Development of Regulatory Options for the Export and Import of Prescribed Non-Hazardous Wastes Destined for Final Disposal

August 2000

Table of Contents

1. INTRODUCTION
2. PROJECT NOTIFICATION / CONSULTATION ACTIVITIES
   2.1 Notice of Current Work
   2.2 Stakeholder Contact List
   2.3 Contact Survey Work
   2.4 Stakeholder Consultation Sessions
   2.5 Other Initiatives
   2.6 Next Steps
3. REGULATORY / POLICY BACKGROUND
   3.1 Basel Convention
   3.2 OECD Actions Concerning Transfrontier Movements
   3.3 Canada - U.S.A. Agreement on Hazardous Waste
   3.4 Export and Import of Hazardous Wastes Regulations
   3.5 Canadian Environment Protection Act
   3.6 Provincial Control of NHW Movements
   3.7 Current U.S. Initiatives Towards Regulating NHW Movements
   3.8 U.S. EPA RCRA Subtitle D Regulations
   3.9 European Community Council Directives
4. BACKGROUND STUDIES AND REPORTS
   4.1 1993 Ontario Export Study
   4.2 1994 RCO Policy Forum
   4.3 1995 Study of Transboundary Movements
   4.4 1995 Pilot Voluntary Notification System
   4.5 1997 Report of the Auditor General of Canada
   4.6 1997 Assessment of Trade in Wastes/Recyclables
   4.7 Report of Solid Waste Landfilled in Michigan
   4.8 Summary
5. ANALYSIS OF EXPORTS/IMPORTS OF NON-HAZARDOUS WASTES
   5.1 Newfoundland
   5.2 Prince Edward Island
   5.3 Nova Scotia
   5.4 New Brunswick
   5.5 Quebec
   5.6 Ontario
       5.6.1 Ontario Waste Exports
       5.6.2 Ontario Waste Imports
   5.7 Manitoba
   5.8 Saskatchewan
   5.9 Alberta
   5.10 British Columbia
   5.11 Summary
   5.12 Factors Influencing NHW Transboundary Flows
   5.13 Trade in Recyclable Materials
6. DEFINITIONAL ISSUES AND WASTE REDUCTION PLANS
   6.1 Prescribed Waste
       6.1.1 Define Prescribed Wastes as Any Material that is Not Hazardous
       6.1.2 Define Prescribed Wastes by Market Value
       6.1.3 Define Prescribed Waste using Pre-Established Content Limits
       6.1.4 Define Prescribed Non-Hazardous Wastes by Listing
   6.2 Final Disposal
       6.2.1 Define Final Disposal as per EIHW Regulations
       6.2.2 Define a Final Disposal Facility as Any Process taking Unsorted and Possibly Unprocessed Waste
   6.3 Waste Reduction Planning
       6.3.1 Reliance on Current Government Programs
       6.3.2 Mandatory Submission of Waste Reduction Plans with the Notice of Intent
       6.3.3 Sector-Focused Requirements for Waste Reduction Plans
7. PRIOR INFORMED CONSENT & MANIFEST APPROACHES
   7.1 Prior Informed Consent (PIC) Procedures
       7.1.1 Public Consultation
       7.1.2 Provincial/Municipal Levels of Involvement
       7.1.3 Frequency of PIC Applications
       7.1.4 Documentation Relative to Final Disposal Site
       7.1.5 Waste Quantities
       7.1.6 Other Issues
   7.2 Tracking and Manifest Requirements
       7.2.1 Voluntary vs. Regulated Declarations
       7.2.2 Degree of Public Disclosure
       7.2.3 Electronic vs. Paper Based Reporting
       7.2.4 Frequency of Reporting
       7.2.5 Degree of Reporting
8. REGULATORY MANAGEMENT OPTIONS
   8.1 Intensive Regulatory Coverage/Application
   8.2 Nominal Regulatory Coverage/Application
   8.3 Intermediate Regulatory Coverage/Application

APPENDICES

Appendix A  Notice and Background Description
Appendix B  Stakeholder Contact List
Appendix C  Contact Survey Form
Appendix D  Minutes from Stakeholder Consultation Sessions
Appendix E  Past Options Identified for Controls on Transboundary Movements

1.0 INTRODUCTION

This discussion paper is in support of an initiative from the Transboundary Movement Division of Environment Canada for the Development of Regulatory Options for the Export and Import of Prescribed Non-Hazardous Wastes Destined for Final Disposal. This document has been prepared by SNC-Lavalin Engineers & Constructors and the law firm of McCarthy Tétrault. It should be noted that there is no intention to regulate the export and import of non-hazardous recyclable materials.

A wide range of hazardous and non-hazardous wastes currently move between many countries, including Canada. The main destination for such materials exported from Canada is the United States, although Asia and to a lesser extent Europe and Mexico are also involved. Material imports are further understood to be primarily received from the United States.

It is the intention of the federal government to establish a regulatory framework for the transboundary movement of prescribed non-hazardous wastes (NHW) destined for final disposal. Several regulatory and policy developments form the basis for this initiative. As discussed in Section 3 of this paper, international obligations have, for example, been set in place by the Basel Convention as well as by associated actions of the OECD. Supportive amendments to the Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste have also been made and most recently amendments to the Canadian Environmental Protection Act (CEPA) have set the Canadian legislative foundation for this initiative.

This discussion paper actually represents the commencement of the third step in the development of these regulations. In 1994/5, an interim voluntary notification system was established by Environment Canada to gain insight into issues related to NHW transboundary movements. This was followed by the completion of supportive amendments to CEPA, as noted above.

Section 2 of this report outlines the notification/consultation activities associated with this project. Section 3 discusses the relevant background regulatory environment and Section 4 reviews associated studies/initiatives previously undertaken on the subject of transboundary movements. Section 5 presents a current analysis of NHW exports and imports. Section 6 discusses certain key definitional issues with the proposed regulations and Section 7 reviews options related to prior informed consent and tracking/manifest procedures. This document concludes with an overview of potential regulatory management options in Section 8.

2.0 PROJECT NOTIFICATION / CONSULTATION ACTIVITIES

At project commencement, several activities were undertaken in order to communicate with potential stakeholders regarding the scope and intended purpose of the new regulations and to gather relevant background information. A Notice of Current Work and a stakeholder contact list were assembled and contact survey work was completed. These activities were followed up by several stakeholder consultation sessions. Additional consultation activities are further planned following release of this discussion paper, all as described in this section.

2.1 Notice of Current Work

Immediately after start of this project, a Notice of Current Work was prepared to assist in promoting awareness of the undertaking. The Notice also served to identify those wishing to be kept informed or who could speak to the issues of concern. A copy of the prepared Notice can be found in Appendix A. It was distributed to all those contacted during the initial survey exercise (Section 2.3) as well as to all attendees at the stakeholder consultation sessions (Section 2.4). Associated recipients are identified in Appendix B.

The Notice was further made available at various booths at the December, 1999 Canadian Solid Waste Expo in Toronto. It was additionally distributed with the assistance of several agencies and associations through postings on web-sites and by electronic mailings. The Ontario Waste Management Association (OWMA) and the Solid Waste Association of North America (SWANA), for example, distributed the Notice to association members. A French version of the Notice, prepared in advance of the Montreal stakeholder consultation sessions (see Section 2.4, below), is also in Appendix A.

As a supplementary tool to the Notice, a two page background project description prepared by Environment Canada additionally received some distribution to stakeholders. This document is further provided in Appendix A.

2.2 Stakeholder Contact List

A list of potential stakeholders was prepared at the commencement of the project. Enhanced during subsequent notification and consultation activities, the list in its current form is provided in Appendix B.

As indicated therein, contact was made with all provincial environment agencies as well as with various federal government departments, municipal entities, private industry, waste management and recycling associations and non-governmental organizations. Contacts were also made in the United States, at the state and federal levels. References are provided on the contact list to show: those contacted during initial survey work; participants in the February/March 2000 consultation sessions; and, others who have expressed a desire to be kept informed on the development of the proposed regulations.

2.3 Contact Survey Work

In order to assist in background information gathering, a survey instrument was prepared. The survey form, provided in Appendix C, focused on several areas of interest including:

• present waste quantities imported or exported;
• associated issues related to waste export/import practices (e.g. potential impacts on domestic 3Rs programs);
• assistance with the further distribution of information; and
• other suggested contacts or contact venues.

For the most part, survey forms were completed by study team personnel in the course of telephone discussions with identified potential stakeholders. In some cases, when requested, the forms were sent to the stakeholder and returned when completed. An abbreviated version of the survey form also received some degree of distribution by two Ontario-based waste management associations (to association members).

Survey work was carried out in the latter part of 1999. Those contacted during this time are identified on the stakeholder contact list in Appendix B. Input received from the stakeholder survey activities is noted, as appropriate, throughout the remaining sections of this document.

2.4 Stakeholder Consultation Sessions

During February and March, 2000, formal consultation sessions were held to gather input from private and public sector representatives as well as from non-governmental organizations. Each session generally commenced with a presentation of scope and intended purpose of the proposed regulations, the associated policy drivers and an overview of present transboundary flows. Open discussions then followed on several key definitional issues as well as alternative regulatory approaches. Sessions included:

• a meeting with non-governmental organizations on February 17 (morning) in Toronto;
• a conference call with representatives of provincial environment ministries on February 17 (afternoon) in Toronto;
• a meeting with representatives of Ontario municipalities and the private sector on February 18 in Toronto;
• a meeting with Quebec-based industry representatives on February 24 (morning) in Montreal;
• a meeting with non-governmental organizations and Quebec ministry representatives on February 24 (afternoon) in Montreal; and
• a meeting with all sector representatives on March 10 in Vancouver.

Those attending the preceding sessions are identified on the stakeholder contact list in Appendix B. Session minutes are presented in Appendix D. Draft copies of the minutes have been electronically distributed to all session attendees for their review and comment. References to the input received from these sessions can be found throughout this discussion paper.

Subsequent to the consultation sessions, follow-up submissions were received from: the OWMA; the Society Promoting Environmental Conservation (SPEC); and, the Municipal Waste Integration Network (MWIN). These submissions are located after the session minutes in Appendix D.

2.5 Other Initiatives

Several other initiatives have also been undertaken to facilitate project communication and consultation. These have included:

• a conference on CEPA 99 held in Toronto in November, 1999. Project-specific remarks were forthcoming by the conference chairman, Doug Thomson of McCarthy Tétrault (one of the authors of this paper) as well as by Ms. Suzanne Leppinen of Environment Canada (the latter in a paper entitled "The Revised CEPA and Transboundary Movements of Hazardous Wastes and Hazardous Recyclable Materials");
• on November 18, 1999 a brief presentation on project scope by SLE&C staff to the OWMA's Government Affairs Committee. Preliminary comments were provided by several committee members at that time;
• a second presentation made to the same OWMA committee by Environment Canada and the study team on January 21, 2000. Further comments were received during this time; and
• extensive and wide ranging one-on-one discussions with a variety of potential stakeholders (from the private and public sectors as well as from non-governmental organizations).

2.6 Next Steps

Subsequent consultation/communication activities are planned following the release of this discussion paper. These pan-Canadian consultative events, anticipated to be held in the second and third quarters of fiscal year 2000/2001, are to involve the complete spectrum of potential stakeholders (all levels of government, the private sector and non-governmental organizations).

Based on information gathered during that time, a draft Policy Paper (which would outline Environment Canada's regulatory plan) will be prepared for distribution in the first quarter of fiscal 2001/2002. Written submissions on the paper will then be solicited. Subsequent steps involve the development of Draft Regulations for publication (in Canada Gazette I) in the second quarter of fiscal 2002/2003. A ninety day public comment period will then ensue. The regulations would come into force upon publication in the Canada Gazette, Part II. This is currently expected to occur in the fourth quarter of fiscal 2002/2003.

3.0 REGULATORY / POLICY BACKGROUND

Several regulatory and policy initiatives concerning the transboundary movement of wastes form part of the backdrop to this discussion paper. As described herein, many of these initiatives deal primarily with hazardous wastes, however they are relevant to any actions by Environment Canada in non-hazardous waste (NHW) control.

3.1 Basel Convention

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is an international treaty under the United Nations Environment Program. Notwithstanding the title of the Convention, it covers the final disposal and recycling of hazardous wastes and "other wastes"; the latter defined as household wastes and the residue from their incineration (Annex II). Recycling of wastes is encompassed within the term disposal for the purposes of the Convention.

The Convention opened for signature on March 22, 1989 and entered into force on May 5, 1992. Over 130 countries and other parties have ratified or otherwise accepted the Convention (Canada ratified in 1992) with the significant exception of the United States. The United States signed the agreement on March 22, 1990 but has not ratified it.

The Convention requires each party to take appropriate measures to (among other things):

• reduce the generation of wastes to a minimum, taking into account social, technological and economic aspects;
• locate adequate disposal facilities, to the extent possible, within the generating country;
• reduce the transboundary movement of wastes to a minimum consistent with the environmentally sound and efficient management of such wastes; and
• ensure that the transboundary movement of wastes is conducted in a manner which will protect human health and the environment.

The Convention places primary responsibility for control of transboundary movements on the exporting country and requires that the exporting country not allow such movements without the written consent of the importing country (i.e. a prior informed consent or PIC procedure). It also requires that parties ensure that any export is managed in an environmentally sound manner. The Convention further requires transboundary shipments to be accompanied by a movement document or manifest and provides that the advance notifications of proposed waste shipments may cover multiple shipments during a maximum period of twelve months.

Each shipment must be packaged, labeled, and transported in conformity with generally accepted and recognized international rules and standards. The exporter must also provide for readmission of exports if returned by the country of import. Both the exporter and the exporting state must be informed of the receipt and ultimate disposal of the waste. National legislation is to be in place to prevent and punish illegal traffic.

In accordance with the Convention, a party shall not permit hazardous wastes to be exported to or imported from a non-party. Article 11 of the Convention, however, recognizes existing bilateral, multilateral and regional agreements with parties or non-parties to the Convention at time of ratification provided that such agreements are compatible with the environmentally sound management of wastes. It also allows Parties to sign new bilateral, multilateral or regional agreements, provided these do not derogate from environmentally sound management. The Canada-U.S.A. Agreement, described below, is an example of an agreement that was in place prior to Canada's ratification of the Convention.

All exports, whether for recycling or disposal, are prohibited where the receiving country has banned or not consented to such imports. This may include some materials considered hazardous by the receiving country, but not by Canada.

Canada implemented its principal obligations under the Basel Convention with the Export and Import of Hazardous Waste Regulations under the Canadian Environmental Protection Act (CEPA) in 1992 as noted in Section 3.4, below.

3.2 OECD Actions Concerning Transfrontier Movements

The Organization for Economic Co-operation and Development (OECD) has also been active in attempting to control the transboundary movements of hazardous wastes and recyclable materials. A 1984 decision by the OECD requires the exporting country to provide adequate and timely information to the importing country. The appropriate authorities in the country of destination then have the option of consenting or objecting to the proposed shipment.

OECD Council Decisions are legally binding on all member countries that accept them. There are 29 member countries in the OECD including Canada and the United States.

Of particular interest is the three-tiered system (green, amber, red) developed in 1992 to apply to controls of recyclables. Green tier materials (non-hazardous recyclables) are to be subject to normal commercial controls only. Amber tier materials are those that pose a moderate risk. In this case, shipments can occur provided that a prior informed consent is obtained in advance of any shipment (the consent is either expressed, tacit or conditional), and the Council Decision also requires a valid written contract starting with the notifier and terminating at the recovery facility. In the case where a recyclable material cannot be managed as intended in the notification, financial guarantees for alternative recycling or disposal and required notification for re-export are further stipulated. Red tier recyclables are those hazardous materials deemed to pose a high risk. In this case, the same controls as with amber tier recyclables are mandated except that written consent prior to movement must be received from the importing and any transit countries.

In April 1997, the Environment Policy Committee of the OECD directed one of its subsidiary bodies, the Working Group on Waste Management Policy, to identify areas where it would be feasible and appropriate to harmonize the procedures and requirements of OECD Council Decision C(92) 39/Final (concerning transboundary movements of wastes destined for recovery operations (i.e. recyclables)) with those of the Basel Convention. A number of recommendations were made by the Working Group including that the OECD Control System should be harmonized with the Basel Convention by: (i) replacing the OECD green, amber and red lists of recyclables with Annexes VIII and IX of the Basel Convention; (ii) applying the green procedure to Annex IX wastes; and the amber procedure to Annex VIII wastes; and (iii) eliminating the present OECD Review Mechanism other than in exceptional cases.

3.3 Canada - U.S.A. Agreement on Hazardous Waste

The Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste (including hazardous recyclable materials) came into effect in November, 1986 and is renewed every five years unless a Party withdraws. Under this Agreement, the two countries are responsible for ensuring that domestic laws and regulations are enforced regarding transportation, storage, treatment, and disposal of transboundary shipments.

The basic scheme of the Canada-U.S.A. Agreement is similar to that of the Basel Convention. It provides for notification to the country of import by the country of export of proposed transboundary hazardous waste shipments (including recyclable materials) covered by the Agreement. As with the Basel Convention, the notice may cover an individual shipment or a series of shipments extending over a twelve-month period. Under the Agreement, the country of import has thirty days from receipt of notice to respond, indicating its consent, (conditional or not) or its objection. If no response is received within that period, the country of import is deemed to have no objection and the export may take place conditional upon compliance with the laws of that country. Shipments of wastes and hazardous recyclable materials require a manifest. The exporter must provide for readmission of exports if returned by the country of import.

The Canada-U.S.A. Agreement was amended in November, 1992 to also cover "other waste", defined to mean Municipal Solid Waste that is sent for final disposal or for incineration and the residue arising from the incineration of such waste (as per Annex II of the Basel Convention). Municipal Solid Waste is to be interpreted as defined by each country's respective national legislation and implementing regulations.

The 1992 amendments noted that manifest-related requirements in the original Agreement could, with respect to other waste, be substituted by alternative tracking requirements. As there were no supportive Canadian federal regulations in place, it was indicated at that time that during the five year review of CEPA, the Department of Environment (DOE) would seek authority for regulating control mechanisms on the import and export of these wastes.

3.4 Export and Import of Hazardous Wastes Regulations

The Export and Import of Hazardous Wastes Regulations, promulgated under CEPA in 1992, were designed to fulfill Canada's international obligations for hazardous waste export and import (including hazardous recyclable materials). The regulations provide a control/monitoring function requiring hazardous waste exporters to obtain prior consent for transboundary shipments, meet environmental liability insurance requirements, and take all practicable measures to ensure that the disposal or recycling in the receiving country is environmentally sound.

The regulations, monitored by the Transboundary Movement Division of Environment Canada, ensure that transboundary movements handling and disposal of hazardous wastes occur in approved facilities and in a manner that is protective of human health and the environment. Definitions of hazardous wastes and hazardous recyclable materials are consistent with those of the Basel Convention and OECD Council Decision C(92)39/Final. The regulations included the three-tier system of waste controls (green, amber and red) noted above in Section 3.2.

Key to the regulations is a notification and manifest system. This system requires that a Notice of proposed export, import or transit be submitted to Environment Canada prior to shipment. This allows the receiving jurisdiction to review the hazardous waste or hazardous recyclable material in relation to its destination and to provide consent to Environment Canada before shipment. Each Notice is valid for up to a year and may represent a number of shipments over that period.

Once a Notice has been approved, shipments are accompanied by a Canadian Waste Manifest, which describes the hazardous waste along with a copy of the Notice and confirmation letter issued by Environment Canada. A copy of the Manifest is sent to Environment Canada by the exporter when the shipment leaves a facility and a copy is dropped off at Customs when crossing the border. This copy is also to be forwarded to Environment Canada. A third copy is to be sent to Environment Canada by the receiver of the waste/recyclable material. Once the hazardous waste has been disposed of or the material has been recycled, a Certificate of Disposal/Recycling is also to be forwarded to Environment Canada confirming the completion of the operation.

3.5 Canadian Environment Protection Act

CEPA 99, which revokes and replaces CEPA, came into force on March 31, 2000 and contains revisions which pertain to the control of prescribed non-hazardous waste destined for final disposal (Division 8 of Part 7, CEPA 99: Controlling Pollution and Managing Wastes). It should be noted that there is no authority provided therein to control the export and import of prescribed non-hazardous wastes when they are destined for recycling.

