ARCHIVED — Vol. 146, No. 21 — October 10, 2012

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Registration

SOR/2012-186 September 20, 2012

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999

P.C. 2012-1087 September 20, 2012

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 October 1, 2011, a copy of the proposed Order Adding Toxic Substances to Schedule 1 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;

And whereas, pursuant to subsection 90(1) of that Act, the Governor in Council is satisfied that the substances set out in the annexed Order are toxic substances;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 90(1) of the Canadian Environmental Protection Act, 1999 (see footnote c), hereby makes the annexed Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999.

ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

AMENDMENT

1. Item 8 of Schedule 1 to the Canadian Environmental Protection Act, 1999 (see footnote 1) is replaced by the following:

8. Mercury and its compounds

COMING INTO FORCE

2. 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.)

1. Background

The Global Mercury Assessment, published by the United Nations Environment Programme (UNEP) in December 2002, concludes that all forms of mercury (including mercury compounds) cause a variety of significant adverse impacts on human health and the environment worldwide. (see footnote 2) Subsequently, in February 2009, the UNEP Governing Council made the decision to prepare a global, legally binding instrument on mercury and its compounds. The Government of Canada agrees with the Governing Council’s decision and has determined that the evidence provided in the UNEP global assessment is sufficient to conclude that mercury and its compounds have or may have an immediate or long-term harmful effect on the environment or its biological diversity and constitute or may constitute a danger to human health and the environment in accordance with section 64 of the Canadian Environmental Protection Act, 1999 (CEPA 1999 [“the Act”]).

The Government of Canada played an important role in the development of the UNEP global assessment, submitting research and analysis as well as monitoring data. This global assessment provides sufficient evidence warranting international action to reduce the risks posed by mercury and its compounds. Thus, it was decided that a separate Canadian assessment of mercury compounds was not necessary, due to the depth of international and Canadian data and analysis presented in the UNEP global assessment.

The Risk Management Strategy for Mercury, published in October 2010, outlines the Government of Canada’s objectives, priorities, current and anticipated actions, and monitoring programs in place to make an ongoing and meaningful contribution to mercury emission reductions domestically and internationally. (see footnote 3)

2. Issue

The proposed Regulations Respecting Products Containing Certain Substances Listed in Schedule 1 to the Canadian Environmental Protection Act, 1999 (hereinafter referred to as the “mercury-containing products regulations”), which were published in the Canada Gazette, Part Ⅰ, on February 26, 2011, would restrict the import, manufacture and sale of products containing mercury or one of its compounds, with some exemptions for essential products that have no viable alternatives (e.g. certain health, safety and research applications, including dental amalgam). (see footnote 4) The inclusion of products that contain mercury compounds (such as batteries) in the final mercury-containing products regulations is dependent upon the listing of mercury compounds in Schedule 1 to CEPA 1999.

3. Objectives

The Order Adding Toxic Substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 (hereinafter referred to as the Order) will add “Mercury and its compounds” to Schedule 1 to CEPA 1999 (the List of Toxic Substances). “Mercury” is listed as item 8 on the List of Toxic Substances. The Order made under subsection 90(1) of CEPA 1999 will amend item 8 of the List (which currently references only “Mercury”) in order to read “Mercury and its compounds.” The addition of mercury compounds to Schedule 1 to CEPA 1999 would allow the proposed mercury-containing products regulations to apply to these substances. Moreover, this addition would allow the Minister of the Environment and the Minister of Health (the ministers) to develop and implement additional risk management actions, as necessary, to manage the risks posed by mercury compounds.

4. Description

4.1 Substance description

Mercury occurs naturally in the environment and is also released as a result of human activity. Mercury is found in three general forms:

  • pure mercury (also known as elemental or metallic mercury);
  • inorganic mercury compounds; and
  • organic mercury compounds.

Mercury and its compounds are part of a global cycle and contribute to the environmental loadings of more harmful forms of mercury. For example, some micro-organisms and natural processes can change mercury or one of its compounds in the environment from one form to another. Methyl mercury, which is formed in the environment from the methylation of inorganic mercury, is of particular concern since it can build up (bioaccumulate and biomagnify) in many edible fish (freshwater and saltwater), and marine mammals, to levels that are many times greater than those in the surrounding water.

In addition, mercury and its compounds tend to accumulate in polar regions, and concentrations measured in Canada’s Arctic lakes have increased two- to three-fold over the past century.

