Proposal to control the trade of mercury: consultation document

Draft for discussion

September 2014

1. Introduction

Purpose and scope

The intent of this consultation document is to give interested parties an opportunity to provide input on the proposal to control Canada’s trade in mercury.^Footnote1

Specific objectives include:

• Informing stakeholders of proposed regulatory options; and
• Seeking stakeholders’ input to the development of the regulatory measures outlined in section 6 of this document.

Consultation process

The Government of Canada is committed to providing Canadians with the opportunity to take part in consultations at all stages of regulatory development. All interested parties may comment on this document by writing--via mail, email or fax--to the coordinates provided in section 9 of this document.

It is expected that potential interested parties may include non-governmental organizations, provincial, territorial and federal government departments, associations, companies and facilities interested or involved in the trade (export or import) or use of mercury.

2. Issue

Mercury is a heavy metal naturally present in the environment. It can be released due to natural processes or human activities. In the environment, mercury can be converted to methyl mercury, the form of mercury to which humans are most often exposed, primarily through consumption of fish. Mercury releases pose significant risks to Canada’s environment and the health of its citizens (Environment Canada and Health Canada, 2010).

The Minamata Convention on Mercury (the Convention) is a global treaty to protect human health and the environment from the adverse effects of mercury. The treaty text was agreed to at the fifth session of the Intergovernmental Negotiating Committee in Geneva, Switzerland, in January 2013, and the Convention was opened for signature in Japan in October 2013 (United Nations Environment Programme (UNEP), 2014). To date, the Convention has been signed by 102 governments, including Canada which signed on October 10, 2013, and ratified by the United States of America on November 6, 2013.

The provisions within the Convention address all aspects of the mercury lifecycle, including mercury supply sources, mercury trade, mercury-added products, manufacturing processes in which mercury or mercury compounds are used, mercury use in artisanal small-scale gold mining, mercury emissions and releases from industrial activities, mercury storage and wastes, and mercury-contaminated sites.

The Convention contains specific requirements on trade of mercury within Article 3, Mercury supply sources and trade. Once the Convention enters into force, mercury exports from Parties will only be permitted for uses allowed under the Convention or for interim storage and will be subject to a process of prior written consent or general notification. Export of mercury for environmentally sound disposal is allowed under the treaty in Article 11, Mercury wastes. The Convention will require the prohibition of mercury imports from non-Parties if the mercury is from sources that are not allowed by the Convention.  At this time, the Government of Canada is considering options to control the export of mercury. The outcome of these consultations will help inform future actions on trade in mercury.

3. Background

Canadian mercury import and export

Data on Canadian trade indicate that while Canada has not been a major importer or exporter historically, significant import and export have occurred in recent years. This increase in mercury trade may be the result of mercury’s being brokered through Canada instead of the United States following the United States Mercury Export Ban Act of 2008, which entered into effect in January 2013. To illustrate, in the first quarter of 2014, Canada imported close to 100 tonnes of mercury from Malaysia (Canadian International Merchandise Trade Database (CIMTD), 2014).

Figure 1 - Canadian Mercury Imports and Exports

Source: Canadian International Merchandise Trade Database (CIMTD, 2014)

4. Existing domestic measures for mercury trade

There are currently no measures restricting the trade of mercury in Canada; however, the following federal risk management measures address the export of mercury compounds or the use of elemental mercury and mercury compounds in products.

Export Control List, Schedule 3 of the Canadian Environmental Protection Act, 1999

Mercury compounds, including inorganic mercury compounds, alkyl mercury compounds and alkyloxyalkyl and aryl mercury compounds, are included in Part 2 of the Export Control List of the Canadian Environmental Protection Act, 1999 (CEPA). A notification^Footnote2 must be submitted as per the Export of Substances on the Export Control List Regulations prior to the export of mercury compounds. CEPA also requires the Minister of the Environment to publish the name or specifications of the substance, the name of the exporter and the name of the country of destination in the Canadian Environmental Protection Act Registry. Annual reports on the export of substances listed on the Export Control List are available.

Proposed regulations on products containing mercury^Footnote3

Environment Canada has proposed regulations to prohibit the import and manufacture of all mercury-containing products unless these products are specifically excluded or exempted (usually with a mercury concentration limit) from the regulations. These regulations will not target the import of mercury directly, but they are expected to reduce the need to import mercury and the import of products containing mercury once the final regulations come into effect.

5. Existing international measures for mercury trade

United States Mercury Export Ban Act of 2008

The Mercury Export Ban Act of 2008 (PDF 136 kB) was signed into law on October 14, 2008. The Act includes provisions on both elemental mercury^Footnote4 exports and long-term elemental mercury management and storage. Because the United States was ranked as one of the world's top exporters of mercury, implementation of the act is expected to remove a significant amount of mercury from the global market. However, while the export of elemental mercury from the United States has been generally prohibited since January 1, 2013, exports are still allowed under specific conditions (United States Environmental Protection Agency (US EPA), 2014).