Section 185 in CEPA 99 addresses notification and permitting issues as follows:

(1) No person shall import, export or convey in transit a hazardous waste or hazardous recyclable material, or prescribed non-hazardous waste for final disposal, except

1. after notifying the Minister and paying the prescribed fee;
2. after receiving from the Minister whichever one of the following permits is applicable:
   1. an import permit or export permit that, except in the case of a permit issued under subsection (4), states that the authorities of the country of destination and, if applicable, of the country of transit have authorized the movement, and that the authorities of the jurisdiction of destination have authorized the final disposal or recycling of the waste or material, or
   2. a transit permit that states that the Minister has authorized the movement; and
   3. in accordance with the prescribed conditions.

Section 187 in CEPA 99 requires the Minister to publish information on proposed imports, exports and transits. Section 188 gives the Minister authority to require an exporter, or a class of exporters, to submit a plan for reducing or phasing out the export of prescribed waste for final disposal and also to implement that plan. The Minister is permitted to refuse a permit to an exporter who does not comply. In accordance with Section 191, such plans should take into account the benefit of using the nearest appropriate disposal facility, and changes in the quantity of wastes generated due to increased production of goods. Section 190 of CEPA 99 allows the Minister to issue permits based on equivalent environmental safety levels for any waste import, export or movement activity that does not comply with the revised Act or the regulations.

Section 191 of CEPA 99 gives the Governor in Council authority to make regulations for the purpose of carrying out the foregoing provisions (e.g., notice information requirements, waste and material classifications, etc.). It is this authority which forms the basis of the regulatory initiative that is the subject of this discussion paper.

3.6 Provincial Control of NHW Movements

Provincial legislatures also have the ability to control NHW imports and exports indirectly through legislation and regulations directed at the use of provincially permitted waste disposal facilities.

For example, in Ontario, the province can and does impose service area restrictions on NHW disposal sites under the Ontario Environmental Protection Act. Counties that assume the waste management powers of their lower tier municipalities are given "flow control" powers under the Ontario Municipal Act by which they can direct the flow of municipal waste to County-owned recycling and disposal facilities. Material bans have further been enacted at some municipal sites to maximize material diversion.

Section 115(2) of the Regulation respecting Solid Wastes adopted pursuant to the Environment Quality Act of Quebec prohibits any landfilling of waste generated outside specific regional jurisdictions. In 1988, the Quebec government noticed an increase of imported waste for landfilling, especially in the Eastern Townships, close to the American border. The Sanipan site was receiving most of this waste. The Regulation resulted in a court challenge by Les Enterprises de Rebuts Sanipan Inc.

According to Quebec Superior Court, the Environment Quality Act showed an intent to control land use which was taken to also affect the use landfill operators could make of the land. The Government considered it necessary to stop waste imports both because a saturation of available landfills was foreseen as well as to prevent serious heritage (land-based) impacts. The issue of wastes being a potential source of environmental contamination was also noted.

The Court held that because a landfill's only activity is to bury waste and the province has exclusive constitutional jurisdiction over its land, and as the Regulation's purpose was to reduce the quantity of waste disposed and the number of landfills, in accordance with Government policy aimed at preventing further soil contamination, the Court concluded the Regulation was constitutionally valid. An argument against the Regulation based on the North American Free Trade Agreement was rejected as it was not domestic (Quebec) law and because the Court considered that importing waste could not be considered as trading goods.

Further to the preceding, other examples of provincial policies or regulations in place to prevent or discourage waste imports include:

• Newfoundland - standing order is in place that requires prior government approval before waste importation for disposal can occur;
• Nova Scotia - policy exists against imports for landfilling or incineration (with or without energy recovery);
• New Brunswick - Environmental Impact Assessments must be carried out for sites intending to dispose of imported waste; and
• Manitoba - the development of a provincial waste import/export policy has been recommended as part of a review of solid waste activities.

3.7 Current U.S. Initiatives Towards Regulating NHW Movements

Attempts continue in the U.S. Congress to introduce legislation imposing limitations on the receipt of out-of-state municipal solid wastes (MSW) and to authorize state and local controls over the flow of such waste. Four such Bills have been introduced in the most recent 106^th Congress, although none of the proposals have resulted in a change in US federal policy so far.

H.R. 1190, the Solid Waste Interstate Transportation and Local Authority Act of 1999, would amend the Solid Waste Disposal Act to prohibit a landfill or incineration facility from receiving out-of-state MSW unless the waste is received pursuant to a host community agreement or an exemption from this prohibition. The Bill also authorizes states and local governments to establish limits on the amount of out-of-state waste received annually for disposal at each facility. The Bill further allows states to pass laws to deny or refuse to renew a permit for construction, major modification or operation of a MSW disposal facility if the state has approved a MSW management plan and such denial is based on a determination that there is no need for the facility in the state. Finally, the Bill allows states to impose cost recovery surcharges on the processing, combustion or disposal of out-of-state waste.

Three similar Bills (S.533, S.663 and 872) were also introduced in the U.S. Senate in the 106^th Congress. Hearings were held on all three by the Senate Committee on Environment and Public Works in June of 1999.

3.8 U.S. EPA RCRA Subtitle D Regulations

New criteria for landfill design and operation were incorporated in the U.S. Resource Conservation and Recovery Act (RCRA) Subtitle D regulations promulgated in 1991. The regulations became effective October 1993. The Subtitled Regulations imposed strict controls over American landfill operations and set forth minimum criteria with respect to location, operation, design, monitoring and corrective action, closure and post closure care and financial assurance. The regulations were expected to result in the closure of some sites which could not meet the new criteria.

Some American sites reduced fees in 1992 to attract more waste in advance of the stricter regulatory requirements. Few landfills actually closed, however, and relatively low prices have persisted at many sites. The economies of scale available at larger regional landfills have been suggested as one reason for prices to have remained low. Other factors in this regard are likely the presence of long term contracts, hauler obligations, and the use of integrated company facilities.

3.9 European Community Council Directives

European Council Regulation (EEC) No. 259/93, February 1993, deals with the supervision and control of waste shipments within, into and out of the European Community. One of the aims of this regulation is to "....enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health." Its general intent and scope is similar to the regulatory scheme currently in place in Canada at the federal level for the export and import of hazardous wastes. That is, requirements are stipulated for prior notification, the control of illegal traffic, financial guarantees or equivalent insurance, etc.

As defined therein, "waste" is any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force. "Disposal" encompasses both: the collection, sorting, transport, treatment and storage/tipping of waste; as well the transformation operations necessary for re-use, recovery or recycling. Household wastes are specified under Annex III as being in the amber list of wastes, and are identified with other wastes as to be re-examined as a priority matter by the Review Mechanism of the OECD.

4.0 BACKGROUND STUDIES AND REPORTS

As summarized in this section, there have been several previous studies in Canada regarding transboundary waste movements. For the current project, attempts were made to build upon this past work through a survey of provincial environmental ministries, major urban centres, etc. (see Section 2 and Appendix C) as well as through interactive stakeholder consultation sessions (see Appendix D).

As noted herein, regulatory requirements governing waste handling, transport and disposal both domestically as well as in importing countries, dictate the basic legislative framework in which the waste management industry operates.

4.1 1993 Ontario Export Study

A study entitled "Export of Solid Non-Hazardous Waste from Ontario" was prepared for the Ontario Ministry of Environment (and Energy) in October 1993 to assess Ontario's progress toward provincial waste diversion targets and determine the significance of waste export activities. The study used data provided by the U.S. Customs Service, private waste management industry and waste management officials in Ontario and the U.S., as well as from a survey of border crossing movements.

The study determined that approximately 1.3 million tonnes of solid non-hazardous wastes were exported from Ontario to disposal (landfill and incineration) facilities in the U.S. during 1992. Metropolitan Toronto and the Regions of Peel, Halton and Hamilton-Wentworth reported the most activity in this regard. Further, the identified exported wastes were found to be mainly industrial, commercial and institutional (IC&I) wastes collected by private haulers. Construction and demolition material was considered to have made up a significant proportion of the total waste exports.

Ontario waste exports were identified as going to sites in Ohio, Pennsylvania, New York, Michigan and, to a lesser extent, Indiana and (possibly) Maine. The three major waste management firms involved in waste export were identified as Browning Ferris Industries (BFI), Waste Management Inc. (WMI) and Integrated Waste Services (IWS). Factors contributing to the waste export activities were considered to include:

• a 1991 policy decision by the U.S. Department of Agriculture to no longer require the incineration of imported Canadian wastes. This opened the possibility for U.S. landfill disposal of Canadian wastes;
• significant differences in the total disposal costs (tipping fees and haulage). Tipping fee charges to private sector collected wastes were generally (at that time) between $150 and $180 per tonne in the Golden Horseshoe area, a "dramatic" increase from previous years and significantly more than at U.S. landfills;
• restrictions on service areas at Ontario landfills and material bans at municipal sites (to maximize diversion of marketable recyclable materials). One example of this was noted to be prohibitions from disposal of loads containing recyclable corrugated cardboard, white goods, tires, drywall, scrap metal, etc. at some landfills;
• the absence of federal export control; and
• a relatively unrestrictive U.S. regulatory and policy environment.

While it was recognized that there was no single trigger point at which the private waste management industry would return waste flows to Ontario's municipal landfills, it was suggested at that time that should tipping fees at these sites drop to a $80 to $90 per tonne range, waste exports would be nearly eliminated.

With regards to information sources, while U.S. Customs was identified as the only agency which consistently collected data on transboundary movements, comprehensive data was not available as exported waste loads were generally assigned a dollar value below that for the reporting of trade data ($1,250/load). For the border crossing survey, visual estimates based on probable truck types only was conducted.

While some of the border states monitored out-of-state movements, two of the larger recipients for provincial refuse (New York and Michigan) had only general knowledge in this regard. Data from Ontario municipalities was generally only useful for residential (as opposed to IC&I) waste and it was noted that IC&I wastes constituted the majority of refuse exports. Private sector operators (Canadian and American) were typically not forthcoming with useful information.

As noted elsewhere in this report, similar limitations on data sources were also encountered in this study.

4.2 1994 RCO Policy Forum

On February 24, 1994 the Recycling Council of Ontario (RCO) held a Waste Export Forum to promote a discussion of the impacts of waste export upon waste diversion activities. The forty-five attendees included representatives from all levels of the public sector, the waste management industry, academics, consultants, and environmental non-governmental organizations.

One of the conclusions reached at the forum was that the export of solid waste to the U.S. was having a negative impact on the development of 3Rs industries in Ontario. It was noted that

waste diversion facilities which were established based on the expectation that sufficient quantities of materials would be available to sustain their operations were in some cases being impacted by waste export at lower prices.

In this respect, it was further noted that the former Ontario Environment (and Energy) Minister Mr. Bud Wildman had asked the federal government to impose an export tax on all international shipments of waste. This was proposed as an interim measure until CEPA was amended to give the federal government legislative authority to regulate transboundary shipments in the longer term. Strong support in the U.S. to provide state and local governments with tools to exercise greater control over the movement of out-of-state waste was also recognized.

Forum participants also felt that the delay by Ontario in passing waste reduction regulations created uncertainty leading to reduced levels of investment in 3Rs infrastructure. Immediate implementation of the waste reduction regulations pertaining to the IC&I sector was suggested (these regulations became law in March, 1994).

No consensus was reached concerning possible statutory mechanisms available to the province, the federal government or the U.S. government to "close the border" as well as the impact of GATT, FTA or NAFTA on any proposed action in this regard. There was also no agreement whether waste export was a practice which could or should be absolutely curtailed or the extent to which landfill bans could ensure the diversion of recyclable materials. Further, no consensus emerged as to the impact of landfill operations on host communities or the question as to whether local responsibility for waste or economic factors should be the primary concern with respect to waste disposal.

4.3 1995 Study of Transboundary Movements

A report entitled "Study of the Transboundary Movement of Waste Into/Out of Canada" and submitted to Environment Canada in May 1995 examined the nature and impacts of the transboundary movement of wastes between Canada and other countries (primarily the U.S.). The report focused on non-hazardous solid waste, but also looked at hazardous and liquid industrial waste and selected categories of recyclables. The report contained four main elements: an estimate of Canadian waste import and export quantities (for selected streams); a review of the economic and employment impacts of these movements; a description of four policy options for managing the movement of non-hazardous solid waste; and, an overview of existing controls.

The report identified four key aspects to the flow of waste materials into and out of Canada:

• The Canadian waste management industry represents an estimated value of between $3.5 and $4.7 billion to the Canadian economy (about 0.5% of GDP), with between 30,000 and 40,000 employees (1993). With values taken from the previously described Ontario study (Section 4.1), 1992 exports of NHW to the U.S. for disposal were estimated at 1.3 million tonnes (approximately 6% of the total such waste disposed in Canada). A very small amount of export was also noted to occur from New Brunswick. Again, none was reported as imported. The net annual cost to the Canadian waste management system of landfilling in the U.S. was estimated to be between $90 to $130 million (based on an average Ontario tip fee of $50/tonne and varying American tip fees and transportation costs);
• A large (and generally balanced) level of trade was found to exist between Canada and the U.S. in the secondary metals industry (0.76 to 1.3 million tonnes exported in 1992 and 1.3 to 1.35 million tonnes imported for selected streams). The total value of imports into Canada and the estimated earnings by Canadian employees represented an impact of almost $577 million to the economy;
• Canada imported over 1.2 million tonnes of paper fibre for recycling in 1992. Eighty-five percent of this material was consumed in Ontario and Quebec. An estimated 4,240 jobs were directly related to the availability of imported fibre. The total impact on the Canadian economy from waste paper imports (i.e. earnings by employees plus the value of materials) was $336 million in 1993. Approximately 230,000 tonnes of fibre were also exported in 1992; and
• In (the then) recent years, there had been a net export of hazardous waste from Canada to the U.S. (e.g., approximately 230,000 tonnes exported and 130,000 tonnes imported in 1992). More than 50% of these movements were wastes destined for recycling. The primary motivation for these movements was judged to be the rationalization of facilities on either side of the border (it should be noted that this trend has changed since 1995).

The report also noted the influence of vertically-integrated multinational waste management companies which tended to transport materials to their own disposal, recycling, treatment and incineration sites outside Canada. The estimated transboundary movements of selected waste material streams into and out of Canada in 1992 were summarized as shown in Table 4-1.

Table 4-1 - Estimated Transboundary Movements of Selected Material Streams (1992)

* for disposal, recycling and incineration

Four potential management options for Canadian non-hazardous solid waste imports/exports were briefly described in the report, along with the likely impacts of each option. Discussed in more detail in Appendix E, the management options were as follows:

1. No Controls on Waste Imports/Exports - this option implied that the federal government would take no further action toward the implementation of policies or regulations affecting transboundary movements. In effect, the flow of NHW between the U.S. and Canada would be kept as open as possible, with no efforts made to monitor shipments or impose conditions on waste haulers or disposal sites;
2. Increased Regulatory Management Mechanisms - in this option, while the federal government would take no action to restrict or interrupt transboundary movements of NHW, they would impose controls and conditions to monitor waste flows and encourage disposal in environmentally safe facilities;
3. Economic Measures - instruments such as taxes, fees, levies or surcharges were suggested to be used to increase the cost of importing or exporting NHW. Assuming such charges were sufficient to influence the decisions of waste generators and haulers, they would function as an economic incentive encouraging the establishment of waste facilities on either side of the border. They also offered the potential to raise revenues for regulatory agencies; and
4. Import/Export Bans and Restrictions - such actions would prohibit shipments of NHW to or from a particular jurisdiction. As described, they would apply generally or more narrowly to certain types of NHW, under certain conditions and/or from designated sources. Bans and restrictions were viewed to represent the strongest option available.

As noted in the report, it was not the intention to draw conclusions regarding preferred control options for Canadian waste imports and exports. The report stated, however, that the scale of the economic value and employment impacts involved in this activity and the inter-relationships among the various waste streams suggest that care should be exercised in examining significant changes to current practices/regulations.

4.4 1995 Pilot Voluntary Notification System

A pilot voluntary notification/reporting system for the transboundary movements of NHW was put into place by Environment Canada in 1995. This interim initiative was to form the basis for the subsequent development of associated regulations and a permanent notification system, in a manner similar to that for the Export and Import of Hazardous Wastes. Intended primarily to be carried out in the 1995 calendar year, it was also contemplated that the voluntary notification system might continue (possibly with improvements) into 1996, and be expanded across the country.

Development of the pilot voluntary system commenced with consultation by Environment Canada with various federal, provincial and territorial agencies as well as with the U.S. Environmental Protection Agency. A working group composed of representatives from the Ontario Waste Management Association, the Ontario Ministry of Environment (and Energy), Foreign Affairs and International Trade, Environment Canada, as well as several private sector waste management firms was struck in 1994. This group met on several occasions throughout that year to both solicit volunteer waste management firms for the pilot study and to establish appropriate notification (reporting) procedures.

Several companies, all Ontario-based, were invited to participate in the voluntary notification exercise. Quarterly reporting forms were prepared for pre-notification and post-notification activities. The pre-notification forms were meant to provide details on shipping and receiving facilities on a general basis only (as forecasting shipments to the U.S. was considered difficult due to the volatility of the market). The post-notification forms were targeted to the identification of actual waste quantities shipped and the specific receiving destinations.

Throughout the course of the pilot program in 1995, only very limited pre-notification reporting was provided to Environment Canada by five firms. No company consistently provided data for all quarters of the year. Only two of the five companies further reported any waste quantities shipped (via submitted post notification forms) and, again, consistent reporting for the entire year was not forthcoming. In all, only approximately 40,000 tonnes of transboundary NHW waste exports were captured in the voluntary reporting exercise.

4.5 1997 Report of the Auditor General of Canada

Chapter 4 of the Auditor General of Canada's April 1997 Report was entitled "Control of the Transboundary Movement of Hazardous Waste". This report dealt with the results of an audit conducted by the Auditor General to determine whether Environment Canada, in co-ordination with other federal departments and the provinces, had established an effective and comprehensive regime to control the transboundary movement of hazardous waste, consistent with Canada's international commitments and obligations to ensure environmentally sound and efficient management of such wastes. A key focus of the audit was to determine the extent to which Environment Canada promoted and monitored compliance and took appropriate enforcement action.

The Auditor General found that while Environment Canada had made a good start in compliance promotion activities and leading/establishing an effective and comprehensive regime to monitor and control transboundary movements of hazardous waste, several deficiencies existed. A lack of necessary capacity for proactive prevention of illegal shipments and limited enforcement actions were two of the principal concerns noted.

The Auditor General's report, while focused on hazardous waste imports and exports, is also instructive for the implementation of NHW regulations. Depending on the control mechanisms ultimately adopted by Environment Canada for NHW imports and exports, many of the same monitoring, compliance and enforcement issues may arise. At the same time, it is recognized that there are potentially significant differences between hazardous and non-hazardous wastes and the export and import businesses pertaining to them.

For example, as compared to NHW, there are more significant monetary incentives for illegal traffic in hazardous wastes. The report noted that the cost of processing a legal truckload of hazardous waste could range from $300 to $1,200 a tonne. The disposal of a truckload of such waste, typically 22 metric tonnes, might easily cost ten thousand dollars or more. There are also costs for liability insurance and brokerage, and an approximate 35 to 40 day waiting period for completion of the required paperwork (implementation of a control scheme for NHW may introduce similar issues for NHW imports and exports). These incentives for illegal traffic were exacerbated by a noted low chance of detection, and of receiving administrative, civil or criminal sanctions.

Difficulties in the inspection and effective testing of waste, an especially onerous issue with hazardous materials, was also dealt with at length in the Auditor General's Report. Definitional concerns, encompassing a significant variety of substances, pointed to the need for harmonization between federal and provincial protocols and for supportive revisions to CEPA. Unique tariff numbers were recommended as was a more effective management strategy addressing the frequency of sampling, sampling protocols, access to testing facilities, etc.

The Report also noted that some enforcement actions involving the illegal traffic of hazardous waste had been stayed or not proceeded with, on the grounds of difficulties stemming from the definitions used in CEPA and the Export and Import of Hazardous Waste Regulations. Few charges had been laid and even fewer convictions obtained.

Areas of low compliance were noted for both exports and imports, particularly with the regulatory provisions for manifests (28% compliance for exports; 53% for imports) and certificates of disposal/recycling (67% compliance for exports; 62% for imports). Manifesting requirements include the submission of various copies of the documents. In many cases, Environment Canada received either the consignor or the consignee manifest copy, but not both.

It should be noted that since the issuance of the Auditor General report, compliance rates have significantly increased in response to increased effort by Environment Canada staff in this regard. The Auditor General released a two-year review of the 1997 audit in May 2000.

