Regulations Repealing the Chlor-Alkali Mercury Release Regulations: SOR/2019-88
Canada Gazette, Part II, Volume 153, Number 8
Registration
SOR/2019-88 April 8, 2019
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
P.C. 2019-265 April 5, 2019
Whereas, pursuant to subsection 332(1) footnote a of the Canadian Environmental Protection Act, 1999 footnote b, the Minister of the Environment published in the Canada Gazette, Part I, on April 28, 2018, a copy of the proposed Regulations Repealing the Chlor-Alkali Mercury Release Regulations, in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Regulations 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 93(3) of that Act, the National Advisory Committee has been given an opportunity to provide its advice under section 6 footnote c of that Act;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment and the Minister of Health, pursuant to subsection 93(1) of the Canadian Environmental Protection Act, 1999 footnote b, makes the annexed Regulations Repealing the Chlor-Alkali Mercury Release Regulations.
Regulations Repealing the Chlor-Alkali Mercury Release Regulations
Repeal
1 The Chlor-Alkali Mercury Release Regulations footnote 1 are repealed.
Coming into Force
2 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the regulations.)
Issues
The Chlor-Alkali Mercury Liquid Effluent Regulations under the Fisheries Act were made to authorize the deposit of mercury into water from chlor-alkali facilities using the mercury cell process up to a prescribed daily limit. In particular, these Regulations were made as an exemption to the prohibition, set out in subsection 36(3) of the Fisheries Act, of any deposit of a deleterious substance in water frequented by fish (referred to as the general prohibition under the Fisheries Act). The Chlor-Alkali Mercury Release Regulations, made under the Canadian Environmental Protection Act, 1999, were subsequently established to limit the release of mercury into air from chlor-alkali facilities using the mercury cell process.
Chlor-alkali facilities employing the mercury cell process no longer exist or operate in Canada. Mercury cell process technology is being phased out worldwide and replaced by new and alternative production processes that do not involve the deposit or release of mercury. Therefore, the Chlor-Alkali Mercury Release Regulations no longer serve any purpose, since there is no longer a need in Canada to regulate chlor-alkali facilities using the mercury cell process.
In addition, Canada is a party to the Minamata Convention on Mercury (the Minamata Convention), which prohibits the use of mercury or mercury compounds in several industrial processes, including chlor-alkali production. footnote 2 The repeal of the Chlor-Alkali Mercury Liquid Effluent Regulations, which took effect on April 23, 2018, helps support the federal government in complying with its international obligations under the Minamata Convention, for it ensures that any production of chlor-alkali employing the mercury cell process is subject to the general prohibition under the Fisheries Act. The Chlor-Alkali Mercury Release Regulations are being repealed because, from now on, the full application of the general prohibition under the Fisheries Act effectively prevents any future operation of chlor-alkali mercury cell facilities in Canada, rendering these Regulations obsolete.
Background
The Chlor-Alkali Mercury Liquid Effluent Regulations under the Fisheries Act, and the Chlor-Alkali Mercury Release Regulations under the Canadian Environmental Protection Act, 1999, came into effect in 1972 and 1978, respectively. The objectives of these regulations have been to respectively limit the amount of mercury effluent deposited into water and to control mercury emissions to ambient air from any chlor-alkali facility using the mercury cell process. Together, these two regulations established a daily limit of 2.5 g of mercury liquid effluent per tonne of chlorine produced by any chlor-alkali facility and a daily limit of 1.68 kg of mercury release per facility into ambient air. In addition, both regulations required facilities to conduct daily measurements of the amount of mercury deposited and released into water and air, and banned the direct release of mercury into ambient air from tanks.
Traditionally, in Canada, chlor-alkali facilities have used mercury cell, diaphragm cell, or membrane cell technologies to produce chlorine, caustic soda (sodium hydroxide), and hydrogen through the electrolysis of sodium chloride. footnote 3 Chlorine and caustic soda are substances used in various industrial applications including the production of soaps, detergents, plastics, glass, petrochemicals and fertilizers. All chlor-alkali facilities use the same three basic raw materials for production: brine, water, and electricity. For all three technological processes, chloride ions are oxidized and chlorine is formed during the electrolysis process. footnote 4
The two regulations mentioned above controlled all deposits and releases of mercury from chlor-alkali facilities. They were intended to limit the negative impacts to human health and to the environment and to respond to public concerns. Human exposure to mercury, usually through the consumption of contaminated fish or fish-eating mammals, can result in damage to the brain, heart, kidneys, lungs, and immune system. The contamination of water can result in animals, usually fish, experiencing early death, reduced reproduction, slower growth and development, and abnormal behaviour.