European Union mercury export ban

On October 22, 2008, the European Union legislator adopted Regulation (EC) No 1102/2008 (PDF 74 kB) on the banning of exports of metallic mercury and certain mercury compounds and mixtures and the safe storage of metallic mercury. The export ban entered into force on March 15, 2011. Reporting obligations and an information exchange established under the Regulation allow for assessing the effectiveness of the ban and its impact on the global mercury market (EUR-Lex, 2010). Note that the Regulation prohibits the export of metallic mercury (Hg, Chemical Abstracts Service registry number (CAS RN) 7439-97-6), cinnabar ore, mercury (I) chloride (Hg₂Cl₂, CAS RN 10112-91-1), mercury (II) oxide (HgO, CAS RN 21908-53-2) and mixtures of metallic mercury with other substances, including alloys of mercury, with a mercury concentration of at least 95% weight by weight from the European Community; however, the Regulation does not prohibit European Union Member States from exporting these substances to other Member States.

6. Proposed regulatory measures on export

Environment Canada is proposing to implement regulatory measures to control the export of mercury from Canada. This proposal takes into consideration three aspects impacting the global trade of mercury. Firstly, Canada would be required to conform to the trade requirements of the Minamata Convention on Mercury, should Canada ratify it and once the treaty enters into force. Secondly, Canada supports taking action to minimize the global supply of mercury, considering the harmful effects of this toxic substance. Thirdly, both the United States and the European Union, formerly major exporters of elemental mercury, have implemented export bans on elemental mercury.

Exclusions

In line with the Minamata Convention, the proposed export controls are not intended to apply to:

• mercury wastes, since these are managed under Canada’s Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, which address the requirements of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
• mercury-containing products
• mercury to be used for laboratory-scale research or as a reference standard
• naturally occurring trace quantities of mercury present in non-mercury metals, ores or mineral products; or
• unintentional trace quantities of mercury in chemical products

Proposal

Environment Canada proposes to implement regulatory controls on the trade of mercury under CEPA to meet the requirements of Article 3 of the Minamata Convention. Under the Convention, the export of mercury is only allowed:

• upon written consent from importing Parties ^Footnote5 and non-Parties and
• upon additional detailed certification from importing non-Parties and

only for the purposes of:

• a use allowed ^Footnote6 under the Minamata Convention or
• environmentally sound, interim storage prior to a use allowed

Two approaches are being considered:

• the Export Control List and the Export of Substances on the Export Control List Regulations could be amended in order to implement proposed regulatory controls in line with the Convention. This approach may require that controls on imports of mercury are also implemented to meet Canada’s treaty import obligations; or
• Environment Canada could consider implementing stronger requirements by prohibiting the export of mercury intended for any use, similar to the mercury export bans in the United States and European Union. This would ensure that Canada reduces the availability of mercury in international markets to the extent possible. This would include prohibiting the export of mercury for use in artisanal and small-scale gold mining (ASGM).  Under this approach, the Convention would not require Canada to implement controls on imports of mercury.

Considerations

Under the Minamata Convention, an importing country is required to provide its approval to receive the mercury from an exporting country through a process of prior written consent. The Convention also allows an exporting country to rely on general notifications submitted by importing countries to the Secretariat of the Minamata Convention to meet the requirements of the written consent process. The Convention Secretariat will make these notifications available on a public register.

Under the Minamata Convention, exports of mercury are only allowed for certain uses. If Environment Canada opts to restrict the export of mercury as per approach (i), above, exports would be prohibited if they did not meet the requirements of the Minamata Convention.  According to the treaty obligations, the importing country’s prior informed consent would be required for mercury exports.

Exporters of mercury may also have to provide prior notification of export with information concerning the export and destination.  The information could include identification of the importer and exporter, the quantity of mercury and the foreseen use in the importing country.  Some exports of mercury could be subject to a permitting mechanism to ensure the prior informed consent of the importing country and that the use of the mercury is allowed under the Minamata Convention.  A permitting mechanism would require submission of administrative details for the proposed export in the form of a permit application, and an exporter would have to obtain a permit before exporting.

If Canada opts for this level of export control, Environment Canada may need to introduce additional regulatory controls on the import of mercury from countries not Party to the Minamata Convention in order to comply with the treaty obligations. These import controls would prohibit import of mercury which had been obtained from sources identified as “not allowed” under the Minamata Convention.  In addition to these regulatory controls on the import of mercury from non-Parties, countries who are Party to the Minamata Convention would not allow imports of mercury into Canada except in cases where the mercury was for an allowable use that Canada had registered for.