4.6 1997 Assessment of Trade in Wastes/Recyclables

A further study prepared for Environment Canada entitled "Assessment of Canadian Trade in Wastes/Recyclables, 1988-1995" and dated July 1997 was also reviewed as background for this project. This document focused on the quantities and values of imports and exports of wastes, as reported in Canada's trade statistics database, with an emphasis on hazardous materials.

As noted therein, import and export statistics for all goods are compiled by Statistics Canada's International Trade Division using the Harmonized System (HS) codes - an internationally based system. Primarily designed for use by customs departments, the HS system is also employed by Statistics Canada to track production data. The report identified significant limitations with the ability of either the HS system or Canada Customs to track waste types, whether destined for disposal or recycling. Significant limitations in this respect included the following:

• material tracking activities are often based on financial value, and since many wastes represent a liability rather than an asset (i.e. they have negative value), they are not well monitored;
• even where they do have value as a secondary material, this value is often below the thresholds commonly used to justify specific classification (many wastes fell into catch-all categories for low value materials);
• as the primary focus of customs agents is to monitor imports for illegal substances, and for taxes and duties owing, there is very little quality control over data on exports. Canada Customs does not have as significant an infrastructure for monitoring exports as for imports;
• the complexities associated with the classification of waste and the classification discretion associated with both the waste and HS systems;
• some HS codes may contain both hazardous and non-hazardous wastes; and
• some HS codes were recognized to encompass both wastes and non-waste materials.

An attempt was made by the study's authors to extract waste data from the Trade Information Enquiry and Retrieval System (TIERS) database, which records all imports and exports. While the TIERS database is, in theory, a comprehensive record of Canadian trade, its usefulness for waste analysis was again found to be limited as the HS system was not designed to track wastes or to discriminate between hazardous and non-hazardous wastes. The best source of data on hazardous waste exports and imports was determined to be from the manifests filed under the Export and Import of Hazardous Waste Regulations.

Most trade in wastes was noted to occur within the OECD, with Canada's largest trading partner being the United States. Limitations in data notwithstanding, an attempt was made to relate the data presented in the HS system to OECD waste code mapping. As noted in Section 3, OECD codes classify wastes into three lists - green (non hazardous), amber and red - according to the potential risks they may pose. Difficulties arose in this exercise, however, as some HS codes had more than one OECD code type. The report nevertheless concluded that most trade activity involved non-hazardous wastes.

The quantities of waste exported to non-OECD countries, as indicated by the HS codes, were noted to fluctuate significantly. In general, exports had grown much faster in (the then) past years than the gross domestic product (GDP), and it was considered likely that this would be true for recyclables and wastes, as well as for other goods and services. Overall, waste exports were suggested to correlate quite well with total merchandise exports. Most of the non-OECD trade was associated with green categories of waste.

Certain materials were further noted to be of potential concern as hazardous wastes to some receiving countries, even though they were not considered hazardous under Canadian (or international) regulations. Tires and waste plastics were two examples cited.

4.7 Report of Solid Waste Landfilled in Michigan

In February, 1999 the Michigan Department of Environmental Quality (Waste Management Division) published a document entitled "Report of Solid Waste Landfilled in Michigan, October 1, 1997 - September 30, 1998". As noted therein, all landfills in Michigan are required to annually report the amount of solid waste received by county, state, or country of origin. The 1999 report was the third annual report of solid waste landfilled in the State.

While it was recognized that the data may include some estimations (and did not address incineration except for the final landfilling of ash from municipal incinerators), it was clear that the largest source of waste imports to Michigan continues to be from Canada. Total reported Canadian imports amounted to 2,548,815 cu.yds., a level generally consistent with that noted in the previous two reporting periods. In the current reporting period, nine landfills in seven State counties were involved in this trade. Canadian imports were found to be equivalent to 5.5% of all waste disposed of in Michigan landfills. Out-of-state waste imports, in general, totaled 12.3% of all solid waste disposed of in State sites.

4.8 Summary

As discussed throughout this section, the transboundary movement of non-hazardous waste (NHW), hazardous wastes and recyclable materials involves important and interrelated economic, environmental and social public policy considerations. At present, and as reviewed in Section 3, the movement of hazardous waste is regulated and controlled at a federal level and by the provinces. The transboundary movement of recyclables, further, has been identified as forming an important element of Canadian trade and domestic commercial activities. NHW movements currently take place with minimal regulatory control. The movement and control of all three waste streams, however, are interconnected in a way that activities in one area can have adverse consequences in other areas (e.g., the impacts of low cost disposal exports on 3Rs infrastructure).

Environment Canada's long stated policy on transboundary movements is to allow our borders to remain open to the controlled movements of hazardous wastes, hazardous recyclable materials and non-hazardous waste while ensuring that such movements are managed in a manner protective of human health and the environment and administered such that an affected jurisdiction can refuse or consent to imports on the basis of protecting their environment.

While it is clear that no course of future action (including doing nothing) is without both advantages and disadvantages, it is equally clear that some action is required, to meet Canada's international commitments in Basel and amendments to the Canada-U.S. Agreement (see Section 3). The status quo (do-nothing) alternative further ignores potential future restrictions and flow control regulations by other governments and, does nothing to alleviate concerns regarding the present undermining of the 3Rs by the presence of low cost export disposal.  

While it might be argued that a voluntary approach should be considered to waste flow reporting as a first alternative to the above, the lack of success in the prior Environment Canada pilot program (Section 4.4) does not support this position. Some action is, therefore, required.

Of the various available options for action, some form of regulatory mechanism (as suggested in Section 4.3) appears the logical first choice at this time. This option would avoid the significant disadvantages of potential economic instruments or the more aggressive bans or restrictions on imports/exports such as the potential for retaliatory trade measures. It would also represent a first logical step to any form of further active involvement on the part of the federal government. That is, if more active measures were later determined to be desirable, some form of monitoring would necessarily still be required to be in place.

Waste management regulations in the U.S., our largest "trading" partner with respect to transboundary waste movements, can be expected to evolve as evidenced by past attempts at flow control and interstate waste bills (Section 3.7). This evolution may eventually place our waste management industry as well as municipal entities that have grown to depend on waste export as an available management option in a difficult situation. Should this come to pass, the first area of logical recourse would be through the federal government. In order for this level of government to fully and expeditiously understand the ramifications of such a situation and the level of importance it deserves, it can be argued that they must be aware of the scope of potential impacts. A need to understand current trends in transboundary quantities, through an ongoing monitoring and PIC program, would be one element in this understanding.

Notwithstanding, it is recognized that the waste management industry and generators may find it difficult to accept changes to the status quo. Further, careful attention must be paid to potential implications to the waste diversion industry, so as to not adversely affect current and future activities in this regard. Appropriate levels of reporting requirements supported by a clearly understood and easily enforced definition of prescribed non-hazardous wastes are necessary.

5.0 ANALYSIS OF EXPORTS/IMPORTS OF NON-HAZARDOUS WASTES

One aspect of this project was a review of present and projected exports and imports of non-hazardous waste (NHW) destined for final disposal. The outcome of this work, which included a look at waste types, volumes and transportation destinations is presented in this section. While not a primary focus of this exercise, comments are also made herein with respect to the trade in recyclable materials.

Base data and background information used in this analysis were largely derived from the stakeholder contact survey (see Section 2.3). Reference is also made herein to previous reports prepared on the subject of transboundary movements (see Section 4). As discussed throughout Section 4, accurate data reflecting the transboundary movements of NHW destined for disposal is very difficult to obtain in the absence of reporting from private waste management firms. These difficulties were also encountered in this study as reflected in the poor quality of data derived.

As noted herein, six provinces reported no waste export or import activity, although confirmatory data was often scarce. These provinces were Newfoundland, Prince Edward Island, Nova Scotia, Quebec, Manitoba and, Alberta.

5.1 Newfoundland

The Department of Environment & Labour report that municipal NHW is not exported from the province. IC&I establishments, however, may be exporting NHW (further details unknown). Recyclable material exports include tires, scrap metals, beverage containers, etc.

A standing order is in place that requires prior government approval before waste importation can occur (put in place in response to a proposal several years ago to import waste for disposal). As a result, no waste is imported into the province (minor quantities from aircraft and cruise ships, considered international wastes, are received).

5.2 Prince Edward Island

In this province, solid waste is managed by the Island Waste Management Corporation (IWMC). Corporation representatives report that PEI does not import or export solid wastes for disposal, with the exception of exported hazardous wastes (PCBs, bio-medical waste, etc.) and the occasionally received waste from cruise ships (at the ships' request). Some materials are exported for recycling.

5.3 Nova Scotia

The Nova Scotia Department of Environment report that no municipalities are currently exporting waste for disposal. They are also not aware of any such movements concerning IC&I wastes. No landfills are further receiving waste imports with the Department noted to having a policy against such waste movements for landfilling or incineration (with or without energy recovery).

The only transboundary movements identified were related to fibre/corrugated cardboard, used clothing, and potentially, newsprint/magazines (imports received from the U.S.). Exports, primarily directed to the U.S., were noted to comprise paper fibre, waste tires and plastics.

5.4 New Brunswick

The New Brunswick Department of Environment reports that solid waste from the state of Maine is imported to two areas for disposal. These areas are represented by the Solid Waste Commissions of South West (6,000 to 7,000 tonnes per year imported) and, Madawaska/Victoria (7,800 tonnes/year imported). The Department further reports that Environmental Impact Assessments must be carried out for sites intending to dispose of imported waste. Material imports are considered beneficial in some cases as they help support local 3Rs programs.

One other jurisdiction, the Fundy Region Solid Waste Commission, reported receiving some minor offshore waste from international shipping activities. No waste export activity was identified in the province.

5.5 Quebec

As noted in Section 3.6, Quebec's Regulation respecting Solid Wastes adopted pursuant to their Environment Quality Act prohibits any landfilling of waste generated outside the province. No waste imports, therefore, are presently occurring in Quebec. With respect to waste exports, no data was forthcoming at the time of this report.

5.6 Ontario

As noted in Section 4.1, a 1993 report entitled "Export of Solid Non-Hazardous Waste From Ontario" estimated that 1.3 million tonnes of NHW were exported in 1992 to the United States. At the time that study was undertaken, the majority of this waste was from the IC&I sector and collected by private haulers serving Metro Toronto and the Regions of Peel, Halton and Hamilton-Wentworth. No waste was reported as being imported for disposal in Ontario. This situation remains largely unchanged.

5.6.1 Ontario Waste Exports

Present waste disposal practices in Ontario were canvassed with the following results:

City of Toronto: currently (1999) 325,000 tonnes of municipal NHW are hauled to Michigan. In 2000, this is expected to increase to 450,000 tonnes. Present disposal contracts may be extended for 2 more years. In 1998, municipal waste exports amounted to approximately 254,000 tonnes. Significant quantities of IC&I and C&D waste are also exported.

A significant degree of uncertainty was noted with long-term waste disposal from Toronto and the Regions of York and Durham as the Keele Valley landfill is scheduled to close in 2002. Toronto is currently in the process of searching for long term waste management solutions. The Toronto Integrated Solid Waste Resource Management Process (TIRM) call for proposals (on behalf of Toronto and Peel, York and Durham Regions) resulted in several responses offering disposal in the U.S. York Region, in a parallel process, has also received proposals primarily from U.S. disposal facilities.

Halton Region: it is estimated that at least 100,000 tonnes of NHW, mainly IC&I-based, are exported out of the region through two private operated transfer stations. Most of the waste handled by one of the facility operators (estimated at 57,000 tpy) is exported to an incinerator in the U.S.

Region of Waterloo: 120,000 to 150,000 tonnes of NHW, mainly IC&I, are estimated as exported through three privately operated transfer stations. Two of the transfer facilities are suspected to be exporting to the U.S.

Region of Peel: all municipal waste is currently directed to local landfills. As the primary site (Britannia) is expected to reach capacity by 2003, the Region is currently looking at future disposal options including export to the U.S. The Region doesn't track IC&I exports although data from a 1996 Benchmarking Report may be useful (pending).

Region of Hamilton-Wentworth: no export of municipal waste is reported. Significant quantities of IC&I wastes are exported, however, with two privately operated transfer stations known to dispose of waste in the U.S.

Region of Niagara: currently no exports of municipal waste are taking place. The Region has applied though, for amendments to Certificates of Approval for their municipal landfills in Niagara Falls and St. Catharines to receive waste from outside of the Region. Two major private sector waste management firms operate out of this Region, one with its parent company located in Niagara Falls, New York.

Essex-Windsor: this area estimates that more than 100,000 tpy of NHW from the IC&I sector are exported to the U.S. through two privately operated transfer stations.

Kingston: no waste exports reported.

Simcoe County: some 25,000 tonnes of IC&I waste are presently estimated as exported (based on lost tipping fee revenues), a portion of which may be going to the U.S.

Dufferin County: currently about 10,000 tonnes of municipal waste are exported, believed directed to the U.S.

Based on the preceding, a comparison of 1992 data (from the report entitled "Export of Solid Non-Hazardous Waste From Ontario") with currently derived data is as follows:

As evident from the above, based on information received from the Ministry of Environment and from municipal specific data, an estimated 770,000 tonnes of NHW waste was exported to the U.S. in 1998. The export figure for that year was comprised of an estimated 506,000 tonnes of IC&I waste and 264,000 tonnes of municipal waste, the latter from the Toronto/GTA area and Dufferin County. Areas reporting significant quantities of IC&I waste exports also included Toronto as well as the Regions of Halton, Waterloo and Hamilton-Wentworth, Essex-Windsor, and Simcoe County. In some cases, particularly with the larger Regions, annual waste exports from the IC&I sector were estimated at more than 100,000 tonnes.
The Recycling Council of Ontario also note a significant level of trade in recyclable goods with the United States. Aluminum, plastics, textiles, etc. are currently exported while, with respect to paper and OCC, Canada is a net importer.

U.S. Customs Data

As initially observed in the 1993 Ontario Export Study, two harmonized system U.S. Customs commodity codes are thought to account for most non-recycled waste shipments. These are: "other waste and scrap of paper or paperboard" - tariff #4707900000 (SIC9100 - thought to capture most residential and IC&I wastes); and, "sawdust and other wood waste and scrap" -tariff #4401304090 (SIC2499 - thought to capture most construction/demolition waste). While these codes potentially include some wastes destined for recycling and exclude other waste categories (sorted, uniform materials such as tires, glass, etc.), they continue to represent the best available information from this source.

For this study, the Buffalo Export Assistance Center of the U.S. Department of Commerce provided recent U.S. Customs data for the two commodity codes. The data supplied was for all border crossings between Canada and the U.S. No breakdown by state or port of entry was available but, as it was suspected that most of the waste movements were occurring from Ontario, this data is presented in this section. Reported flows exported to the U.S. were as follows (all figures in tonnes):

A trend of declining waste exports is evident from the data, following an increase in quantities from 1996 to 1997. The percentage decreases in waste exports from 1997 to 1999, calculated annually, are approximately 38% and 76%, respectively (using data from the first half of 1999).

It is noted that the combined figures presented above are significantly less than those estimated for 1992 as reported in the 1993 Waste Export Study. This is an interesting observation considering that the most recent data is for all ports of entry, and not just from Ontario.

U.S. State Data

As documented in the 1993 Waste Export Study, U.S. waste management officials from various jurisdictions estimated the following waste imports for various states: Indiana - 3,100 tonnes; Michigan/New York - 220,000 tonnes; Ohio - 540,500 tonnes; and, Pennsylvania - 267,868 tonnes. In all, a total of 1,031,000 tonnes of NHW was reported as entering American landfills from Ontario. For the current study, only data from the State of Michigan was available.

As discussed in Section 4.7, the Michigan Department of Environmental Quality published a report on solid waste landfilled over the period of October, 1997 to September, 1998. As noted therein, all state landfills are required to annually report the amount of solid waste received by point of origin. While it was recognized that the data may include some limitations, Canadian waste imports were estimated at 2,548,815 cu.yds. for this period. This annual volume translates to approximately 811,000 tonnes based on an average compacted waste density of 700 lbs/yd³.

It is interesting to note that the 1993 Ontario Waste Export Study estimated that 220,000 tonnes of NHW were exported to Michigan/New York (combined) in 1992. This estimate, however, was based on very limited data (with only 4 out of at least 12 facilities in these two states reporting data). Industry officials indicated during that time that the 1991 waste export figure from Ontario to Michigan was thought to be as much as 700,000 tonnes.

Ontario Export Summary

As discussed throughout Section 4, accurate data reflecting the transboundary movements of NHW is very difficult to obtain in the absence of reporting from private waste management firms involved in this practice. Notwithstanding, it is suggested that a significant level of waste export is still occurring. Estimated waste exports for 1998 amount to almost 800,000 tonnes based on data from provincial and municipal waste management officials.

As a comparative check to the preceding, U.S. Customs Data from the Buffalo Export Assistance Center was also examined but found to be of limited utility. Problems were encountered with commodity code definitions, for example, and no breakdown by state or port of entry was available. Further, with only 120,000 tonnes recorded for the first half of 1999, the Customs data is in direct conflict with known values from Michigan and Toronto. With regards to information from Michigan, that State's data was interpreted to conclude that approximately 811,000 tonnes of Ontario waste was received for disposal over the period of October, 1997 to September, 1998.

As to the future, there is considerable uncertainty associated with the long-term export of NHW from Ontario. In 2000, municipal NHW exports from Toronto are expected to grow to 450,000 tonnes and significant quantities of IC&I waste exports (including construction/demolition debris) are also anticipated. In the longer term, it is noted that the main landfill serving Toronto, York and Durham (Keele Valley) is scheduled to close in 2002. Peel is anticipating the closure of their primary municipal site by the start of 2003.

Toronto is currently in the process of searching for long term waste management solutions. The Toronto Integrated Solid Waste Resource Management Process call for proposals (on behalf of Toronto and Peel, York and Durham Regions) resulted in several responses offering disposal in the U.S. York Region, in a parallel process, has also received proposals primarily from U.S. disposal facilities.

5.6.2 Ontario Waste Imports

As noted in Section 4, the 1993 waste export report did not reveal any data on waste imports into Ontario. Currently, the Ministry of Environment is only aware of one site receiving waste from the United States. An undisclosed amount of treated industrial waste is received at a private sector landfill in the Region of Hamilton-Wentworth.

As with waste exports, some data was available from the Buffalo Export Assistance Center, although only for one commodity code: tariff #4707900000 - "other waste and scrap of paper or paperboard". The data supplied (again no breakdown by state or port of entry available) showed imported quantities fluctuating between approximately 470,000 to 810,000 tonnes in the 1994 to 1999 period. While materials captured in this code are thought to include residential and IC&I wastes, waste import practices identified from other sources (see above) indicate that most of the noted material streams are not related to wastes directed for disposal.

5.7 Manitoba

Manitoba Environment Protection were unaware of any NHW exports from the province, only non-regulated bio-medical waste was identified as being shipped by BFI to North Dakota for disposal. No waste imports are also presently occurring. The preceding notwithstanding, the development of a provincial waste import/export policy has been recommended as part of a review of solid waste activities in Manitoba.

5.8 Saskatchewan

Saskatchewan Environment and Resource Management were unable to offer any specific transboundary movement data although they noted that there were a number of incidental imports/exports of NHW at border communities which share waste management facilities with U.S. municipalities. Imports and/or exports are not monitored or tracked by the department. The identified communities include the City of Lloydminster, the Town of Creighton and, the Village of North Portal.

The Saskatchewan Waste Reduction Council further identified one landfill, located in Estavan, as importing waste from the U.S. They also identified recyclable tires, plastics and aluminum cans as being shipped to the U.S. and scrap metal as being imported from Chicago.

5.9 Alberta

Alberta Environmental Protection had no knowledge of any NHW export activity. The only activities in this regard identified in the province were related to recyclables (primarily waste paper to the U.S.). The Recycling Council of Alberta also indicated that some collected plastics travel to the U.S. and Pacific Rim countries. No waste import activities were identified.

5.10 British Columbia

The Ministry of Environment, Lands and Parks does not regulate the import and export of non-hazardous wastes (defined as "municipal solid waste" or MSW). The responsibility for MSW management rests with the 27 regional districts in BC and their MSW Management Plans approved by the Minister of Environment, Lands and Parks. Export and import of MSW requires authorization by the approved plan of the exporting or importing jurisdiction, and regional districts have authority under the Waste Management Act to ensure that MSW is disposed of only in authorized facilities by licensed haulers.