Even though chlorine and caustic soda are still manufactured in Canada, chlor-alkali mercury cell facilities are no longer operating. The last facility in Canada employing the mercury cell process closed in 2008. As mercury cell process technology becomes outdated and phased out worldwide, the production process is being replaced with diaphragm cell or membrane cell technologies. The use of diaphragm cell or membrane cell technologies does not involve the deposit or release of mercury in effluents, emissions, solid wastes, or products.
Objectives
The objective of the Regulations Repealing the Chlor-Alkali Mercury Release Regulations (the repealing Regulations) is to repeal the Chlor-Alkali Mercury Release Regulations, given that they are obsolete.
Description
The repealing Regulations repeal the Chlor-Alkali Mercury Release Regulations.
The repealing Regulations are accompanied by consequential amendments to the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) [the Designation Regulations]. The Chlor-Alkali Mercury Release Regulations were listed as item 2 in the schedule to the Designation Regulations and, therefore, the Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) repeal that item to reflect the repeal of the Chlor-Alkali Mercury Release Regulations.
“One-for-One” Rule
The repealing Regulations reduce the number of federal environmental regulations, removing one regulatory title from the Minister’s portfolio under the “One-for-One” Rule. Further, the repealing Regulations are not expected to result in any administrative impacts on businesses or any other stakeholders.
Small business lens
The small business lens does not apply to the repealing Regulations, as they are not expected to impact any stakeholders.
Consultation
The repealing Regulations have not resulted in stakeholder opposition, as no chlor-alkali facility using the mercury cell process has operated in Canada since 2008. Further, relevant stakeholders were informed and engaged with respect to the global prohibition of chlor-alkali production employing the mercury cell process during negotiations relating to the text of the Minamata Convention.
Prior to prepublication in the Canada Gazette, Part I, the Department of the Environment informed the governments of the provinces and territories through the Canadian Environmental Protection Act National Advisory Committee (CEPA NAC) about the proposed repealing Regulations and provided them with an opportunity to comment. No comments were received from CEPA NAC members prior to, nor during, the prepublication consultation period.
The proposed Regulations Repealing the Chlor-Alkali Mercury Release Regulations were published in the Canada Gazette, Part I, on April 28, 2018, followed by a 60-day public comment period. During the comment period, two written comments were received: one from a grouping of Indigenous councils, which is supportive of the proposed repealing Regulations, and one joint comment from two academics, who stated that it is important to reiterate Canada’s active role in the global banning of chlor-alkali mercury release.
Rationale
The Government of Canada has repealed the Chlor-Alkali Mercury Liquid Effluent Regulations, which were made as an exemption to the general prohibition under the Fisheries Act. The removal of this exemption from the general prohibition under the Fisheries Act prohibits the deposit of mercury effluent in water frequented by fish by chlor-alkali facilities. Therefore, the control of releases of mercury into air from these facilities is no longer required.
The potential risk of chlor-alkali mercury cell plants operating in Canada in the future is also expected to be minimized by the ongoing phase-out of mercury cell technology worldwide, as well as the availability of cost-effective and more environmentally friendly alternatives. In addition, provincial and territorial governments are able to prevent the opening of chlor-alkali mercury cell facilities in their respective jurisdictions. Government authority can be exercised namely through the use of existing facility approval systems, environmental impact assessment legislation, and construction and operating permit systems.
The repeal of the Chlor-Alkali Mercury Liquid Effluent Regulations took effect on April 23, 2018. This repeal helps support the federal government in complying with its international obligations under the Minamata Convention, which is a legally binding instrument. Given that this repeal has resulted in the full application of the general prohibition, respecting mercury deposit, under the Fisheries Act, the Chlor-Alkali Mercury Release Regulations under the Canadian Environmental Protection Act, 1999 can be repealed as well. Since no chlor-alkali facilities employing the mercury cell process exist in Canada, the repealing Regulations are not expected to impact any industry stakeholders, and they are not expected to introduce any administrative or compliance costs to businesses, Canadians, the federal government, or any other stakeholder.
Implementation, enforcement and service standards
The repealing Regulations come into force on the day on which they are registered. There are no related service standards, and no implementation strategy specific to the repealing Regulations is necessary, given that they are not expected to impact any stakeholders.
Contacts
Nicole Folliet
Director
Chemical Production Division
Industrial Sectors, Chemicals, and Waste Directorate
Environmental Protection Branch
Department of the Environment
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Email: ec.pgpc-dppc-cmp-cpd.ec@canada.ca
Matthew Watkinson
Director
Regulatory Analysis and Valuation Division
Economic Analysis Directorate
Strategic Policy Branch
Department of the Environment
200 Sacré-Cœur Boulevard
Gatineau, Quebec
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca