: This includes consideration of the damage to the environment, the intent of the alleged violator, whether it is a repeat violation, and whether an attempt has been made to conceal information or otherwise subvert the objectives and requirements of the Act.
- Effectiveness in achieving the desired result with the alleged violator: The desired result is compliance within the shortest possible time and with no further repetition of the violation. Factors to be considered include the violator’s history of compliance with the Act, willingness to cooperate with enforcement officers, and evidence of corrective action already taken.
- Consistency: Enforcement officers will consider how similar situations have been handled in determining the measures to be taken to enforce the Act.
The Department has an existing compliance promotion program associated with the current Regulations. This program provides a guidance document for exporters that helps determine whether their export activity is subject to the Regulations and, if so, what their obligations will be. Forms for export notification and permit application are also provided, though exporters are able to use their own templates provided all of the required data is presented. Where the necessary conditions are met, an exporter should expect approval and issuance of an export permit under the Regulations within 10 working days of the receipt of the completed permit application. An exporter should expect acknowledgement of a prior notification of export within 10 working days of the receipt of the completed prior notification of export.
Chemical Production Division
Department of the Environment
351 Saint-Joseph Boulevard, 11th Floor
Regulatory Analysis and Valuation Division
Department of the Environment
200 Sacré-Cœur Boulevard
S.C. 2004, c. 15, s. 31
S.C. 1999, c. 33
S.C. 1999, c. 33
S.C. 1999, c. 33
Nunavik Regional Board of Health and Social Services. Nunavik Child Development Study (NCDS): Summary of Results. 2011. Available online at http://www.nasivvik.ca/research/funded-research/nunavik-child-development/.
United Nations Environmental Programme. Global Mercury Assessment 2013. Available online at http://www.unep.org/PDF/PressReleases/GlobalMercuryAssessment2013.pdf.
Risk Management Strategy for Mercury. Environment Canada. 2010. Available online at http://www.ec.gc.ca/doc/mercure-mercury/1241/longdesc_eng.htm.
Chemical Abstracts Service (CAS) Registry Number 7439-97-6.
The Rotterdam Convention establishes a list of substances that have been banned or severely restricted by some Rotterdam Parties for health and/or environmental reasons and facilitates an information exchange between Parties in which the “prior informed consent” of the importing Party is required prior to the export of substances.
The Stockholm Convention is a global treaty restricting the exports of chemicals that remain intact in the environment for long periods, become widely distributed geographically, accumulate in the fatty tissue of humans and wildlife, and have adverse effects on human health or the environment.
Chemical Abstracts Service Registry Number (CAS RN) is the property of the American Chemical Society, and any use or redistribution, except as required in supporting regulatory requirements and/or for reports to the Government of Canada when the information and the reports are required by law or administrative policy, is not permitted without the prior, written permission of the American Chemical Society.
These restrictions refer to mixtures containing elemental mercury at a concentration of 95% or more by weight.
As per the Red Tape Reduction Regulations, these values are calculated using a 10-year time frame and discounted at 7% in 2012 dollars.
Information used in this computation was from a survey conducted in 2013. It was assumed that 11 companies, historically exporting hazardous wastes containing mercury, would not be exporting mercury with more than 95% mercury concentration by weight. Therefore, they are likely to be exempted from the Order. It was assumed that the remaining companies will not be exempted from the Order.
The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals can be found at http://www.ceaa.gc.ca/default.asp?lang=En&n=b3186435-1.