The Pollution Prevention and Remediation Branch of the Ministry identified the following waste export activities (all directed to landfills in Washington State): Fraser Valley - 8,000 tonnes; and, Powell River - 6,000 tonnes. The identified wastes included municipal, institutional and commercial refuse. No information was available for industrial wastes although substantial quantities of contaminated soil were reported as exported during the stakeholder consultation sessions. The Squamish - Lillooet area was further identified as potentially exporting waste to the U.S. in the future.

One landfill (Fort Nelson - Liard, recently renamed Northern Rockies) reportedly received a minor amount, in the range of 200 tonnes, of imported waste from the U.S.

5.11 Summary

As summarized in Section 4, there have been several other attempts to quantify Canada's transboundary waste movements. One example, described in Section 4.6, was a study prepared for Environment Canada entitled "Assessment of Canadian Trade in Wastes/Recyclables, 1988-1995". This study examined import and export statistics using Statistics Canada's Harmonized System (HS) codes - an internationally based system. The report identified significant limitations with the ability of the HS system to track waste types, whether destined for disposal or recycling. For example, some HS codes potentially contain both hazardous and non-hazardous wastes or encompass both wastes and non-waste materials. The Trade Information Enquiry and Retrieval System (TIERS) database, which records all imports and exports was also examined. While the TIERS database is, in theory, a comprehensive record of Canadian trade, its usefulness for waste analysis was again found to be limited as it is based on the HS code system.

Notwithstanding, most trade in wastes was noted to occur within the OECD, with our largest trading partner being the United States. The quantities of waste exported to non-OECD countries were noted to fluctuate significantly. Certain materials were further noted to be of potential concern as hazardous wastes to some receiving countries, even though they were not considered hazardous under Canadian (or international) regulations. Tires and waste plastics were two examples cited.

Accurate data reflecting the transboundary movements of NHW continues to be very difficult to obtain in the absence of reporting from private waste management firms. While actual quantities are unknown, however, a significant level of waste export still appears to be occurring, primarily from Ontario. Waste import levels are also unclear although they are assuredly taking place at a far lower level.

5.12 Factors Influencing NHW Transboundary Flows

Where opinions were forthcoming from the stakeholder survey (Section 2.3), it was felt that economics played the most significant role in transboundary waste movements (primarily due to lower tipping/disposal fees in American landfills and (for imports) differences in currency values). Other factors noted were the proximity of neighbouring Canadian and American municipalities on either side of the border and the desire of multinational waste management firms to utilize their own waste disposal assets, wherever situated, for collected waste.

As recognized in Section 3.6, several provinces were identified as having policies or regulations in place to prevent or discourage waste imports.

5.13 Trade in Recyclable Materials

While not a primary focus of this discussion paper (there is no authority in CEPA to regulate the export or import of non-hazardous recyclable materials), all provinces generally reported some degree of waste export and/or import activity related to recyclable materials. A report entitled

"Study of the Transboundary Movement of Waste Into/Out of Canada", May 1995, (see Section 4.3) examined the nature and impacts of the transboundary movement of wastes between Canada and other countries. The report focused on non-hazardous solid waste, but also looked at other waste and selected categories of recyclables. The estimated transboundary movements of selected recyclable material streams in 1992 were summarized as shown below:

The report identified several key related aspects to these material flows, including:

• with regards to secondary metals, the total value of imports into Canada and the estimated earnings by employees represented an economic impact of almost $577 million; and
• an estimated 4,240 jobs were directly related to the availability of imported fibre. The total impact on the Canadian economy from waste paper imports was $336 million in 1993.

Given the scale of economic value and employment impacts involved, and the inter-relationships among the various waste streams, it was suggested that care should be exercised in examining significant changes to current practices/regulations.

In a related vein, a 1994 Policy Forum (Section 4.2) conducted by the Recycling Council of Ontario concluded, in part, that the export of solid waste to the U.S. was having a negative impact on the development of 3Rs industries. It was noted that waste diversion facilities which were established based on the expectation that sufficient quantities of materials would be available to sustain their operations were, in some cases, being impacted by waste export at lower prices.

6.0 DEFINITIONAL ISSUES AND WASTE REDUCTION PLANS

Certain definitional issues need to be addressed as key elements to the development of regulations for the 'export and import of prescribed non-hazardous wastes destined for final disposal', as some of these terms are not defined in CEPA 99. First, with reference to the term 'prescribed non-hazardous wastes', the new regulations require a definition of the term waste, and a list of materials that will be prescribed as non-hazardous wastes. Second, in reference to the term 'destined for final disposal', 'final disposal' needs to be defined. In both cases, it will be useful to consider the definitions contained in international agreements to which Canada is a Party, and relevant domestic definitions.

The last substantive issue relates to 'waste reduction'. Environment Canada has long held the position that while the transboundary flow of wastes remain possible (i.e. the borders remain open), such flows are to be minimized to the extent practical consistent with the principles of environmentally sound management. This position is consistent with both the Basel Convention as well as CEPA 99 (see Section 3). In the formulation of the proposed NHW regulations, therefore, the issue of what constitutes effective waste reduction planning needs to be addressed.

These issues are discussed in this section. As apparent, substantial reference has been made to input received during (and after) the February/March, 2000 stakeholder consultation sessions. This input is provided in Appendix D. Reference is also made to past studies and reports on the transboundary flow issue (Section 4) and this project's initial stakeholder contact survey (Section 2.3).

6.1 Prescribed Waste

Whereas CEPA 88 contained a definition of hazardous waste, CEPA 99 does not as the intention was to define 'waste' by regulation. In that regard, Environment Canada has been working in concert with the provinces under the aegis of the Canadian Council of Ministers' Hazardous Waste Task Group (CCME) to develop a national definition of waste. Two multi-stakeholder consultation sessions (in December 1996 and January 1999) were held where the proposed definition of waste was presented and discussed based on the consensus of the CCME. The currently proposed definition is as follows:

"waste" means any material that is disposed, destined for disposal, or is required to be disposed, and does not include recyclable material or any material used for its original purpose

This proposal is consistent with the definition of waste in the Basel Convention which defines wastes as follows: "wastes are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law."

Discussions on the definition of waste will continue as part of the regulatory development process. It is the intention of Environment Canada to incorporate the ultimately adopted definition in all federal legislation concerning the control of movements of wastes (pursuant to Division 8 Part 7 of CEPA 99), including any regulation concerning the export and import of prescribed non-hazardous wastes destined for final disposal.

As has been stated in several past reports (see Section 4), a clear and unambiguous list of which wastes will be 'prescribed' under the proposed regulations is also necessary. This issue is important to provide clarity to private and public sector entities involved in this trade.

This section should be read in conjunction with Section 6.2 which examines the definition of 'final disposal'. Depending upon the definition ultimately adopted for final disposal, some material streams will (as a result of their end fate) be effectively excluded from the proposed regulations, regardless of whether or not they might otherwise be 'prescribed' wastes.

It was suggested during the consultation sessions that the ultimately adopted list of prescribed NHW be consistent, as far as possible, with those in provincial regulations. There is much to be said for this suggestion, given that most waste regulation occurs at the provincial level. Concern was also expressed, however, that there is no consistent definition in the current provincial regulations. Such regulations are also subject to change.

The starting point when considering what wastes should be 'prescribed' might, therefore, be the Basel Convention. As noted in Section 3.1, Annex II of Basel includes "Other wastes" which lists two waste streams to be controlled as follows: household wastes and the residues from their incineration. The second point of reference would be the Canada-U.S.A. Agreement (Section 3.3). As amended in 1992, this Agreement also includes reference to "other waste" although in this instance this term is associated with municipal solid waste (as defined in domestic regulations) and incineration residue. Both terms arguably focus upon the origin of the waste stream.

Some of the issues and concerns noted by participants in the stakeholder consultation sessions with respect to these terms included:

• the terms household waste and, particularly, municipal waste are ambiguous and require clarification. It was suggested that waste is difficult to classify according to its point of origin;
  
• the identification of other waste as household waste in Basel appears to be expanding under the Canada-U.S.A. Agreement and, possibly, CEPA without apparent rationale. It was also suggested that the Basel Convention requirements were intended more for restricting waste to developing countries and there is not as much of a concern with American transboundary movements (Note: the Basel Convention requires Parties to control all transboundary movements, whether they are destined to developing or developed countries);
• neither term adequately address the way in which NHW is currently handled (i.e. collection trucks may pick up both municipal and commercial waste and waste transfer facilities may receive and co-mingle both residential and IC&I waste);
• both terms may exclude certain materials that are more commonly exported and destined for final disposal (such as construction and demolition debris). It was suggested that such excluded materials are still capable of generating adverse environmental impacts after disposal while also being very recyclable - they should, therefore, be discouraged from export (Note: the basis for the proposed regulations is a Prior Informed Consent procedure, and not the discouragement of transboundary waste movements); and
• a number of other special wastes, not explicitly handled by hazardous waste or non-hazardous waste definitions, would be left unattended.

Given the above, the issue of what materials should be prescribed should be carefully considered.

Further to the preceding, certain specific waste streams were identified as of concern during the stakeholder consultation sessions. These included: refrigerators* (CFC/freon issue); used tires; mixed plastics; special wastes from large industrial generators (e.g. expired cosmetics, paper sludge, foundary sand, etc.); gypsum; asbestos wastes*; residual material reused in an industrial process; contaminated soil*; autoclaved biomedical* or other sterilized wastes; international shipping (cruise ships) and airline wastes; as well as sewage treatment plant screenings. Some session participants expressed the concern that if these wastes were not 'prescribed' they should be subject to some other form of regulation (Note: preceding waste streams denoted with an asterisk (*) are already partly covered by the Export and Import of Hazardous Wastes (EIHW) Regulations).

Several alternative approaches to the definition of prescribed wastes were suggested during the stakeholder sessions. These alternatives, and some of their potential issues, are described below.

6.1.1 Define Prescribed Wastes as Any Material that is Not Hazardous

As outlined earlier, the CCME undertook a thorough review of the definitions and criteria which apply to the classification of hazardous waste and, more to the point of relevance to this report, the definition of 'waste' itself. The CCME has proposed the following definition of 'waste' as:

"any material that is disposed, destined for disposal, or is required to be disposed, and does not include recyclable material or any material used for its original purpose"

Recyclable material, as proposed to be defined by the CCME would include: "any material that is being recycled, destined for recycling or is required to be recycled, and does not include waste or any material used for its original purpose".

Based on the forgoing, one possible approach may be to prescribe all materials captured by the CCME's definition of 'waste' and that are not "hazardous wastes" under the Export and Import of Hazardous Wastes Regulation. This would provide for complete coverage of wastes under the federal regulatory scheme without the possible complications of inconsistent provincial definitions (alternatively, a limited number of non-hazardous waste streams could be prescribed -see Section 6.1.4). The key definitional issue under this approach, therefore, would be that of 'final disposal', which would operate to exclude from the regulation non-waste related activities and legitimate recycling.

This approach would also capture certain commonly exported materials (e.g., construction and demolition debris) that have been suggested as still capable of generating adverse environmental impacts after disposal while also being very recyclable. It may also satisfy some of the concerns related to the previously mentioned special wastes which are not explicitly handled by hazardous waste definitions.

The key disadvantage to this approach as noted by the private sector relates to the concern over 'expanding definitions' of subject wastes from that in the Basel Convention and the Canada-U.S.A. Agreement (and the corresponding impact on cost of operations). As was argued during the consultation sessions, some waste streams under this definitional approach may be essentially comprised of innocuous or inert materials.

One other (minor) disadvantage with such defined waste streams is that they will still have a portion of hazardous waste (e.g. household hazardous waste) mixed in with the waste loads.

6.1.2 Define Prescribed Wastes by Market Value

Essentially the premise of this approach is that any material that has a negative economic value (i.e. one has to pay to get rid of it) is a waste. Conversely, any material that has a positive economic value (i.e. someone pays you for it) is not a waste but is a recyclable material. While elegantly simple in its approach, several potential weaknesses for this definitional approach are apparent:

• the market value of materials can fluctuate widely over relatively short periods. What has a positive economic value one day may have a negative value thereafter, even though the subject material may still be considered as recyclable;
• further to the preceding, if a material that is recycled does not generate a profit, does that make it a waste?
• private sector firms wishing to circumvent a negative value to hauled waste may set up shell, non-arms length companies with which to trade falsely valued materials; and
• while a waste may have an associated cost for disposal, it may also have a positive avoided cost (i.e. net cost/savings may be positive if it is cheaper to dispose of elsewhere).

Due to these difficulties, regulators have in the past refrained from defining wastes using an economic value, and have preferred to provide more clarity to the regulated community.

6.1.3 Define Prescribed Waste using Pre-Established Content Limits

Under such a scenario, allowable pre-established percentages (by mass or volume) of waste stream components would be stipulated for transboundary material flows. For example:

1. in the event that the proposed regulations are specific to only certain components of the NHW stream, a maximum percentage of residential waste could be set. For instance, if construction and demolition materials were not designated in the regulation and a truck load of such waste contained residential refuse in excess of this percentage, the shipment could be deemed to be designated wastes; and/or
2. should concerns exist that hazardous waste is contained within NHW flows, a maximum limit of hazardous materials (e.g., HHW waste) could be stipulated - this may in turn motivate generators to pull more of these materials out of the waste stream.

Disadvantages of such an approach include difficult, time consuming and costly enforcement requirements, especially considering the somewhat limited resources of customs agents and environmental inspectors. Further, such a regulation may be particularly susceptible to abuse in that higher than permitted proportions of designated materials might be easily hidden in transported loads.

6.1.4 Define Prescribed Non-Hazardous Wastes by Listing

Alternately, all waste streams of concern could be listed. Such a list would have to include both waste streams of Annex II of the Basel Convention (household wastes and residues from their incineration), and any other waste stream of concern.

6.2 Final Disposal

A substantial degree of discussion took place in the stakeholder consultation sessions concerning the definition of 'final disposal'. As with the definition of prescribed wastes, this issue must also be addressed both to provide clarity to private and public sector entities involved in waste export and import and to ensure that there are no adverse impacts on the legitimate waste diversion sector.

As with the preceding section on prescribed wastes, the following discussion cannot be considered in isolation. Depending upon the definition ultimately adopted for 'prescribed waste', some material streams may be effectively excluded from the proposed regulations regardless of whether they would otherwise be considered to be destined for 'final disposal'.

6.2.1 Define Final Disposal as per EIHW Regulations

Defining final disposal as per Schedule I, Part I of the EIHW Regulations would be the simplest and perhaps most easily enforced regulatory approach. It might also be argued as the most consistent approach to meet the intent of the international legislation which entails the foundation for the proposed regulations, as Schedule I, Part I of EIWHR is based on Annex IV of the Basel Convention. In this respect, a notification would be triggered if a shipment of prescribed non-hazardous waste is destined to any of the disposal operations listed, whether they are environmentally sound or not.

When reviewing Schedule I, Part I of the EIHW Regulations, it is apparent that most if not all of the shipments of concern would be destined to two specific operations: Item 5 which is "Specially engineered landfilling, such as placement into separate lined cells that are capped and isolated from each other and the environment" and Item 10 which is "Incineration on land".

Such an approach would likely receive the most support from the private sector (to the extent that it supports the proposed regulations) and should be the simplest to confirm and police.

The primary disadvantage with such an approach is that it is not responsive to the concerns from certain sectors (particularly from non-governmental organizations) that have expressed a desire for a more aggressive approach to promote waste recycling/diversion. With respect to the concern that some landfills may be considered to not meet the concept of environmentally sound management, it should be noted that CEPA will give the Minister permission to refuse permits to such substandard facilities.

Some questions were raised during the stakeholder consultation sessions as to whether disposal facilities would be treated any differently if, for example, the site is providing energy recovery (i.e. as per Schedule I, Part II, item 1. of the EIHW Regulations, an operation using waste as a fuel in an energy recovery system is defined as recycling, which might not be controlled under a regulation concerning the export and import of prescribed non-hazardous wastes destined for final disposal). The issue of a disposal site receiving waste for the ultimate purpose of land reclamation was also raised with the suggestion that this is beneficial in that it conserves the use of clean soil or fill (again, with reference to Schedule I, Part II of the EIHW Regulations, item 10 defines land treatment that results in agricultural or ecological improvement as a recycling operation). Other questions concerned the use of waste materials for road bed construction, as fertilizer or for soil additives, and whether any or all of these should be considered 'final disposal'.

6.2.2 Define a Final Disposal Facility as Any Process taking Unsorted and Possibly Unprocessed Waste

The suggestion was made at some of the consultation sessions that any receiving facility that takes unsorted and even unprocessed waste materials should be viewed as a waste disposal facility. This would include a wide variety of waste management facilities such as landfills, incineration and energy-from-waste (EFW) facilities, plants producing refuse derived fuel (RDF), or other processes (pyrolysis, gasification, mixed waste processing operations, and possibly composting facilities) that accept waste materials that have not been pre-sorted or possibly preprocessed. The rationale in part for this position was that even legitimate mixed waste processing facilities can involve significant disposal and that some of these technologies are unproven in terms of their real diversion potential.

Such an all-inclusive definition was suggested by certain session participants even though it was recognized that in various jurisdictions, some such processes (e.g. EFW in British Columbia) are defined as recovery. Other session participants expressed the hope that re-use for energy purposes would not be included in the definition of final disposal. Others questioned the merits of exempting waste exports from this regulatory scheme where an energy producer wished to burn tires as a replacement for coal.

One suggested refinement of such a definitional approach was that all waste systems should be considered as final disposal unless full product recycling is proven. Recycling capacity for a particular waste stream in another country would have to be demonstrated by the exporter jurisdiction and markets must be shown to exist for the targeted materials. In this same vein, it was asked how the federal government would practically monitor compliance.

Such an approach should act to not impede the historic trade in bona fide recycled materials (e.g., it should allow flows of baled paper destined for recovery to be clearly distinguished and excluded). A wide net for the definition of 'final disposal' would, however, help ensure that specific facilities with a disposal function do not by-pass the regulation's control.

Disadvantages with this form of definition include the extensive degree of non-hazardous waste movements that would be captured by the regulation. Further, if most waste management facilities are considered as 'disposal-oriented', there may be less impetus to send materials to facilities that provide real waste diversion.

6.3 Waste Reduction Planning

As noted in Section 3, the Basel Convention requires signatory countries to take measures to minimize both waste generation as well as transboundary movements, subject to local limitations with regards to social, economic and technological factors.

Currently, although national guidelines exist with respect to waste diversion (e.g., CCME's 50% target for reducing waste by the year 2000), waste reduction is generally understood to fall under the primary jurisdiction of the provinces and territories. As might be expected, there is not a consistent approach on the part of these jurisdictions. Not infrequently, responsibility for waste diversion is left to local municipalities or districts.

Most provinces address waste minimization and recycling through various acts and supportive regulations and guidelines focusing upon environmental protection, quality and enhancement. Many of these legislative initiatives have a heavy emphasis on the municipal sector with the degree of attention paid to the IC&I sector varying significantly. In some cases, specific corporations and/or resource recovery funds (some industry based) have been set up to encourage and support 3Rs activities as opposed to imposing direct government interjection. Promotional and public education programs are common as are initiatives aimed at beverage container and tire recycling. Some provinces stipulate mandatory actions with regards to such activities as blue box or leaf and yard waste composting programs. Further, some provincial initiatives also include a focus on waste packaging supported by coordinated action at the national level.

With regards to the development of the subject regulations, concerns were expressed during consultation as to how the Minister plans to apply this new authority in relation to waste reduction planning. Interference with provincial jurisdiction was an issue for some stakeholders although it was recognized that the federal government has the jurisdiction to manage international trade. Most participants, however, agreed with the general aim of CEPA 99and the proposed regulations to promote waste reduction, subject to clarification on who would be considered to be the "exporter" for the purposes of these provisions (Note: the general aim of CEPA 99 is not 'waste reduction' per se but more the phasing out or reducing of exports destined for final disposal).

Several alternatives are possible in considering potential approaches to requirements for demonstrating waste reduction planning. These are discussed in this section.

6.3.1 Reliance on Current Government Programs

Under this option, the Minister would not exercise his new authority under CEPA to require waste reduction plans given that waste generators are assumed to already be complying with their applicable provincial requirements. To the extent that waste reduction progress is seen to be lagging in this regard, it was argued by some that it is the province's (and not the federal government's) responsibility to promote reduction.