Most domestic uses of mercury compounds and domestic manufacturing of products containing them have been phased out, or are being phased out, due to concerns about toxicity. However, some products that may contain mercury compounds are still imported into the Canadian marketplace; these products include catalysts in polyurethane manufacturing and various types of batteries (e.g. alkaline cell, manganese oxide, mercuric oxide, silver oxide, zinc air and primary cell batteries). It is estimated that, in 2008, around 900 kilograms of mercury compounds were imported into Canada in batteries. At the end-of-life stage, it is estimated that these compounds used in batteries may enter the environment or be disposed of in landfill sites, where they may leach into water or be emitted into the air over time. (see footnote 5)

Historically, mercury compounds have been used in a variety of products, such as fireworks, explosives, pharmaceuticals, agricultural applications, and pesticides, and in the treatment of seeds, furs and pelts. They have also been used as pigments, preservatives, insecticides, fungicides, general antibiotics and medicine.

4.2 Health and environmental effects of mercury compounds

All forms of mercury compounds are toxic. Human exposure can cause brain, nerve, kidney, lung or cardiovascular damage, or, in extreme cases, coma or death. The primary route of human exposure to mercury compounds is by consumption of fish or fish-eating mammals with heightened levels of methyl mercury. Children exposed to methyl mercury while in the womb may experience developmental difficulties, delays in walking, lack of coordination or blindness.

There is particular concern for subsistence fishers who eat large quantities of fish as part of their traditional lifestyles. Environment Canada reports that high levels of mercury compounds are responsible for many recreational fish advisories in Canada each year, and levels of mercury compounds found in many freshwater fish and lakes surpass the guidelines for human subsistence or commercial sale. (see footnote 6) Also, high concentrations of mercury compounds in fish are harmful to fish-eating wildlife. To illustrate, the reproduction and behaviour of bird species are generally affected by exposure to methyl mercury, while mammals most often suffer neurological effects. The severity of the toxic effects experienced by humans and other organisms depends on the degree of exposure, and may range from slight impairment to reproductive failure or death. (see footnote 7)

5. Consultation

On June 12, 2010, a Notice of intent to recommend that mercury compounds be added to Schedule 1 of the Canadian Environmental Protection Act, 1999 under subsection 90(1) of the Act (hereinafter referred to as the Notice of Intent) was published in the Canada Gazette, Part Ⅰ, for a 60-day public comment period. Prior to this publication, Environment Canada and Health Canada informed the governments of the provinces and territories through the National Advisory Committee of CEPA 1999 (CEPA NAC) of the release of the Notice of Intent and of the associated public comment period. No comments were received from CEPA NAC.

During the 60-day public comment period, a total of two submissions were received, one from an industry association and another from an electric utility company. All comments were considered in the development of the proposed Order.

Below is a summary of the comments received regarding the Notice of Intent, as well as the responses to these comments.

  • Comment: The industry association indicated that (1) the use of mercury compounds in vehicle manufacturing has decreased due to a phase-out by vehicle manufacturers; and (2) risk management of mercury and its compounds in Canada should be consistent with global approaches and give sufficient lead time for those impacted by potential regulatory actions.

    Response: The Government of Canada recently published the Risk Management Strategy for Mercury, which provides information to stakeholders concerning the objectives, priorities, current and anticipated actions, and monitoring programs in place to address the ongoing risks associated with mercury and its compounds. Proposed risk management instruments included in this strategy will be developed in consultation with industry and other impacted stakeholders. Issues related to lead time, implementation and alignment with other jurisdictions will be given due consideration throughout the risk management process.
  • Comment: The electric utility company suggested that methyl mercury should not be added to Schedule 1 to CEPA 1999, since it is already managed during electric dam construction through the Canadian Environmental Assessment Act, and exposure is low or will have a low impact after the construction of a dam.

    Response: Methyl mercury is one of the most harmful mercury compounds to humans and other organisms as it is persistent, bioaccumulative and toxic, readily entering the brain or crossing the placental barrier. Further, the presence of methyl mercury in the environment is not solely due to electric dam construction since it is formed by the general process of methylation of mercury, a naturally occurring process in the environment.

Consultation following prepublication of the Order in the Canada Gazette, Part Ⅰ, on October 1, 2011

On October 1, 2011, a proposed Order adding “Mercury and its compounds” to Schedule 1 to CEPA 1999 was published in the Canada Gazette, Part Ⅰ, for a 60-day public comment period. Environment Canada and Health Canada informed the governments of the provinces and territories through the Canadian Environmental Protection Act National Advisory Committee (CEPA NAC) of the publication of the proposed Order and of the associated public comment period. No comments were received from CEPA NAC.

During the 60-day public comment period, a total of four submissions were received: one from an industry association, one from a foreign government and two from Canadian citizens. All comments were considered in the development of the final Order.

Below is a summary of the comments received regarding the proposed Order, as well as the responses to these comments.

  • Comment: The industry association indicated that mercury compounds with their specific Chemical Abstracts Service Registry Numbers (CAS RNs) should be identified, and that specific mercury compounds determined to meet toxicity criteria set out in section 64 of CEPA 1999 should be listed individually in Schedule 1.