If Environment Canada opts to prohibit the export of mercury intended for any use, as per approach (ii) above, it is possible that, once the prohibition enters into force, Canada will have an excess supply of mercury. Canada is unlikely to have the capacity to properly store this mercury on a long-term basis pending an allowed use. If a market for this mercury is not found within Canadian borders, it will likely have to be disposed of in an environmentally sound manner. Under this scenario, additional regulatory controls on the import of mercury may not be necessary in order to comply with the Minamata Convention.

Notification and record keeping requirements

If export and import controls are implemented, as per approach (i) above, the proposed regulations would require that exporters provide notification prior to exporting and to supply certain information for all exports of mercury. This is expected to include, at the minimum, the name of the importer and exporter as well as information on quantity of mercury exported and the destination.

There will be no periodic (annual, quarterly, etc.) reporting burden established through the export controls because Environment Canada believes that the information to be provided in the prior notification of export will be sufficient for Canada to meet any international or domestic obligations for reporting on its export activity.

If a prohibition is implemented, as per approach (ii) above, neither notification nor record-keeping requirements are expected since the export of mercury for use would no longer occur. Any transboundary movement of mercury waste for final disposal would continue to be managed under Canada’s Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and could also require notification prior to export.

In addition to seeking comments on the above proposed approaches, Environment Canada also encourages self-identification of facilities that are exporters and/or importers of mercury.

Administrative burden

On October 1, 2012, the Government of Canada released the Red Tape Reduction Action Plan report. This action plan details regulatory reforms the government is putting in place to reduce the administrative burden on businesses and consider the regulatory impact on small businesses. 

It is possible that small businesses could be exporting or importing mercury and would therefore be impacted by export and import controls. A small business is defined by the Treasury Board of Canada as any business, including its affiliates, that has fewer than 100 employees or between $30,000 and $5 million in annual gross revenues. Through this consultation process, Environment Canada also encourages self-identification of facilities that are small businesses.

Coming into effect

It is proposed that any regulatory measure would come into effect immediately upon publication of the final regulatory measures.

7. Economic considerations

Trade value

The trade of mercury has grown in Canada in recent years. While the value of its export (including re-exports) exceeded values of C$1,000,000 in 2011 and 2012, the value of annual exports for years before 2011 was under C$100,000, and the majority of these exports were going to the United States.

Figure 2 - Value of Canadian Exports of Mercury

Source: Canadian International Merchandise Trade Database (CIMTD, 2014)

8. Information gaps and uncertainties

Surplus mercury

It is unknown at this time the extent to which stockpiles of mercury exist in Canada. The demand for mercury for domestic uses continues to decrease, and as such, it is expected that the majority of the mercury imported is to be re-exported and resold at a later date.

Long-term storage

The extent to which Canada has the capacity to store mercury in an environmentally sound manner is currently unknown. If an excess amount of mercury is available in Canada at a time at which its export would be prohibited, it is unlikely that Canada would have the capacity to store this mercury on a long-term basis. As such, the excess mercury may have to be disposed of in an environmentally sound manner or exported, as a waste, for disposal.

9. Next steps

A 30-day public comment period will follow the publication of this consultation document. All comments received during the comment period will be taken into consideration when developing the regulatory measure.

Anyone wishing to self-identify as a small business. a mercury exporter or a mercury importer may submit this information along with their comments to the address below.

The proposed regulatory measure is expected to be published in the Canada Gazette, Part I, in late 2015, followed by a 75-day public comment period. The final regulatory measure is planned for publication in the Canada Gazette, Part II, in late 2016.

Please submit your comments to the Director, Chemical Production Division, by October 12, 2014. Environment Canada welcomes the distribution of this consultation document to any interested party.

Pursuant to section 313 of CEPA, any person who provides information to the Minister of the Environment under CEPA may submit with the information a request that it be treated as confidential. Comments and information submissions on this consultation should be provided by mail, email or fax to the following:

10. References

CIMTD. (2014). Canadian International Merchandise Trade Database. Retrieved March 2014, from Statistics Canada

Environment Canada. (2011, February 26). Regulations Respecting Products Containing Certain Substances Listed in Schedule 1 to the Canadian Environmental Protection Act, 1999 Retrieved May 28, 2014, from Canada Gazette

Environment Canada and Health Canada. (2010). Risk Management Strategy for Mercury (PDF 3.12 MB). Retrieved May 7, 2014, from Government of Canada Publications.

EUR-Lex. (2010, July 12). Communication from the Commission to the European Parliament and the Council on the review of the Community Strategy Concerning Mercury. Retrieved May 6, 2014, from EUR-Lex Access to European Union.

United Nations Environment Programme (UNEP). (2014). Minamata Convention on Mercury Retrieved May 6, 2014.

United States Environmental Protection Agency (US EPA). (2014). Mercury Laws and Regulations Retrieved May 6, 2014, from United States Environmental Protection Agency.