This approach relies on the premise that all jurisdictions in Canada (and the U.S. in the case of imports) are already taking satisfactory measures to minimize transboundary movements of waste for disposal. The primary advantage of this alternative is that it eliminates the need for Environment Canada to extend its mandate into an area considered by many to be provincial jurisdiction (again while recognizing that the federal government has jurisdiction over international trade). Instead, each province would set waste reduction goals appropriate to local circumstances. Consideration could be given to equivalency agreements if existing provincial programs address the need to phase out or reduce exports of wastes destined for final disposal as per CEPA 99.

In practice, under this approach, a waste hauler might be required to reference an approved municipal/district waste master plan or reduction plan as a condition of permit. Disadvantages of this approach include:

• it is arguably not consistent with Canada's obligations under the Basel Convention to reduce waste generation;
• not all jurisdictions have the same level of enthusiasm for waste reduction or the same coverage of sectors generating waste (somewhat illustrated by a lack of statistical data supporting decreasing levels of waste export for final disposal); and
• provincial policies in this regard may change with each election.

With this approach, duplication should be avoided in any reporting requirements between the different levels of government.

6.3.2 Mandatory Submission of Waste Reduction Plans with the Notice of Intent

Under this option, as part of the Prior Informed Consent procedure (see Section 7.1), effective waste reduction planning would be required to be demonstrated specific to the waste generator. This requirement would extend to all sectors (municipal and IC&I) and to all waste streams for which export permits are requested. Upon the submission of a waste reduction plan, annual reporting might then be stipulated to demonstrate the projected implementation and success in meeting the stated targets prior to receiving any subsequent permits. All relevant supporting documentation would have to be initially obtained from the generators by the exporter and then submitted to Environment Canada.

While it might be suggested that private sector waste management firms involved in the export be defined as "exporters" for this purpose and assume responsibility to demonstrate effective waste reduction (or, as suggested during the consultation sessions, be required to offer waste reduction services) such an approach may be impossible or impractical in practice and at a minimum would result in potentially significant costs and burdens. Private sector haulers have no legal authority over their generator clients and little meaningful ability to influence their waste generation. Waste generators might also start to 'shop the market' for firms that are more pliable in enforcing waste reduction planning.

This issue might be less of a concern depending upon the definition of 'exporter' employed. Taking general guidance from Section 6 (e), Conditions on Exports for Disposal, of the Export and Import of Hazardous Wastes Regulations, an exporter may be defined as a person:

• whose activity generated the waste;
• who is removing the waste, from a site that the person owns or operates, for disposal; OR
  who collects or receives the waste and then processes it for disposal.

Based on the above, private sector firms that simply collect and transport wastes would not be defined as waste exporters.
Another disadvantage with the mandatory submission of waste reduction plans includes the significant federal government resources that would be required for permitting, review and policing. This is particularly true if each generator (municipal, commercial, industrial and institutional) was required to develop and file a waste reduction plan.

This option could be streamlined in the future with a more focused approach on the part of Environment Canada. In this respect, a data base could be assembled over time to demonstrate achieved levels of success in waste reduction planning. As some exporters would fall behind the average for their sector, Environment Canada could use the accumulated data to progressively focus its attention to these areas. Such focused approaches are discussed in more detail below.

6.3.3 Sector-Focused Requirements for Waste Reduction Plans

This option is premised upon the recognition that some exporters are of less concern than others. For example, some exporters or classes of exporters may be widely considered to be lagging generally accepted practices with regards to waste diversion. Further, as was suggested by some during the stakeholder consultation sessions, certain sectors (e.g., construction and demolition) may be perceived as generating waste materials that are of lesser concern. This option, therefore, could take several different approaches, including:

1. focus requirements on known significant exporters (e.g., larger waste generators) or classes of exporters and consider setting a threshold (by regulation) for annual waste exports above which the requirement to develop, submit and implement waste reduction planning would apply;
2. 'pre-approve' certain sectors that demonstrate a level of equivalency with some form of pre-determined standard;
3. focus requirements away from less environmentally significant waste streams (e.g., construction and demolition debris); and
4. concentrate requirements for waste reduction planning upon those sectors with more established end markets that are supportive of material recycling (e.g., beverage containers);
5. OR, concentrate requirements for waste reduction planning upon those sectors with emerging and less established recycling infrastructures that could benefit from some degree of regulatory support (e.g., plastics).

The basic premise behind more focused requirements for waste reduction planning is to lessen the number of plans that must be prepared and reviewed while being consistent with Canada's Basel obligations. A focused strategy would also direct attention and limited public sector resources to those areas of more apparent concern. One key disadvantage with such focused approaches is that different rules for different sectors could be viewed by some as discriminatory and, depending upon how they are developed and applied, arbitrary.  Compliance with international obligations is a further concern.

7.0 PRIOR INFORMED CONSENT & MANIFEST APPROACHES

Building upon the discussions on key definitional issues in Section 6, this section addresses Prior Informed Consent (PIC) and manifest/tracking alternatives for the proposed prescribed non-hazardous waste (NHW) regulations.

As with the key definitional issues, substantial reference has been made to input received during (and after) the February/March, 2000 stakeholder consultation sessions. This input is provided in Appendix D. Reference has also been made to past studies and reports (Section 4) and this project's initial stakeholder contact survey (Section 2.3).

7.1 Prior Informed Consent (PIC) Procedures

Prior Informed Consent (PIC) is one of the key components of Canada's international obligations in regulating the transboundary movement of NHW.

In this regard, representatives from both the private and public sectors indicated during the consultation sessions (see Appendix D) that the level of control or requirements under PIC should be developed in proportion to the actual environmental risks involved. Concern was noted that the proposed regulations could add an inordinate level of control and bureaucracy. A desire was noted to keep whatever was implemented as simple as possible (e.g., "A contractor should not have to fill out 50 pieces of paper to move a load of garbage"). When dealing with 'one-off' waste streams, further, potential time delays in getting approvals for removal were raised.

It was recommended that a balance be sought between economic efficiency (adherence to new regulations should not waste money) and effectiveness (regulatory structure should not be prone to abuse). In most cases there appeared to be widespread support that the proposed regulatory requirements should be less onerous than for hazardous waste (considering the relative levels of risk involved).

It was also suggested that the proposed regulations probably had more merit when considering transboundary flows to developing countries. In this respect, a list or database might be developed by Environment Canada identifying those jurisdictions (countries) where concerns exist with waste management practices. The full weight of the regulations would then be applied in those situations. With regards to countries with established environmental protection protocols (e.g., United States), the PIC requirements might be minimal.

A variety of more specific PIC-related issues were discussed during the stakeholder sessions. These are reviewed in this section.

7.1.1 Public Consultation

A substantial range of opinions were offered during the stakeholder sessions regarding the degree of public consultation that should accompany a PIC process. At one end of the spectrum, it was suggested that notices should be placed in the Gazette, the CEPA Registry, as well as the local newspapers of the host and exporting communities. A suitably defined period for public comment would then follow, perhaps supported by a plebiscite in the host (receiving) community. All gathered input would be considered in the Minster's decision.

Such a substantial degree of public consultation was rationalized based upon past experiences with public acceptance of waste facilities for local disposal but strong opposition concerning the importation of materials to the same locations. It was also recognized, however, that those suggesting such extensive consultation were fundamentally opposed to the concept of export and sought to make export approval as difficult as possible to obtain.

As might be expected, others questioned the need for any consultation to take place. This position was largely based on the non-hazardous nature of the subject waste stream, as well as the public consultation process that is part of disposal facility approvals in many jurisdictions.

Many alternative approaches are possible between the two ends of the spectrum identified above. In their future consideration, a balance will need to be sought between potential environmental risks and public transparency. Associated costs and time delays incurred in implementing any significant level of public involvement must also be given serious scrutiny.

7.1.2 Provincial/Municipal Levels of Involvement

It was suggested during the stakeholder sessions that proof of compliance with current regional, municipal or district solid waste management plans or the concurrence of the authority administering such plans be required in order to obtain an export or import permit. This was thought appropriate in order to help the jurisdiction administer and facilitate local 3Rs initiatives (particularly with regard to IC&I wastes). The exporting province and/or municipality would, as a result, have the right to approve of waste exports (note: this would be in addition to the federal authority contained in CEPA).

The other side of this issue was represented by the suggestion that PIC applications be 'non-generator specific'. In other words, Environment Canada would allow pre-set blanket approvals without the need to identify where the wastes are exported from, and certainly without the consent of the exporting province or municipality.

As with the public consultation issue outlined in Section 7.1.1, many alternative approaches are possible between these two positions. With respect to the first alternative, however, it is questioned how (i.e. with what authority) an exporting province/municipality could legally prevent transboundary movements of industry-generated waste. Any authority in this regard rests with the federal government. Again, associated costs and time delays with any significant degree of government interjection must be given serious consideration.

7.1.3 Frequency of PIC Applications

A wide variety of opinions were forthcoming from this project's consultation program on the necessary frequency for submitting both Notices of Intent as well as for receiving PIC. Ranging from the most intensive to the least intrusive, these included:

i. Notices/PIC applications required with every shipment/truck load;

ii. Notices/PIC applications covering multiple export loads to be filed annually (and be valid for one year);

iii. application frequency determined by length of tendered contract (e.g., 3 years if working under a 3 year municipal tender) covering all loads transported under the contract; OR

iv. a one-time, open-ended application with new submissions only triggered by changes in material flows (exporter might be required to file a statement declaring annual status).

While system transparency would be facilitated by more frequent application frequencies, the associated costs and level of effort involved must be taken into account as well as the relatively lower (as compared to hazardous waste) environmental risks inherent in the management of NHW. On the other hand, it might be argued that open-ended or multi-year application frequencies are only paying 'lip service' to the notion of PIC. More fundamentally, neither the Basel Convention nor the Canada-U.S.A. Agreement contemplate covering a period of more than twelve months.

7.1.4 Documentation Relative to Final Disposal Site

Many participants at the stakeholder consultation sessions appeared to see some merit in requiring proof of regulatory compliance as part of the PIC process. This would appear, however, to be duplicating or second-guessing the PIC process to a significant degree. A difference in opinion was also noted regarding the identification of specific sites versus multiple disposal locations. Alternatives discussed in this regard were as follows:

i. require the identification of a single, specific disposal site; OR

ii. allow the listing of multiple potential landfills under a single application.

As with most other PIC related issues, public transparency and system monitoring would be facilitated with a more focused and specific application process (i.e. the identification of a single disposal location). Taken together with the waste quantity issue discussed in Section 7.1.5 below, an approach allowing multiple listings in PIC might further be regarded as an unworkable departure from the requirements of Basel and the Canada-U.S.A. Agreement. Listing multiple receiving sites would, however, likely be welcomed by the private sector in that it increases program flexibility in their transport/disposal operations while also being reflective of the non-hazardous nature of the handled wastes.

It was also suggested during the consultation sessions that a pre-approved (by the importing jurisdiction) list of acceptable NHW disposal facilities be maintained by Environment Canada, indicating tonnage or other relevant restrictions if applicable. Unless associated environmental concerns were noted, or public opposition had been registered, consent could automatically be granted for their use. Such a system would recognize that some jurisdictions (e.g., the United States) have adequately stringent and comparable standards for landfill design and operations. Such a list would obviously have to be updated on a regular predetermined basis. It would further only work if Canada was able to secure consent from other countries to a departure from the process contemplated by the Basel Convention (or, in the case of the United States, the Canada-U.S.A. Agreement).

7.1.5 Waste Quantities

As might have been anticipated from Environment Canada's experience with the 1995 pilot voluntary notification program (see Section 4.4), a substantial level of opposition exists with some private firms regarding the notion of listing waste quantities on the export notice. The OWMA, for example, does not support any requirements for the advance prediction and notification of potential waste quantities. They consider environmental criteria to be of more significance and note that advanced predictions of tonnage will be unreliable and misleading. This latter concern is actually supported by Environment Canada's own experience with the notification regulation for hazardous waste exports and imports (they report that the number of applications for such waste far exceeds the actual movements that take place).

Further, the OWMA point out that many companies anticipating securing the same disposal contract will include the same volumes in their individual export or import applications, thereby creating a vastly overstated export potential. This situation could be exploited by a company that might quickly file a Notice of Intent (or overestimate waste quantities) with the objective of 'tying up' approved disposal capacity. The receiving host (importing) jurisdiction may also find itself in the position of having to deny approval for 'real' imports for a particular site on the basis of prior approved export applications. The usefulness of several sets of duplicate figures to the receiving jurisdiction was, as a result, questioned.

For waste imports into Canada, certain provincial environment ministries were suggested to be relatively unconcerned about subject quantities as there are often existing restrictions (service area and tonnage limits) in landfill certificates of approval which must be complied with by the operator. In such situations, the necessity for this information to be provided to the federal government was questioned.

Notwithstanding the preceding, it is difficult to conceive how the PIC process can work effectively or efficiently without waste quantities being part of the required information. In fact both the Basel Convention and the Canada-U.S.A. Agreement require this information.

A further concern of the private sector related to waste quantity reporting is the possibility of future assigned fees or duties (should Environment Canada move to make the application of the proposed NHW regulations economically self-sustaining). One alternative for Environment Canada in this regard may be to simply collect fees with the permit applications, without tying the fee structure to waste quantities.

7.1.6 Other Issues

Several other issues related to the PIC process were also raised during the stakeholder consultations. Outlined below, these issues are grouped together as they did not receive any significant degree of conflicting opinions with regards to their application.

Proof of Contract - The basic issue raised by the private sector here was that any requirement for proof of contract should not mean that contractual details would be provided to Environment Canada (i.e. commercial contract terms should be protected).

Tacit Consent - As contemplated by the Canada-U.S.A. Agreement, tacit consent is assumed by the exporting jurisdiction if no objection is filed within 30 days of issuing the Notice of Intent. Such a process is also favoured by private sector waste management firms for the proposed NHW regulations.

Port of Entry - Several options are theoretically possible concerning the identification of port of entry to the receiving country. These include: identification of a specific port of entry (as with hazardous waste); allowing several ports of entry to be listed (increases flexibility for hauler); and, removing the requirement to identify port of entry. Both Basel and the Canada-U.S.A. Agreement require port of entry information to be provided on the Notice, however.

7.2 Tracking and Manifest Requirements

Tracking and manifest requirements will, to a certain extent, be dependent upon the type and degree of information collected under the Notice of Intent or PIC process. For example, if waste quantities were not to be reported under the initial application procedures, it would not be necessary to subsequently track this information.

As noted during the consultation sessions, some provinces have become very focused on removing red tape and do not want to hinder the competitiveness of private industry. They further recognize that the environmental risks with NHW don't warrant the same precautions as with hazardous waste. The need for creative, practical approaches to tracking and manifest requirements was emphasized by several parties. The Canada-U.S.A. Agreement specifically contemplates this for 'Municipal Solid Waste' transboundary movements.

Alternative approaches with regards to tracking and manifest issues are discussed below.

7.2.1 Voluntary vs. Regulated Declarations

The concept of a self-administered (honour) system in which waste exporters/importers would file reports on some pre-established frequency (i.e. quarterly or annually) was discussed during the consultation sessions. Such reports would be periodically (or randomly) confirmed/checked at Environment Canada's discretion to look for possible discrepancies.

While most session participants recognized the benefits of simple and practical approaches to tracking and manifest requirements, most also felt that the system should not be voluntary. This opinion was based, in part, on Environment Canada's lack of success with the 1995 pilot voluntary notification program (see Section 4.4).

7.2.2 Degree of Public Disclosure

As noted in Appendix D, some participants at the consultation sessions felt that tracking and manifest records held by Environment Canada should be made public without the need for prior industry consent as is the current practice. This issue was of particular concern to environmental groups who believe that the public has a right to know about waste movements. There was also the concern that a request under the federal Access to Information Act might not allow one full access to these records.

It was further suggested by some, however, that a balance should be struck between transparency and privacy. Some private information, it was suggested, would have no implications to the issue of environmental protection. Additional discussions were recommended with the private sector on an appropriate level of disclosure.

7.2.3 Electronic vs. Paper Based Reporting

While a variety of approaches to tracking and system reporting were suggested by session participants, they were generally classified as being either electronic or paper-based. Input in this regard included:

i. multi-carbon papered manifests should be completed manually and carried through all parts of journey (i.e. from cradle to grave). Such a system might be supported by permit numbers on the trucks to allow Customs to efficiently record information; OR

ii. electronic based manifests, similar to systems used by courier companies, could be employed. The use of bar codes on trucks and/or manifests were also suggested to speed up information processing at the border. The OWMA further suggested the use of electronic keys at the border (it was noted that the government has the capability of allowing trucks to use such keys to help automatically track shipments).

While, as noted above, a variety of opinions were received on this issue, there also did not appear to be any significant opposition to the use of an electronic system, particularly for tracking purposes. Most participants recognized the inherent advantages of such an approach.

7.2.4 Frequency of Reporting

A variety of opinions were forthcoming from session participants as to an appropriate reporting frequency. Options suggested in this regard included:

1. weekly or monthly reports to be submitted;
2. annual reporting; OR
3. electronic tracking in place of any reporting requirement for the exporter (government can compile at whatever frequency it deems appropriate).

With any approach, periodic audits or spot checks might be employed to ensure compliance. In the event that longer application periods are deemed appropriate for PIC requirements, the necessity of submitting weekly or even monthly reports is questioned. Annual reporting or electronic tracking appeared to receive the most support during the stakeholder consultation sessions.

7.2.5 Degree of Reporting

Probably the most debated topic relative to tracking and manifest issues was the degree of reporting required from the waste hauler. While the merits of a simple approach were recognized by some parties, others felt that a full manifest system as in-place for hazardous wastes should be employed. Related options suggested in this regard essentially fell between the following two approaches:

1. Manifests be prepared for each shipment (i.e. not blanket approvals as for PIC), to support regular data analysis. Further, manifests to be filled out and carried by all parties that handle the waste regardless of the number of times it changes hands. As with hazardous waste protocols, a copy would be dropped off at Customs and the final section of the manifest would be completed by the receiving facility (i.e. essentially acting as a "death certificate"). The receiving facility would also be required to certify that the particular waste process intended to be carried out was indeed implemented; OR
2. Manifests not required with transported shipments. Further, certificates from the receiving facility as to the fate of the imported waste need not be submitted (it is being disposed of in an approved facility) and no additional paperwork (over that presently in place) would be necessary for Customs.

Associated issues related to the above are similar to those described earlier with other PIC and tracking/manifest approaches (i.e. public transparency and system monitoring vs. cost effectiveness and flexibility). Regardless of the ultimate approach adopted, it was suggested that Environment Canada prepare an Annual Report to inform the public of how much waste is crossing border and where it is going to (or coming from).

8.0 REGULATORY MANAGEMENT OPTIONS

As previously outlined in Section 2.6, further consultation/communication activities related to the development of the proposed NHW regulations are to be carried out following the release of this discussion paper. These pan-Canadian consultative events are to commence in the second and third quarters of fiscal year 2000/2001 and involve the full spectrum of potential stakeholders (all levels of government, the private sector and non-governmental organizations). Subsequent steps in the regulatory development process (Policy Paper, Draft Regulations, etc.) are also discussed in Section 2.6.

In order to assist with this exercise and provide an initial basis for these discussions, a range of alternative approaches for the proposed regulations are presented in this section. Observations have also been provided on some of the potential relative merits of these schemes; however it is not the intention of this discussion paper to suggest a recommended or preferred approach. The following material is provided for discussion purposes only and to illustrate how the incorporated components may interact with each other.

This section should be reviewed in conjunction with Section 6 (Definitional Issues and Waste Reduction Plans) and Section 7 (Prior Informed Consent and Manifest Approaches).

As outlined in this section, three regulatory approaches are presented to address a range of definitional issues and prior informed consent and tracking/manifest requirements. As is evident from these approaches, competing interests exist. Efforts to ensure full compliance with Canada's international obligations and to maximize waste reduction, for example, are often at odds with the desire to reduce levels of bureaucracy and minimize the associated costs and burdens to the regulated community. The three broad approaches discussed in this section are as follows:

1. Intensive Regulatory Coverage/Application;
2. Nominal Regulatory Coverage/Application; and
3. Intermediate Regulatory Coverage/Application.

For the preceding, the terms 'intensive', 'nominal' or, 'intermediate' are used simply as indications of relative levels of control provided, as well as the relative levels of effort required by both the regulated community and the regulator to implement the approach.

8.1 Intensive Regulatory Coverage/Application

This option reflects input received from certain stakeholders during the consultation discussions and represents the most stringent of the presented regulatory approaches. As illustrated on Figure 8.1, prescribed waste under this approach would be defined as any non-hazardous solid waste that is destined for final disposal. 'Final disposal' is defined, for this approach, as encompassing any facility or site that receives unprocessed and/or unsorted waste. Such facilities would include, among others, EFW plants, mixed waste processing operations and (possibly) composting facilities. In order to meet the requirement to demonstrate waste reduction, an exporter would need to submit reduction plans in order to receive an export permit.