    Response: As all mercury compounds are determined to meet the criteria under section 64 of CEPA 1999, they are added to Schedule 1. Many precedents exist in Schedule 1 for listing all compounds of a given substance; for example, inorganic arsenic and inorganic cadmium compounds are listed as items 28 and 31, respectively. The Risk Management Strategy for Mercury outlines the proposed actions the Government of Canada would take to manage the risks posed by mercury and its compounds. Further, risk management instruments under CEPA 1999 are developed through a consultative process, whereby products containing or processes using mercury compounds are identified and addressed.
  • Comment: A foreign government provided comments on the proposed Order under the World Trade Organization (WTO) Agreement on Technical Barriers to Trade. The foreign government expressed concern that a risk management initiative targeting mercury compounds developed by the Government of Canada would target the natural presence of these substances. In addition, the foreign government indicated that, since international negotiations pertaining to a global, legally binding instrument to regulate mercury and its compounds have not yet concluded, unilateral measures undertaken by the Government of Canada may be inadvisable.

    Response: The addition of substances to Schedule 1 does not in itself result in any technical barriers to trade, and this formal legal step will allow for the development of regulatory risk management instruments under CEPA 1999. Notification of any regulatory or other risk management measures proposed by the Government of Canada that could pose a technical barrier to trade would be sent to the WTO. For instance, the WTO was notified in March 2011 of the publication of the proposed mercury-containing products regulations on February 26, 2011, in the Canada Gazette, Part Ⅰ. As all mercury compounds are determined to meet the criteria under section 64 of CEPA 1999, they are added to Schedule 1. Nevertheless, the natural presence of mercury compounds would be taken into consideration in the development of any risk management instrument targeting these substances, including the mercury-containing products regulations. With regard to the international negotiations, Canada is participating in the UNEP negotiations, scheduled to conclude in 2013, for a global, legally binding treaty on mercury, including mercury compounds. (see footnote 8) The addition of mercury compounds to Schedule 1 would allow Canada to take domestic action regarding mercury compounds, including action to satisfy Canada’s international obligations should Canada ratify the resulting treaty.
  • Comment: The Canadian citizens indicated that they support the addition of mercury compounds to Schedule 1 to CEPA 1999, stating that there is enough evidence to support the addition of mercury compounds to the List of Toxic Substances. In their comments, these citizens also advocated for (1) the use of the Virtual Elimination List under CEPA 1999 in relation to mercury and its compounds; and (2) holding discussions at the international stage to take mercury compounds (in addition to elemental mercury) into consideration.

    Response: The Government of Canada appreciates the detailed and supportive submissions received from the Canadian citizens. Pertinent points were raised in their submission:
    • (1) Regarding the Virtual Elimination List under CEPA 1999, this path forward would not be appropriate with respect to mercury and its compounds as mercury is a naturally occurring substance. Risk management instruments can help to limit anthropogenic releases of mercury and its compounds.
    • (2) Concerning discussions at the international stage, mercury and its compounds are already being discussed as part of the UNEP Intergovernmental Negotiating Committee process. The documentation used at the third session of the Intergovernmental Negotiating Committee, held in Nairobi, Kenya, from October 31 to November 4, 2011, addresses several mercury compounds specifically and contains general references to mercury compounds. The negotiations are planned to continue into 2013, so no conclusions can be drawn at this time.

6. Rationale

The Global Mercury Assessment (UNEP 2002) concludes that mercury compounds cause a variety of well-documented, significant adverse impacts on human health and the environment throughout the world. (see footnote 9) Mercury and its compounds are part of a global cycle and contribute to the environmental loadings of the more harmful forms of mercury, most notably methyl mercury, which is persistent in the environment, bioaccumulative (accumulates in organisms), and harmful to humans and other organisms.

On the basis of the evidence presented in the Global Mercury Assessment, it is concluded that mercury compounds meet all of the toxicity criteria set out in section 64 of CEPA 1999; that is to say, they are entering or may enter the environment in a quantity or concentration, or under conditions, that

  • (a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;

  • (b) constitute or may constitute a danger to the environment on which life depends; or

  • (c) constitute or may constitute a danger in Canada to human life or health.

Mercury compounds are thus recommended for addition to Schedule 1 to CEPA 1999.

6.1 Alternatives

6.1.1 Status quo

The Government of Canada considered the option of not adding mercury compounds to Schedule 1 (the status quo). However, the status quo would not allow for regulatory risk management action regarding mercury compounds and would limit the Government of Canada’s ability to manage the risks associated with these substances effectively. For example, under the status quo, the use of mercury compounds in batteries and polyurethane catalysts would not be regulated under the final mercury-containing products regulations.