For Prior Informed Consent, an extensive degree of consultation is envisaged, entailing public notification in the importing and exporting jurisdictions and (potentially) a plebiscite in the receiving community. An appropriate amount of time would need to be allotted to receive public comments. Government involvement would include notification to, and approval by, the exporting jurisdiction (to allow that jurisdiction to better manage local 3Rs programs) as well as the receipt of consent from the local importing jurisdiction.

Permit applications would be required with each shipment and would incorporate the specific identification of the final disposal facility (including proof of that facility's regulatory compliance). Projected waste quantities to be shipped would need to be documented and, ultimately, confirmed by reporting on a shipment-by-shipment basis.

With regards to waste tracking and manifests, full public disclosure of all received information (without prior industry consent) is assumed with this approach. Further, manifests would be prepared for each shipment and be processed during all steps of transport. A copy would be provided to Customs. Finally, the tracking system loop would be closed by requiring the receiving facility to submit a certificate confirming the appropriate handling/disposal of the received waste.

Of the three options considered herein, this approach provides the most significant level of support for waste minimization and environmentally sound management practices. It further boasts the greatest level of fulfillment towards Canada's international obligations in the regulation of transboundary waste movements and provides the highest level of public transparency. This option may also be the least vulnerable to abuse due to its substantial requirement for reporting.

Associated with this degree of waste control, this option will require far more significant levels of effort on the part of the regulated community and the regulator to implement (the latter with regards to administration, policing, etc.). This added level of bureaucracy will be considered by many (based on received stakeholder input) to be excessive and out of proportion to the level of environmental risks involved in NHW transboundary movements. This option would also have the greatest potential negative impact on trade and commerce because of the associated costs and burdens to integrate the system's requirements with current practices/policies.

8.2 Nominal Regulatory Coverage/Application

This option also reflects input received from certain stakeholders (primarily the private sector) and is intended to represent a position near the other end of the spectrum relative to the level of control envisaged with the previous approach.

With this approach, as illustrated on Figure 8.2, prescribed waste would be defined as any non-hazardous solid waste that has been collected by or on behalf of municipalities. Subject waste disposal facilities would include only landfills and waste incineration facilities. In its implementation, an exporter would not be required to demonstrate specific waste reduction activities, reference would simply be made to existing in-place municipal or provincial programs.

For requirements related to Prior Informed Consent, public consultation would be restricted to the posting of notices in the CEPA Registry (incorporating a minimal level of information such as the name of the waste hauler and type of waste to be shipped). No involvement of the exporting jurisdiction would be needed, notification would simply be made to the importing federal jurisdiction.

Under this approach, export applications would be permitted to cover periods in excess of 12 months (although it is recognized that this is not compliant with requirements laid out in the Basel Convention or the Canada-U.S.A. Agreement). Multiple potential final disposal sites could be listed, without the need for proof of their regulatory compliance. Further projected waste quantities would be identified in the Notice.

For waste tracking and manifests, public disclosure would be limited to an annual summary report by Environment Canada presenting data on a province-by-province basis. Waste manifests would not be required. Electronic tracking at Customs would take place.

Of the presented approaches, this option provides only a nominal level of support for waste reduction. While likely not consistent with most of Canada's international obligations for transboundary waste movements, it also does not provide a significant level of transparency for the public. Further, it is potentially vulnerable to manipulation because of its minimal requirement for reporting.

This option would likely receive the highest level of support from the regulated community because of its reduced level of bureaucracy and its lower associated costs and burdens to integrate system requirements with current practices/policies.

8.3 Intermediate Regulatory Coverage/Application

This regulatory alternative might be viewed as a 'middle-ground' or intermediate approach relative to that presented previously in Sections 8.1 and 8.2. As illustrated on Figure 8.3, prescribed waste under this approach would include municipal solid waste as well as waste from the industrial/commercial/institutional (IC&I) and construction/demolition sectors. Subject final disposal facilities would again (as with nominal regulatory coverage/application) encompass only landfills and waste incineration plants. The requirement to demonstrate waste reduction would be limited to a sector-focused approach (e.g., concentrating on larger waste generators only).

With respect to Prior Informed Consent, public consultation would also involve the posting of notices in the CEPA Registry (although incorporating an expanded level of information relative to the preceding approach). Notification to the exporting and importing jurisdictions would be included although consent would only required from the importing jurisdiction.

Notices and PIC would be dealt with on an annual basis, covering all shipments over that time. The final disposal site (receiving facility) would be identified in the application. Waste quantities would need to be projected at the beginning of the year, followed by reporting at the end of the subject period concerning the actual quantities shipped.

With regards to waste tracking and manifest requirements, public disclosure would (as with the approach identified in Section 8.2) be addressed through annual summary reports by Environment Canada. With this option, however, these reports would identify specific exporters and receiving sites.

While a shipment manifest system is not envisaged with this approach, 'rear-view' reporting would be expected from the exporter or importer detailing, among other things, the fate of wastes at receiving facilities. An electronic tracking system would be used at Customs to minimize paper work.

This option represents one possible intermediate approach to the previous two regulatory schemes, in which an attempt is made to arrive at a balance between economic efficiency and effectiveness, while complying with Canada's international regulatory obligations.

APPENDICES

Appendix A

Notice & Background Description

NOTICE OF UNDERTAKING

Development of Regulatory Options for the Export and Import of Prescribed Non-Hazardous Wastes Destined for Final Disposal

The Controls and Compliance Section of Environment Canada is undertaking an investigation of potential regulatory options concerning export from and import into Canada of prescribed non-hazardous waste destined for disposal. The assessment of regulatory options is to be done in consultation with public and private sector and non-governmental organization stakeholders. This project, to be carried out over the next six months, is intended to provide a comprehensive understanding of the issues and their inter-relationships including:

• the nature/extent of current and projected exports and imports of non-hazardous wastes destined for disposal (not recycling);
• Canada's international obligations as well as provincial legislative concerns relative to waste disposal and minimization;
• the definition of "prescribed" non-hazardous wastes;
• the successes and failures (operating history) of similar regulations already in-place for hazardous wastes; and
• other issues as raised by stakeholders.

Representatives from the public and private sectors and associated interest groups are encouraged to participate in the process. A mailing list is presently being developed through which you may receive project updates, news releases and, possibly, questionnaires. Further opportunities for participation will include stakeholder workshops planned for January 2000. A discussion paper will be drafted at the culmination of this project for further consultations with stakeholders.

This project is being conducted for Environment Canada by SNC-Lavalin and McCarthy Tétrault. Should you wish to be involved, please forward your coordinates (e-mail or fax preferred) to the address indicated below. You may also at this time (or at any time throughout the study) direct any comments, insights, etc. in a similar manner.

Your interest and participation in this process is highly appreciated.

SNC-Lavalin Engineers & Constructors
2200 Lake Shore Blvd. West 
Toronto, Ontario 
M8V 1A4

attn:

Jonathan Read, Project Manager
Phone: (416) 252-5311 
Fax: (416) 231- 5356 
E-mail: readj@snc-lavalin.com

ÉTUDE SUR LES TRANSPORTS TRANSFRONTALIERS DES DÉCHETS NON DANGEREUX

Objet: Avis de convocation - Jeudi le 24 février 2000

La Division des mouvements transfrontiers (DMT), qui fait partie de la Direction des déchets dangereux d'Environnement Canada, entreprend actuellement une étude portant sur les options de réglementer l'importation et l'exportation des déchets de type non dangereux dont la destination est l'élimination. Dans le cadre de cet exercice, une consultation auprès des intervenants privés et publiques, ainsi que les organismes non gouvernementaux est prévue.

Cette étude a pour but de bien comprendre l'impact des différents éléments que comportent cette problématique et leur interrelation relativement à:

• la nature et l'ampleur des importations et des exportations actuelles et éventuelles des déchets qui ne sont ni dangereux, ni des matières recyclées et qui sont destinés à être éliminés;
• les obligations du Canada au niveau international ainsi que la réglementation des provinces en matière de réduction des volumes de déchets destinés à l'élimination;
• la définition de ce qui est considéré comme déchets non dangereux;
• une revue de l'expérience connue par la réglementation en matière de déchets dangereux, autant au niveau des succès que des difficultés d'application.

Les représentants des secteurs publics et privés ainsi que les groupes d'intérêts associés sont ainsi invités à participer à ce processus. Une consultation auprès des groupes d'intérêt se tiendra, pour la région du Québec jeudi le 24 février prochain, à la maison mère de SNC¨Lavalin située au 455, boul. René-Lévesque Ouest, Montréal, à la salle 1510-B du 15ième étage.

Une liste des représentants des principaux groupes intéressés par le sujet est actuellement en élaboration. Au terme de la journée de consultation, vous serez informés de l'état d'avancement de l'étude par un document qui fera état des discussions avec les intervenants consultés.

Ce projet, commandé par Environnement Canada est réalisé par SNC¨Lavalin (Toronto) et McCarthy Tétrault. Lors de cette rencontre, monsieur Charles Cormier, Chef de la section des contrôles et conformité d'Environnement Canada présentera certaines précisions sur l'orientation de l'étude. Un ordre du jour sera aussi préparé et vous sera transmis au cours des prochains jours.

Nous vous serions gré de confirmer votre présence dans les meilleurs délais à l'attention du soussigné en précisant vos coordonnées. Une confirmation par courriel ou par télécopieur sera préférée. D'autre part, vous pouvez aussi nous faire part de vos commentaires de la même façon.

Votre intérêt et participation à cette étude seront de plus appréciées. - Bien à vous,

BACKGROUND TO UNDERTAKING

Development of Regulatory Options for the Export and Import of Prescribed Non-Hazardous Wastes Destined for Final Disposal

Introduction

The Basel Convention controls the transboundary movement of both hazardous wastes (Annex I and Annex VIII), and other wastes (Annex II). Canada implemented its obligations for hazardous wastes under the Basel Convention through the Export and Import of Hazardous Wastes Regulations made pursuant to the Canadian Environmental Protection Act, 1988 (CEPA).

Prior to Canada's ratification of the Basel Convention in August 1992, the Canada-United States Agreement on the Transboundary Movement of Hazardous Waste was amended to include controls of non-hazardous wastes destined for final disposal, to make it consistent with Article 11.2 of the Basel Convention. This amendment allowed Canada to continue to export and import non-hazardous wastes destined for final disposal with the United States, which is not a party to the Convention. At the time of the amendment, it was understood that once CEPA was renewed, regulations would be developed to control such shipments and allow Canada to fully meet its international obligations.

In 1995, the House of Commons Standing Committee established to review the Canadian Environmental Protection Act (CEPA) recommended that "CEPA be expanded to include the authority to implement Canada's commitment under the 1992 Amendment to the Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste to control the movement of non-hazardous solid waste to or from the United States" (Recommendation 84).

As a consequence, Bill C-32, which was tabled March 1998 in the House of Commons to revise CEPA, contains an authority to control the export and import of prescribed non-hazardous wastes destined for final disposal. This authority does not address exports and imports of non-hazardous wastes destined for recycling or recovery. Consistent with Canada's international obligations, the authority provides for:

• a requirement to notify the Minister of Environment of proposed imports, exports of non-hazardous wastes into or out of Canada destined for final disposal, or of transits through Canada or through another state;
• the ability of the Minister of Environment or the importing jurisdiction to refuse the shipment on environmental grounds; and
• a requirement to meet any other conditions contained in the regulation.

Development of Regulatory Options

Environment Canada is undertaking an assessment of potential regulatory options concerning export from and import into Canada of prescribed non-hazardous wastes destined for final disposal, and will be issuing a discussion paper in April 2000 on this issue. The discussion paper is intended to provide a comprehensive understanding of the issues and their interrelationships including:

• the nature/extent of current and projected exports and imports of non-hazardous wastes;
• environmental problems associated with exports and imports of prescribed non-hazardous wastes destined for final disposal;
• experience with Environment Canada's pilot project on a voluntary notification and reporting system conducted in 1995;
• Canada's international obligations as well as provincial legislative concerns relative to waste disposal and minimization;
• the definition of "prescribed" non-hazardous wastes;
• the successes and failures (operating history) of similar regulations already in-place for hazardous wastes; and
• other issues raised by stakeholders.

Next Steps

Following the distribution of the discussion paper, Environment Canada will be conducting country-wide consultations with stakeholders from all levels of government, the private sector and non-governmental organizations in the second and third quarters of 2000.

Following this multi-stakeholder consultation, Environment Canada intends to circulate a policy paper which would outline its regulatory plan in early 2001, and to issue a first draft of the regulations in the second quarter of 2002. The regulations would only come into force upon publication in the Canada Gazette, Part II, which is expected in the fourth quarter of 2002.

Appendix B

Stakeholder Contact List

APPENDIX B
STAKEHOLDER CONTACT LIST

APPENDIX B
STAKEHOLDER CONTACT LIST

APPENDIX B
STAKEHOLDER CONTACT LIST

APPENDIX B
STAKEHOLDER CONTACT LIST

APPENDIX B
STAKEHOLDER CONTACT LIST

APPENDIX B
STAKEHOLDER CONTACT LIST

APPENDIX B
STAKEHOLDER CONTACT LIST

Appendix C

Contact Survey Form

Appendix D

Minutes from Stakeholder Consultation Sessions

APPENDIX D

MINUTES FROM STAKEHOLDER CONSULTATION SESSIONS HELD DURING
FEBRUARY AND MARCH, 2000

This appendix documents the input received from various potential stakeholders regarding the proposed non-hazardous waste (NHW) regulations. As described herein, this input was solicited over the course of several consultation sessions held in Toronto, Montreal and Vancouver. Prior to the meetings, participants were provided with some brief background documentation as well as an agenda. As the meetings were intended to both provide information and encourage discussion on behalf of participants, the discussions did not always follow the agenda.

Each of the sessions consisted of a formal presentation followed by open discussion. The formal presentation generally commenced with the identification of the purpose of the undertaking and pending (this) Discussion Paper, as well as the drivers for this initiative. As noted at that time, these drivers include policy/regulatory commitments (e.g. Basel Convention). Further, the desire to manage wastes at home was recognized. In the event that wastes are to be exported for disposal, such quantities were to be minimized through waste reduction programs and assurance should be forthcoming such that any waste ultimately sent for disposal will be handled in an environmentally responsible manner. Environment Canada's long stated policy to maintain open borders while imposing controls on the movement of waste was further mentioned.

The next stage of presentation consisted of an outline of the regulatory and policy background to this undertaking. This included discussions related to the Basel Convention, the Canada-U.S. Agreement, as well as OECD actions concerning transboundary movements. Also discussed were the Export and Import of Hazardous Wastes Regulations and recent amendments to the Canadian Environment Protection Act (CEPA).

Subsequent areas of presentation touched on background studies and reports (e.g. Ontario export studies and the previous pilot voluntary notification program) as well as current waste quantities exported or imported for disposal. Previously formulated macro-level options regarding transboundary movements were then reviewed (e.g., regulatory monitoring, economic measures, bans and restrictions).

The formal presentation also touched on the next steps in this process (i.e. submission of Discussion Paper, consultations by Environment Canada, publication of draft regulations, etc.).

As outlined in the following pages, input was then received on a variety of issue-specific areas as related to the proposed regulations (e.g., definition of 'prescribed' wastes and waste 'disposal', prior informed consent (PIC) and tracking/manifest requirements, etc.). Session participants included representation from private industry, provincial ministries, municipal government and non-governmental organizations (NGOs). As might be expected from such a diverse group, some of the input received is occasionally contradictory.

During the discussions, most comments received were in relation to non-hazardous wastes. On some occasions, however, reference was also made to hazardous wastes. This was partly because the concepts of "non-hazardous waste" and "final disposal" were not felt to necessarily mirror concepts and definitions currently found in provincial or state legislation from which such wastes originate or are sent to.

Following each session, participants were provided with an electronic copy of their session's minutes. In the event that the assembled minutes did not accurately represent the presented viewpoints, recipients were encouraged to notify the study team.

TORONTO STAKEHOLDER CONSULTATION SESSIONS

The following consolidated minutes outline the results from three consultation sessions held in Toronto in February, 2000 as listed below:

• non-governmental organizations (NGOs) - February 17 (9:30 am);
• provincial ministry conference call - February 17 (2:00 pm); and
• municipalities and private waste management firms - February 18 (9:30 am).

Session participants are identified in the stakeholder contact list in Appendix B. For the Toronto sessions, facilitators were: Grace Howland (Environment Canada); Doug Thomson (McCarthy Tetrault); and, Jonathan Read and Ted Taylor (SNC-Lavalin).

AREAS OF ISSUE-SPECIFIC DISCUSSION

Definition of Prescribed Wastes

NGOs

• any mixed unsorted (prior to collection) waste or unprocessed (after collection) waste should be prescribed
• concerns about household hazardous waste necessitate that exporters be required to certify that no such waste included. Similar concerns exist for hazardous waste in commercial stream. The new regulations could be used as a lever to get generators to pull more hazardous materials out of the waste stream
• construction and demolition waste is very recyclable and, therefore, should be captured in regulations and discouraged from export
• future regulations should not be quantity specific, should be enforced for small loads as well
• refrigerators should be prescribed due to CFC/freon issue
  used tires and mixed plastics should also be prescribed wastes
• mixed waste sent to a compost or wet/dry facility should beprescribed waste. Some concern about use of product from mixed waste composting as landfill cover
• waste material sent for making a "fuel" is supporting incineration and, therefore, should be prescribed

Municipalities and Private Industry

• question if the Basel Convention or Canada-US agreement is driving the undertaking and why the Canada-U.S. Agreement expands the definition of non-hazardous solid waste from that in Basel
• Basel Convention is likely intended more for restricting waste going to developing countries. May not be as much of a need for regulations with U.S. - Canada movements
• the upside of regulating NHW is unclear, it is not hazardous and risk is minimum with most waste (except maybe tires).
• some U.S. sites take only construction and demolition (C&D) wastes and these wastes should be excluded (as more benign). Recognizing that there can be a component in C&D that is tainted, perhaps a minimum threshold of commingling could be defined
• further to the above, question if IC&I waste should be included
• must recognize special wastes from large industrial generators (e.g. expired cosmetics, paper sludge, foundary sand, etc.). Difficult to estimate quantities because they are handled internally and not typically captured by OWMA members, moving directly from generator to disposal facility
• it should be recognized that there are differences between transfer stations permitted for residential waste, IC&I waste, and those permitted for both. Further, waste flow is already regulated in the U.S. as well as in Ontario (by existing sites certificates and conditions of approval)
• what would happen if a State such as Michigan chooses to restrict waste imports and provides legislation to control this? Further, if the U.S. agrees to take wastes can Canada ban the movement?
• definition required as to when a material is a waste and not a recyclable. In this respect, some materials would change in classification in transit (i.e. from intermediate processing)
• market prices will often impact what a disposal facility will accept
• the Ontario MOE is trying to pull out recyclables from waste definition

Prior Informed Consent

NGOs

• current hazardous waste notification system doesn't work
• with regards to notices, simply putting them in Gazette is not acceptable. Should also go into the local newspaper of the host and exporting community
• also, post notices/applications in CEPA Registry (at a minimum). As this doesn't help non-professionals or those outside the country, further need public notification prior to consent along with a suitable period for public comment. Minster's decision should take into account input from public notice
• recommend a plebiscite in host community. Environment Canada to suggest options under 185(2) to show community consent is considered in determining ESM
• recognize, for example, that Smithville voted to accept a PCB incinerator to handle a local wastes but voted against OWMC's facility that would have taken material from farther afield
• do not need PIC for each truck load, blanket notices for multiple loads to a single facility are possible. Use the manifest system to ensure compliance
• philosophical problems with exporting waste in that it effectively reduces public and waste generator involvement in how it should be managed
• waste export should not be made too easy

Provinces

• some concern that the new regulations would add needless bureaucracy, especially if a province has other systems in-place
• PIC may not be necessary, if put in place, however, question need for every shipment
• the requirement for reduction plans and tracking/reporting generally valid

Municipalities and Private Industry

• if PIC put in place, it must be simple
• rather than identify a single disposal site, should be able to provide a list of potential landfills that might be used (while showing that they are properly permitted)
• also, requirement to identify single port of entry should be removed (or allow several to be listed)
• further, it is difficult to predict the quantities for a year. The government does not need to know these numbers, rather could provide an actual total at end of year (i.e. a rear view annual report showing total wastes shipped)
• if several waste haulers are bidding on the same contract and intend, if successful, to ship the waste quantities to a particular site in Michigan (for example), what use are all these duplicate figures to the subject state or jurisdiction
• there is potential for competitive abuse if some companies tie up available U.S. landfill capacity in the above manner
• consider listing certain jurisdictions (countries) where there are concerns, and apply different rules for those jurisdictions (i.e. exemption for U.S.)
• with regards to frequency of Notice, suggest filing a maximum of once a year (pre-approval)
• the Ontario MOE would not be so concerned about quantities coming in as there are service area and tonnage restrictions in landfill certificates of approval. If province of receipt doesn't care, why would the federal government be concerned?
• tacit consent procedures supported (if don't hear from receiving jurisdiction within 30 days -at most - should assume consent)

Tracking and Manifest Issues

NGOs

• tracking/manifest records should be public information without need for industry consent
• manifests are necessary as part of an enforcement scheme. They should be filled out and carried by all parties that handle the waste regardless of the number of times it changes hands
• a carbon paper manifest is not a burden given that trucks already need to submit papers to get over the border (the manifesting should be carried out from cradle to grave)
• manifest can also be electronic, similar to systems used by courier companies
• should be a manifest for each shipment, i.e. not for blanket approvals as for PIC. Individual manifests necessary to support monthly (for example) reporting
• if filing weekly/monthly reports, still need individual shipping document by the truckload as well as "death certificates" at landfill
• Environment Canada should provide annual reports for both hazardous and non-hazardous transboundary waste movements
• Resilog states how much waste was applied for in a shipment but does not state how much was actually shipped

Provinces

• some provinces have become very focused on removing red tape and do not want to make industry uncompetitive. Environmental risks with NHW don't warrant the same precautions as with hazardous waste
• a simplified tracking system is suggested v.s. a full manifest system
• need to consider creative, practical approaches

Municipalities and Private Industry

• as not dealing with hazardous waste there is no need to follow hazardous waste manifest guidelines/protocols
• question the purpose of shipment tracking
• the more documentation generated the less important each piece of paper becomes
• suggest use of electronic keys at the border. Government has capability of allowing trucks to use such keys to help automatically track the shipments. OWMA previously suggested this approach
• consider a simple annual report with audits conducted to ensure data is valid

Waste Reduction Plans

NGOs

• the obvious target is the generator to submit waste reduction plans
• could ask hauler to confirm that a municipality or business has completed a diversion plan. However, this may be easier for Environment Canada to do
• waste transporter may have to attach waste master plan or reduction plan for originating municipality as a condition of 185 permit
• would also need to ensure that reduction plans have been implemented over the previous permit period and that targets were met prior to re-applying for/approving a subsequent new permit
• could require transportation service provider (hauler) to offer waste reduction services
• possible models for waste diversion plans could include: Section 56 Pollution Prevention Plans template with respect to the need to set targets, Ontario Regulations or Massachusetts example
• question if the new regulations should contain waste reduction targets
• question if there is a National waste management plan that feds have established for their own departments. If not, need for a federal waste reduction plan noted

Provinces

• the requirements for waste reduction plans are a good idea
• question what a recycler would have to go through to prove recyclables are going for recycling
• when does recycling become disposal?

Municipalities and Private Industry

• should defer to each province to set waste reduction goals or 'level of equivalency'
• what right exists to refuse permits if province has a waste reduction plan? Should not layer on more requirements
• question who is defined as the exporter (i.e. municipality or the hauler). This can be a function of the contract terms between the hauler and municipality/generator
• unclear how the Minister plans to apply this discretionary authority
• need a special definition of waste generator for the purposes of the new regulations
• haulers won't be interested in reducing waste because they are in business to haul and have no incentive to reduce quantities
• in some cases, the need for waste export may occur if diversion plans are successful and quantities drop off drastically, reducing the requirement for new landfill capacity to the extent that its becomes too expensive to locally establish
• for border municipalities, it may be more enviromentally friendly to go over border for landfill capacity
• under 188, authorities could deny approval to move waste if reduction plans not implemented satisfactorily
• question what would happen if province or exporter challenged by an NGO that waste diversion targets have not been met - could this lead to a blanket cancellation of permits, in case of province being challenged
• concerned that recycling markets are in a constant state of flux, as the value of materials decrease, recycling levels decrease

Definition of Waste Disposal

NGOs

• waste disposal definition should include landfill, incineration, EFW, thermal processing (e.g. pyrolysis), wet/dry without pre-processing and, storage pending disposal
• aim to promote source separation and processing
• anything exported for processing will have a portion directed to landfill
• consider all waste systems as disposal unless proven recycling. Recycling capacity for a particular waste stream in other country would have to be demonstrated
• material sent across the border for recycling would require proof that material is recyclable and that a market exists for the material
• as long as cheap disposal exists in the U.S., recycling programs will be undermined in Canada

Municipalities and Private Industry

• need to be aware of sham recycling. This issue is complicated in that some legitimate facilities will change the amount and type of material they recover based on market conditions
• question if there is a % of processing and material diversion that has to occur to be considered recycling v.s. disposal
• question if facilities would be treated any differently if, for example, a landfill is providing gas recovery or an energy producer wants to burn tires for replacement of coal
• some parties pay haulers to get rid of recyclables (PVC and drywall) - causes a grey area

Other Issues

NGOs

• has there been any changes to the U.S. regulatory environment in this regard? Have amendments been made to RECRA to allow controls to be put into place in U.S.?
• RCRA public consultation process does not include the point that some waste will come from Canada
• is Quebec's law restricting waste import under challenge?
• also concerned that there is a sizeable quantity of waste waiting to come into Quebec
• any new federal regulations shouldn't be allowed to override Quebec's prohibition of waste import or Ontario's landfill service area restrictions, for example. Don't want to open the door for overturning existing provincial positions
• in 1985, wastes were coming to Toronto's Keele Valley landfill from as far away as Kentucky when tip fees at this landfill were as low as $18/tonne
• Ontario appears to be moving in the opposite direction to Quebec with respect to landfill service area boundaries
• if waste is restricted from disposal in a province, but is allowed for disposal in U.S., does it constitute a non-environmentally sound management practice? We should not accept as ESM elsewhere, what we wouldn't accept here
• no wastes should be exported as it impedes development of 3Rs programs (consistent with Basel Convention). Also, environmental concerns with respect to fuel usage and the problem of transferring waste from good to poor economic jurisdictions
• Section 186 provides the Federal Minister the authority to prohibit waste movement. What are the trade implications if Environment Canada wanted to shut borders?
• how broadly will "waste to be landfill in an environmentally sound manner" be defined?
• will existing contracts be grandfathered?
• would support Option 3 (fees) or Option 4 (bans)

Provinces

• provinces would like to see Discussion Paper after produced but before being made public
• question if the process is formally going through CCME (if not, when?)
• how would the new regulations affect imports to a provincial landfill? Would they function without an equivalent American set of rules?
• are there any NAFTA-related issues?
• question if landfills currently importing waste would have to go through a new set of approvals
• British Columbia has regional waste management plans which include service areas approved by Regional Directors. This controls trans-jurisdictional movements
• why should Canada have to carry out extra due diligence to confirm U.S. facilities have sound environmental practices? This may be appropriate for other countries, however
• need to be creative in developing the rules on how we treat U.S. versus other countries

Municipalities and Private Industry

• has consultation been undertaken with other provinces that don't export or import?
• as Quebec doesn't have waste reduction plans, question their ability to move waste
• could American firms get approval to receive Canadian waste?
• consider notion of equivalency be introduced between provinces
• has Industry Canada or others (Competition Bureau, trade groups, etc.) had any participation at a macro level? This will become an economic issue as much as an environmental one
• has participation of CCME been considered or involvement of provincial ministries other than environment ministries
• shouldn't use regulations to restrict trade or jobs
• are waste import issues as much of a driver as export issues?
• all should understand that there will be local disposal options available (i.e. Kirkland Lake)
• if border cut off you remove options available to private sector
• is there an aim by Environment Canada to recover costs?
• concerned about being denied permits under 185(2). For Minister consent would need to ensure facilities environmentally sound

MONTREAL STAKEHOLDER CONSULTATION SESSIONS

The following minutes outline the results from two consultation sessions held in Montreal in February, 2000 as listed below:

• waste management industry representatives - February 24 (9:30 am); and
• Quebec Ministry of the Environment (MENV) and environmental groups - February 24 (1:30 pm).

Session participants are identified in the stakeholder contact list in Appendix B. For the Montreal sessions, the facilitators were: Charles Cormier (Environment Canada); Katia Opalka (McCarthy Tetrault); and, Luc Massicotte (SNC-Lavalin).

AREAS OF ISSUE-SPECIFIC DISCUSSION

Morning Meeting with Industry Stakeholders

Definition of Prescribed Wastes

• request for a clear definition of "wastes" in upcoming regulations and that such definition be consistent with those found in provincial regulations. For example, wastes should be classified by function of their level of dangerousness rather than by means of generic criteria
• noted that the process of determining which wastes will be prescribed will involve reference to multilateral agreements
• questioned if a residual material reused in an industrial process would be held to be a waste under the new framework
• Quebec's notion of "special wastes", which falls outside of the definition of solid waste found in the Solid Waste Regulation (Quebec), was recognized
• suggested that materials such as ashes from waste treatment facilities and home appliances should not be considered as dangerous wastes
• requested that a classification and definition of "non-hazardous wastes" be made available before the next consultation meetings
• suggested that the concept of raw materials must be defined in the context of any future regulations
• noted that borders between provinces are real, particularly with regards to waste classes, which are not always harmonised
• noted that as the U.S. are not signatories to the Basel Convention, they must amend their legislation in order to harmonise their waste classifications
• hope expressed that certain "niches" which currently exist for the disposal of certain types of industrial waste will not be lost (are materials which can be reused in industrial processes wastes or products?)
• noted that Canada has adopted the U.S. leachate test for the purpose of facilitating classification

Definition of Waste Disposal

• hope expressed that re-use for energy purposes would not be included in the definition of final disposal

Prior Informed Consent

• agreed that it is too soon to discuss details of notification requirements including those in connection with multiple shipments from the same location in the course of one year, who will be required to give such notification (the notion of "exporter"), or what the content of such notification should be
• remarked that the prohibition on importing wastes found in the Solid Waste Regulation stems from the government's reaction to media reports and is not in the best interest

Tracking and Manifest Issues

• concern expressed that transport movements across provinces remain un-impeded
• noted that no manifests are required for recyclable wastes
• certain examples of regulatory discrepancies between provinces were raised. An Ontario transporter can operate and tip certain wastes at sites in Ontario while Quebec industry can not. A Quebec hauler must register a place of business in Ontario
• the example of hazardous substances was raised, where a Canadian hauler must operate through a U.S. transhipment facility, which sends the shipment to another state using an American hauler
• the problem of tracking imported and exported wastes was raised - without a clear waste classification, difficulties were recognized in carrying out inspections and identification work in connection with prescribed wastes

Waste Reduction Plans

• the export of used tires, having little or no tread, as "products", is an example of problems associated with the definition of waste reduction. In addition, certain metals used and reused as raw materials in industrial processes could, depending on the applicable definition, become wastes
• suggested that there should not be any controls on the movement of recyclable hazardous wastes
• in Quebec, the adoption of a new policy regarding residual materials is expected to result in an increase in the cost of waste disposal, given MENV's intention to encourage the regionalization of waste processing and disposal

Other Issues

• industry stakeholders asked that the upcoming consultative review of the proposed regulatory framework encompass all elements of the upcoming legislation
• Environment Canada encouraged to create an environment which will standardise requirements across provinces and make them equitable from one province to another
• question why a bilateral agreement with only one country couldn't be an option (i.e., why not simply modify the existing Canada - U.S. agreement?). Is the adoption of regulations which meet the requirements of multilateral agreements absolutely necessary?
• question raised regarding NHW; i.e. should the legal framework be seen as a "common clause"? Noted that amendments to CEPA are suppletive to provincial regulations
• the Centre Patronal de l'Environnement du Québec registered its interest in working with Environment Canada in the current process and asked that every effort be made to avoid imposing a heavy administrative burden on industry
• noted that the U.S. federal government has the power to impose minimal environmental standards on states, something which cannot be done in Canada

Afternoon Meeting with Environmental Groups and MENV

Definition of Prescribed Wastes

• certain clarifications provided by representatives of the MENV regarding the Solid Waste Regulation (Quebec) and the classification of certain materials (wastes or not, special wastes, other)
• noted that it would be difficult to harmonise the notion of NHW with the notion of "residual material" now found in Quebec legislation
• estimated that only 1% of materials sent to recycling are recycled outside of Canada. Consequently, the decision not to include recyclable materials within the upcoming legislation will have little or no impact
• residual materials could be classified in function of their calorific or agricultural value
• importance of clear waste classifications was underscored

Definition of Waste Disposal

• while the dumping of used tires is similar to final disposal, it is considered to be a storage activity
• stated that permanent storage cannot be considered to be a form of final disposal
• noted that many materials imported for the purpose of reclamation undergo only a small amount of processing and are then sent to landfills
• the burning of plastics was agreed to not be a sound environmental practice

Prior Informed Consent

• asked whether the federal government intends to create standards governing the decision of a province to accept or refuse materials coming from outside its boundaries

Tracking and Manifest Issues

• "confidentiality" issue worries certain environmental groups because it limits the public's right to know about waste movements
• all present agreed that voluntary measures are doomed to failure and were pleased to learn that, based on past experience, voluntary initiatives would not be entertained. Participants then mentioned the voluntary program being advanced by Recyc-Quebec
• as Transport Canada will gradually withdraw from the field of hazardous wastes, question who will ensure control over such wastes. Suggested that arrangements be made with provinces to allow shipping documents, for example, to be monitored by provincial ministries of the environment
• MENV representatives noted that they are aware that Quebec transhipment facilities are used to import (hazardous) wastes to Quebec illegally. They stated that MENV keeps close track of such activities
• for transhipment facilities, it was asked whether wastes transiting through such locations will be regulated and if so, how

Waste Reduction Plans

• recycling noted as a concept which is defined in multilateral agreements and relates to uses. As a result, it cannot be classified as an activity that generates non-hazardous prescribed wastes
• stated that reduction at source should be of concern since a significant percentage of consumer products sold in the Canadian market originates outside the country
• hope expressed that upcoming legislation will favour the reuse of home appliances and that the reuse of industrial wastes in manufacturing processes will be encouraged
• relevance of proposed legislation called into question in light of the upcoming implementation of Quebec's action plan for the management of residual materials
• asked how the federal government will ensure that an exporter's action plan (for waste reduction) is complied with once materials have left Canada

Other Issues

• noted that a major landfill is set to be closed and that most landfills in Quebec are owned by a single company. Concern expressed that in the near future, exports of Quebec wastes to Ontario or the United States will increase

• also noted that in Quebec, the import and export of NHW is not a significant problem and that the current legislative initiative could have the undesired effect of sparking interest in exports
• questioned what the Canadian government's interpretation of "ecologically efficient management" concept will be, given that this is now the guiding principle in waste management matters
• cautioned that low meeting turn-out should not be interpreted as sanctioning a one-sided process. The importance of providing government funding, given the groups' extremely limited financial resources highlighted
• current federal legislation noted to have certain weaknesses. An example was given of asbestos wastes from another province being sent to Newfoundland with the approval of Environment Canada. It was said that the approval was granted on the basis of "ecologically-efficient management" even though from a technical perspective, the project was not entirely sound
• question whether necessary resources (personnel and funds) will be available to implement the new legislation (example given of hazardous waste imports of questionable legality by an American company from a location in the Saguenay; neither the federal nor Quebec government have investigated)
• general agreement that the Basel Convention was a victory for the environment

VANCOUVER STAKEHOLDER CONSULTATION SESSION

The following consolidated minutes outline the results from a consultation session held in Vancouver on March 10, 2000, beginning at 9:45 am. Session participants included representation from non-governmental organizations (NGOs), British Columbia Ministry of Environment, Lands & Parks, local regional districts, and private sector waste management firms.

Session participants are identified in the stakeholder contact list in Appendix B. For the Vancouver session, the facilitators were: Doug Thomson (McCarthy Tetrault); and, Jonathan Read (SNC-Lavalin).

AREAS OF ISSUE-SPECIFIC DISCUSSION

Definition of Prescribed Wastes

• question if everything that isn't in Basel as listed wastes would be prescribed wastes
• should focus definition on end-use/fate of transported wastes (i.e. anything sent for disposal is a prescribed waste)
• concern about small quantities of hazardous wastes in NHW loads
• further to the above, consider a rule/guideline for allowable levels of hazardous wastes
• would be concerned if demolition and construction waste was made exempt, this waste is not benign with associated leachate problems noted in some existing sites
• definition of prescribed wastes should be consistent as far as possible with provincial laws
• question about status of contaminated (non-hazardous) soils and if they would fall within the proposed regulations
• definition status of gypsum or asbestos wastes questioned as well as other materials with regards to the materials being hazardous or not hazardous
• need to be very sure as to what is a special or a hazardous waste
• substantial quantities of contaminated soils currently transported out of British Columbia (last few years quantities have ranged from 10,000 to 80,000 tonnes/year)
• further questions about autoclaved biomedical or other sterilized wastes, international shipping (cruise ships) and airline wastes, as well as sewage treatment plant screenings
• if not included, these other wastes are left hanging and should be subject to some form of regulation
• jurisdictional issues need to be addressed

Definition of Waste Disposal

• question about waste sent to a disposal site that is ultimately meant for land reclamation (site might be intended for conversion to pasture land, for example). This is a beneficial use - still considered as waste disposal?
• such waste material used for land reclamation/rehabilitation actually conserves use of clean soil in such a process
• further to the above, question about materials used for engineering purposes, such as for road bed material
• opinion offered that post closure use of 'disposal site' should not have an impact on definition of waste disposal
• suggested that waste disposal be defined as something you have to pay for (i.e. if you have to pay to get rid of it, it's a waste). Conversely, if the waste material has a positive economic value it may be a recyclable waste
• concern expressed that something may have a cost for disposal but the costs might be less than what would be incurred locally. Therefore, there is an associated cost but a net cost reduction/saving
• a concern with the preceding was suggested that using 'net' costs as a definitional issue may result in front companies being established to hide the money flows
• suggested that receiving jurisdiction should have to prove that waste is not going for disposal
• query as to what percent residue is appropriate for a 'recyclable' material stream
• noted that EFW is defined as material recovery in British Columbia. Regardless, it was suggested that the regulations should still track the associated wastes
• transported unprocessed mixed waste should be considered as going to disposal
• question about materials used as fertilizer or for soil additives

Prior Informed Consent

• need to find the right balance between economic efficiency (adherence to new regulations should not waste money) and effectiveness (regulatory structure should not be prone to abuse)
• proposed regulatory requirements should be less onorous than for hazardous waste
• private sector concerned that whatever is implemented should be simple. A contractor should not have to fill out 50 pieces of paper to move a load of garbage
• suggested that proof of compliance with current regional solid waste management plans be required
• further, proof of regulatory status (certificate of approval and statement from local jurisdictional authority that the facility is in compliance) was identified as a PIC requirement
• alternative PIC approaches suggested included: have a one-time application that is open-ended with new PIC applications only triggered by a change in material flows; use a term definition longer than 1 year (e.g. 5 years, noted that municipalities don't award 1 year contracts - if they did they would be continually letting new contracts); allow the exporter to file a statement saying no change from previous year (if no substantial change in status)
• requirement for proof of contract should not mean that contractual details would be provided to Environment Canada (contract terms should be protected)
• concern expressed about one-off waste streams (e.g. contaminated soils from a site cleanup/remediation project) and possible time delays in getting approvals for removal
• suggested that local region (where waste originates) should approve of export in order to help administer/facilitate/promote local 3Rs efforts. The exporting province and/or municipality should have right to know and approve of waste movements. This was noted as more of an issue for IC&I wastes
• suggested that PIC applications be 'non-generator specific' (i.e. allow pre-approved blanket approvals without the need to identify where waste will be coming from)

Tracking and Manifest Issues

• question if a Freedom of Information request would allow one full access to Environment Canada records
• suggested that a balance is required between transparency and privacy. Some private information has no implications to the environment. Should let industry propose the appropriate level of disclosure
• electronic reporting on an annual basis suggested by industry. Spot audits can then be carried out.
• for contaminated soils, approvals and manifest requirements were suggested to be based on total project volume
• alternative tracking approaches might include putting bar codes or permit numbers on trucks or, bar codes on the manifest, to allow Customs to efficiently record information
• noted that bills of lading (custom manifests) currently accompany shipped loads of recyclable materials

Waste Reduction Plans

• consider allowing private industry, prior to export, to address waste reduction issue by simply stating that they fall within a particular region that has a waste reduction plan (e.g. approved Regional District Solid Waste Management Plan)
• noted that Environment Canada could be in the position of denying export in a province that is behind in implementing waste reduction programs
• heavy industry waste stream (e.g. mill rejects, metals waste) do not fall within local waste reduction plans. This does not mean Environment Canada can't step in and request some demonstration of waste reduction plans for these industries

Other Issues

• question why U.S. did not enter into Basel Convention
• question how Section 190 (equivalent level of safety) is assessed; i.e. against what benchmark
• question if Subtitle D is still an issue in the U.S.
• concern about the proposed regulations becoming a free trade issue and possible challenges by the U.S. under NAFTA
• noted (by DINA) that proposed regulations might also benefit the First Nations. If applied to reserve boundaries the regulations may help add a level of control over reserve disposal sites

OWMA SUBMISSION

REGARDING

ENVIRONMENT CANADA CONSULTATION MEETING

for

"Development of Regulatory Options for the Export and Import of Prescribed Non-Hazardous Wastes Destined for Final Disposal"

Consultation meeting date: February 18^th, 2000

INTRODUCTION:

The Ontario Waste Management Association (OWMA) represents 319 member companies and individuals involved in the waste services industry in Ontario. OWMA has been an active stakeholder in the development and implementation of waste management regulatory initiatives at all levels of government - federal, provincial and municipal. While OWMA membership have diverse business interests in areas such as landfills, transfer stations, material recycling facilities and hazardous waste; the majority of member companies are waste material 'haulers'. OWMA members facilitate the movement of waste both within Ontario and to various US states. Our members handle over 80% of the solid waste in Ontario and 95% of the solid waste moving across the US border.