In response to the broad international acceptance of the significant global adverse impacts associated with mercury compounds, the Government of Canada recognizes that the status quo would not allow for risk management action to be taken with respect to mercury compounds, as may be required, given that they meet the toxicity criteria set out in section 64 of CEPA 1999.

6.1.2 Regulatory option

Adding mercury compounds to Schedule 1 to CEPA 1999, by replacing item 8 (“Mercury”) with “Mercury and its compounds,” enables the development of regulations or other instruments to manage the risks to human health and the environment associated with mercury compounds. The addition of mercury compounds to Schedule 1 will also allow the Government of Canada to consider ratifying the global, legally binding instrument that will be proposed by the UNEP Intergovernmental Negotiating Committee to mitigate the international health and environmental risks associated with these substances. Therefore, the addition of mercury compounds to Schedule 1 to CEPA 1999 is the chosen option.

6.2 Benefits and costs

The Order does not impose any incremental impact (benefit or cost) on the public or other stakeholders, with no additional administrative or compliance burden to be incurred by any industry or small business. Adding mercury compounds to Schedule 1 to CEPA 1999 enables the ministers to develop regulations under the Act in relation to mercury compounds. The ministers may, however, choose to develop non-regulatory instruments, such as pollution prevention plans, environmental emergency plans, guidelines or codes of practice, in order to manage the human health and environmental risks posed by these substances. Further, the ministers may choose to develop instruments outside the purview of CEPA 1999 to help protect human health. The ministers will assess benefits and costs, and consult with the public and other stakeholders, during the development of risk management proposals. In fact, the Regulatory Impact Analysis Statement (RIAS) accompanying the Canada Gazette, Part Ⅰ, publication of the mercury-containing products regulations provides an assessment of benefits and costs as well as a summary of the stakeholder consultations conducted during the development of these proposed Regulations.

7. Implementation, enforcement and service standards

The Order adds mercury compounds to Schedule 1 to CEPA 1999, thereby allowing the ministers to recommend to the Governor in Council the making of regulations or other instruments intended to manage the risks to human health and the environment associated with mercury and its compounds. Hence, for this Order, developing an implementation plan or a compliance strategy, or establishing service standards, is not considered necessary. An appropriate assessment of implementation, compliance and enforcement will be undertaken during the development of instruments to manage the risks posed by mercury and its compounds. Such an assessment is included in the RIAS accompanying the Canada Gazette, Part Ⅰ, publication of the mercury-containing products regulations.

8. Contacts

Greg Carreau
Program Development and Engagement Division
Science and Risk Assessment Directorate
Science and Technology Branch
Environment Canada
Gatineau, Quebec
K1A 0H3
Substances Management Information Line:
1-800-567-1999 (toll-free in Canada)
819-953-7156 (outside of Canada)
Fax: 819-953-7155
Email: substances@ec.gc.ca

Markes Cormier
Risk Management Bureau
Safe Environments Directorate
Healthy Environments and Consumer Safety Branch
Health Canada
Ottawa, Ontario
K1A 0K9
Telephone: 613-957-8166
Fax: 613-952-8857
Email: markes.cormier@hc-sc.gc.ca

Footnote a
S.C. 2004, c. 15, s. 31

Footnote b
S.C. 1999, c. 33

Footnote c
S.C. 1999, c. 33

Footnote 1
S.C. 1999, c. 33

Footnote 2
The UNEP Global Mercury Assessment is available at www.chem.unep.ch/mercury/report/final%20assessment%20report.htm.

Footnote 3
Environment Canada and Health Canada (2010), Risk Management Strategy for Mercury: www.ec.gc.ca/doc/mercure-mercury/1241/index_e.htm.

Footnote 4
Canada Gazette, Part Ⅰ: www.gazette.gc.ca/rp-pr/p1/2011/2011-02-26/html/index-eng.html.

Footnote 5
Environment Canada (2009). ToxEcology, Socio-economic and Mass Balance Study for Mercury-Containing Products. This study is available from Environment Canada upon request.

Footnote 6
The following Environment Canada Web site contains more information on fish consumption advisories: www.ec.gc.ca/mercure-mercury/default.asp?lang=En&n=DCBE5083-1.

Footnote 7
Refer to the following Environment Canada Web site for more information: www.ec.gc.ca/mercure-mercury/Default.asp?lang=En&n=DB6D2996-1.

Footnote 8
Refer to the following UNEP Web site for more information: www.unep.org/hazardoussubstances/MercuryNot/MercuryNegotiations/tabid/3320/language/en-US/Default.aspx.

Footnote 9
Once again, the UNEP Global Mercury Assessment is available at www.chem.unep.ch/mercury/report/final%20assessment%20report.htm.