OWMA has a very significant interest in any initiative to regulate the transboundary movement of solid waste between Canada and the Untied States.

The OWMA has had the opportunity to review the background documentation related to the current study commissioned by Environment Canada and has received formal presentations from SNC Lavalin, McCarthy Tetrault and Environment Canada representatives. A select group of OWMA member company representatives as well as the OWMA Executive Director attended the stakeholders discussions convened in Toronto on February 18^th, 2000.

The following issues and/or queries were the subject of discussion at the stakeholders meeting and are of concern to OWMA.

ISSUES:

The Context of International Obligations:

The rationale for the current exercise to consider regulatory options for the export and import of solid waste between Canada and the US is claimed to be embodied in the Basel Convention of which Canada is a signatory and the US is not. While the Basel Convention is primarily directed at hazardous waste movements, it does include reference to 'other wastes' - presumably non-hazardous solid waste. Similarly the US - Canada Agreement on the Transboundary Movement of Hazardous Waste has been amended to include non-hazardous waste destined for final disposal. The Canadian Environmental Protection Act (CEPA), 1988 has allowed Canada to move towards a regulatory framework.

While the OWMA recognizes Canada's role in the world community and the need to meet international obligations, it is also important to recognize the evolution of regulatory frameworks from hazardous waste into the realm of 'other wastes'. It is important to recognize that the impetus for the international actions were based on the serious environmental and health risks associated with the uncontrolled disposal by developed countries of large volumes of hazardous waste in developing countries. These recipient countries had little or no environmental controls or safeguards and were disadvantaged by the economic pressure to receive such wastes. In these circumstances it was more than reasonable that the international community took action. The international philosophy, Conventions and Agreements are now being applied to a totally different situation. The transboundary movement of solid waste in North America is between two sophisticated and highly environmentally regulated and safeguarded nations. The regulatory framework for waste management in each nation is at least equivalent and in some cases superior in the US, meaning that waste movements are not occurring to circumvent environmental controls. As such the need to regulate exports and imports between Canada and the US in any manner should be considered. We respectfully suggest that the need for such regulation does not exist despite Canada's perceived need to meet international obligations. We suggest that Environment Canada thoroughly investigate the existing waste management regulatory framework at both the provincial and state levels before concluding what, if any shortcomings really exist in terms of meeting the intent and commitments associated with the Basel Agreement and CEPA.

If a regulatory approach is adopted it must be minimal in terms of additional government red tape and the 'layering' of government jurisdiction and control. Any changes should be implemented in a manner that they enhance rather than simply add to or duplicate existing requirements. Regulations must not restrict trade and commerce nor be an economic burden to the industry and economy.

Fundamentally, it is our belief that the current regulatory systems that exist on both sides of the US-Canada border provide adequate environmental protection and minimal risk to human health, and with some very minor enhancements will meet the intent of the Basel Agreement and CEPA.

Definitions:

The term 'waste' also requires clear definition to distinguish between waste for disposal and materials for recycling or reuse. The economics of recycling must be incorporated into the definition to reflect the fact that a 'waste' today is a recyclable material tomorrow because of changes in market conditions.

Both the Basel Convention and the Canada - US Agreement refer to 'other waste' but the definition appears to be different in each document. The respective definitions of 'household waste' and 'municipal waste' are ambiguous and require clarification in terms of any proposed regulation. It is extremely difficult to classify waste according to 'origin'. The definition of 'other waste' as 'household waste' in the Basel Convention appears to be expanding under CEPA with no apparent rationale. These definitions will create difficulties for Ontario facilities that process and dispose of 'mixed' household and ICI wastes and accentuate waste definition anomalies between Ontario and US states.

A clear definition of 'final disposal' is also required to assist in clarifying waste versus recyclable materials. It has been suggested that the regulation must address situations in which material exported under the guise of being recycled is intended for disposal. While this is recognized as an issue in the most blatant circumstances, any attempt to find a regulatory solution must not interfere with the legitimate export and import of waste and recyclable materials. The definition issues mentioned previously accentuate the difficulty of a regulatory approach.

Prior Consent Principle:

The need for a regulatory system requiring the receiving jurisdiction to provide prior informed consent for waste export and the perceived inadequacy of the current provincial and state regulatory systems with respect to this issue is understood to be a key concern.

It is important to recognize that in the early 1990's, RCRA Subtitle D was promulgated in the United States, bringing into effect perhaps the most stringent municipal solid waste landfill design and operating standards anywhere in the world. States including Ohio, Michigan and New York responded by developing their own regulatory programs that had to meet these minimum Federal standards. Many states went and remain beyond the Federal regulatory requirements.

The landfill permitting system in the US is at least as stringent as that in Ontario, and each landfill permit has restrictions placed upon it based on the outcome of extensive pre-approval investigations that include environmental review and public consultation. If a US disposal facility is permitted under a state or federal regulatory program to accept waste from another state or Canada, then in our view this constitutes prior approval. Therefore we suggest that Environment Canada assemble a roster of all disposal facilities permitted to accept solid non-hazardous waste from Canada, indicating tonnage or other relevant restrictions if applicable. Environment Canada should then provide a blanket prior consent for waste disposal at any of the facilities listed. This roster should be updated and communicated as changes occur or annually at a minimum.

Information specifying exact ports of entry should not be required because of the flexibility in disposal site utilization required for the reasons indicated previously.

OWMA does not support any requirements for the advance prediction and notification of potential annual tonnage. The attempt to control waste exports on the basis of volume not environmental criteria, is an unreasonable restriction of trade. Advanced predictions of tonnage will be unreliable and misleading. Many companies anticipating securing the same disposal contract will include the same volumes in their individual estimates thereby creating a vastly overstated export potential. Such a requirement could also allow a company to vastly overestimate waste exports with the intent of 'tying up' approved export tonnage. It is conceivable that the receiving jurisdiction may be tempted to refuse additional 'real' imports on the basis of large tonnage estimate increases early in a year.

Tonnage is controlled at the receiving disposal site by permit restrictions both by volume, type of waste and by origin (service area).

It would be more meaningful to require actual export tonnage to be reported at the end of each approval period. This would result in accurate real tonnage statistics and would eliminate any potential for abuse that is inherent in an advance prediction requirement.

The concept of 'flow control' has been judicially rejected in most US jurisdictions as anti-trade.

Waste Reduction Plans:

The requirement for waste reduction plans is not supported by OWMA as an effective program is already in place under provincial jurisdiction. Additional layering of reduction requirements at the federal level will be counter-productive. The requirement of waste reduction plans is discretionary for the Minister and Environment Canada should invoke the concept of equivalency in respect to the Ontario waste reduction program. Difficulties exist in respect to the definition of 'exporter'. Any successful program would need to be focussed on generators not exporters.

SPECIFIC COMMENTS / ISSUES / QUESTIONS:

The following issues / comments were raised by waste industry representatives and discussed at the stakeholder meeting.

• The Canada - US border must remain 'open' to the transboundary movement of solid waste.
• Any requirement for individual 'load' tracking and individual shipment manifests is unwarranted given the non-hazardous nature of solid waste and the associated low environmental and human health risks. There must be clear recognition of the differences between hazardous waste and non-hazardous solid waste.
• Economic penalties (i.e. fees, levies, surcharges etc.) to discourage solid waste exports is an unwarranted interference in trade and commerce and not appropriately contained in an environmental regulation.
• Any form of regulation of transboundary solid waste movement will have impacts on the industry, municipalities (taxpayers) and the economy. These impacts should be clearly assessed and publicly documented with any proposed regulation.
• Environmental regulations in the US and facility permitting requirements and restrictions are comprehensive and equivalent to Canadian jurisdictions and in particular, Ontario.
• The question was asked as to what the 'benefits' to Ontario or US businesses, taxpayers and the environment would result from this regulatory initiative. None are obvious, but this question is important and needs to be answered.
• The issue of how or if this regulation will affect private ICI waste was raised and identified as very important to the private sector.
• Construction and demolition waste should be exempted from any regulation because of the benign nature of the material.
• Large industrial waste generators with plants on both sides of the border may ship waste materials for disposal, processing or treatment at captive facilities. Will this regulatory initiative apply to them also?
• Concern was expressed that the Minister may add conditions to export permits with no clear guidelines for the Minister as to what is an acceptable area of interest requiring additional restrictions or conditions. There is no need for 'Export Permits'.
• The question was asked as to whether export consent can be withheld if a waste was not processed for recyclables first.
• The regulatory environment in the US is superior to most other countries thereby minimizing the need for the stringent requirements of international agreements. Is it possible to exempt certain countries like the US, while including others?
• There is no apparent benefit in tracking individual waste shipments. What is to be gained versus the cost to all parties?
• It was confirmed that US waste disposal sites could acquire Canadian export permits under a potential regulation.

A fundamental problem with Environment Canada's position and initiative is that it does not understand the landfill permitting and waste management regulatory processes in the US, and therefore does not know if or where the 'gaps' truly exist in order to meet the Basel Agreement and CEPA commitments. SNC Lavalin should undertake a 'gap analysis' between the US and provincial regulatory systems using the specific requirements of the Basel Agreement and CEPA as the guideline. Then they will understand what if any disparities need to be addressed and the most efficient existing regulatory instruments to utilize so that 'red tape' and regulatory 'layering' is avoided.

Ontario Waste Management Association

March 13, 2000

E-Mail Received From: Helen Spiegelman, Society Promoting Environmental Conservation 
Received on: March 11, 2000

Dear fellow stakeholders in the waste export consultation. I found yesterday's meeting (in Vancouver) very interesting. Here's what I observed in our multi-stakeholder encounter:

• government has a need to protect the public interest;
• businesses have a need to create economic opportunities;
• NGOs have a need to keep both of you honest!

Or to put it another way:

• the government are the referees;
• the businesses are the players;
• the NGOs are the true fans.

As an avid fan, I want the regulators to do their job so the players don't take unfair advantage of each other or tear up the playing field so no one can play (ecological collapse is bad for business). But I don't want the referees to interfere so much that it affects the play and the game's no fun.

Regulators feel that the safest way to ensure good behaviour is to cover every detail with a procedure. Businesses feel exasperated that unnecessary bureaucratic procedures waste time/money. What we can't seem to find is BALANCE:

•  balance between (economic) efficiency and (environmental) effectiveness,
• balance between (public) transparency and (business) privacy

It was interesting to watch the stand-off several times yesterday. Regulators saying 'what kind of rules do you want?' and haulers saying 'less rules'.

It was depressing to think that after two years of meetings in fancy boardrooms (at public expense), we could end up with another set of rules that will be seen by the industry as a challenge to get around -- or, failing that, as an unnecessary expense that will drive up costs unproductively.

Here's a thought I tried to put on the table yesterday, but I don't know if the facilitators noted it on their flipchart. Unlike bureaucracies, businesses operate in the international marketplace. This positions them well to design streamlined measures to ensure the necessary flow of information to make regulations that are efficient as well as effective.

Why can't the haulers design a cost-efficient regulatory scheme that they thought was economically efficient and show it to the regulators - and challenge them to find reasons it wouldn't meet the need for environmental effectiveness. Turn the process on its head.

This approach brings to mind another kind of BALANCE: balance between trust and vigilance.

APPENDIX E

PAST OPTIONS IDENTIFIED FOR CONTROLS ON TRANSBOUNDARY MOVEMENTS

As previously noted in Section 4.3, a report entitled " Study of the Transboundary Movement of Waste Into/Out of Canada" , May 1995 examined the nature and impacts of the transboundary movement of wastes between Canada and other countries. One of the elements of this report, as briefly summarized in Section 4.3, was a description of four policy options for managing such movements. These past options are more fully described herein, based on information from the 1995 study. Potentially associated impacts (advantages/disadvantages) are also documented.

As recognized elsewhere in the Discussion Paper, the federal government is obligated pursuant to the Basel Convention and the amended Canada-U.S. Agreement to put in place control mechanisms over the transboundary movements of non-hazardous waste (NHW). This situation notwithstanding, one of the previously identified alternatives, the 'do-nothing' or 'no controls' option, has been included herein for completeness, even though it does not meet our international obligations.

E.1 Option 1: No Controls on Waste Imports/Exports

As described in the 1995 study, this option implies that the federal government would take no further action toward the implementation of policies or regulations affecting NHW transboundary movements. In effect, the waste flows would be kept as open as possible, with no effort made to monitor or impose conditions on waste haulers or disposal sites. The flow of NHW would, as a result, remain relatively unrestricted.

The advantages and disadvantages of this option were previously identified as follows:

Advantages:

• consistent with a free market approach to NHW management, and posing no apparent contradictions with NAFTA or GATT;
• the continued ability to export NHW would extend the life of existing Canadian landfills and postpone the need for new sites;
• efficient disposal systems and networks would evolve without duplicate expensive facilities in both countries;
• free market efficiency and competition would be promoted with greater opportunities to achieve economies of scale, job creation and, ultimately, lower prices for consumers and taxpayers. Communities hosting resulting large regional disposal facilities may also benefit economically from disposal fees, development incentives, and spin-off businesses; and
• a benefit to large, transnational waste management firms with integrated recycling/disposal operations and the capacity to consolidate large loads and ship long distances. Such companies are well positioned to operate recovery/recycling systems for materials which can be marketed on a continental basis.

Disadvantages:

• does not comply with Canada's international obligations;
• no effort forthcoming to support the provinces in efforts to control imports or exports;
• those advocating stronger environmental controls and/or the principle that communities should maintain responsibility for their wastes would be expected to oppose the apparent change of direction by the federal government;
• transboundary movements possibly interrupted by future restrictions and flow control regulations by provincial and foreign governments;
• concerns about potential flow of solid wastes to sites and countries with inadequate environmental standards would remain;
• low cost export disposal undermines the economics of 3Rs alternatives. May contribute to a loss of employment in the 3Rs, reductions in investments in 3Rs infrastructure, and resistance on the part of IC&I waste generators to 3Rs programs. Landfills in Ontario noted as losing an estimated $65 million (1992) in tipping fees each year due to exports damaging municipal 3Rs efforts where tipping fee revenues were used to fund waste reduction;
• waste management or the 3Rs industries would continue to face regulatory uncertainty and unpredictability regarding key business variables such as feedstock availability;
• local jurisdictions' ability impaired to plan and manage their waste management systems (difficult to implement long-term reduction plans given the risk that investments may be undermined by international economic forces); and
• regulation of hazardous wastes more difficult, to the extent it remains possible for hazardous shipments to move illegally within the relatively unknown NHW flows.

E.2 Option 2: Increased Regulatory Management Mechanisms

As envisaged under this option, the federal government would take no action to restrict or interrupt NHW transboundary movements, but would impose controls and conditions designed primarily to monitor waste flows and encourage disposal only in environmentally safe facilities. A number of regulatory tools are possible in this regard. In general, haulers would be required to report all exports/imports, seek prior informed consent of the importing jurisdiction, maintain acceptable levels of environmental liability insurance, assume responsibility for shipments that are rejected or diverted, and see that shipments are disposed of in environmentally safe facilities. Permits of equivalent level of safety are also contemplated by Bill C-32.

The advantages and disadvantages of this option were considered to include:

Advantages:

• consistent with Basel Convention and 1992 amendment to Canada-U.S. Agreement;
• if administered and enforced effectively, would be expected to reduce illegal movements of NHW and ensure that most shipments are directed toward environmentally safe facilities;
• identification of hazardous wastes hidden within the NHW network may be facilitated; and
• an overall reduction in exports may result, but trade would not be fundamentally altered.

Disadvantages:

• enforcement may be difficult given the number of waste haulers, disposal sites and jurisdictions. Administration and enforcement may become expensive and cost recovery through permitting fees, etc. may have to be considered (see Option 3, below);
• increased hauling costs through additional paperwork and administration, and possibly through the introduction of permitting fees. The cost and complexity of a control system may restrict or curtail the activities of some haulers;
• would not fully address concerns about the competitiveness of 3Rs industries;
• recycling industries relying on international trade could incur additional costs if recyclable materials were unintentionally captured within the control system; and
• a precise definition that is both easily understood and enforceable as to what constitutes waste v.s. recyclables would be required to not affect the 3Rs industry inadvertently.

E.3 Option 3: Economic Measures

Economic instruments envisaged under this scenario include taxes, fees, levies or surcharges which could be used to increase the cost of importing or exporting NHW. Several different formats are possible (e.g., a special levy could be applied on a per tonne basis to shipments of NHW leaving Canada). In any respect, they would increase the overall cost of exporting NHW, and could have a significant impact on transboundary movements.

The advantages and disadvantages of this option were previously considered to include:

Advantages:

• charges, if sufficient enough, would function as an economic incentive for the establishment of waste diversion and disposal facilities on either side of the border;
• offers the potential to raise revenues for regulatory agencies and increase government revenues, both from export charges as well as from increased municipal tipping fee receipts;
• 3Rs industries would become more competitive;
• charges on NHW imports to Canada may discourage future imports (little being imported at present); and
• cost recovery measures such as permitting or registration fees (subject to the actual fees imposed) likely to have only a minimal impact on overall transboundary flows.

Disadvantages:

• charges could rapidly decrease waste exports with a corresponding increase for domestic disposal capacity;
• will likely lead to increased import/export costs;
• export charges could affect shipments of recyclables if they are not clearly distinguished and recyclers could face cost increases; and
• import/export charges may be viewed as a trade measure and challenged on the grounds they are in contravention of NAFTA or GATT. American retaliation may affect recyclable materials used by Canadian industry.

E.4 Option 4: Import/Export Bans and Restrictions

Import/export bans or restrictions would prohibit shipments of NHW to or from a particular jurisdiction. They could apply generally to all imports or exports, or more narrowly to certain types of NHW, under certain conditions, and/or from designated sources. They represent the strongest and most direct option available and, to date, have not been enacted in either Canada or the United States. With respect to imports, such restrictive measures already exist in some areas (e.g., Ontario through its Certificate of Approval process). Attempts to ban NHW imports will likely continue to arise from state and provincial governments.

The previously identified advantages and disadvantages of this option include:

Advantages:

• forces jurisdictions to assume full responsibility for their own wastes and either expand disposal capacity or develop 3Rs alternatives (consistent with spirit of Basel Convention to this extent);
• opportunity for waste to flow to environmentally unsafe sites outside of the jurisdiction would be eliminated, as would the environmental costs/risks of long distance waste transport; and
• competitiveness of, and demand for 3Rs alternatives would increase, as would revenues from tipping fees at Canadian landfills.

Disadvantages:

• an immediate increase in disposal costs would result in pressure to expand domestic landfill capacity;
• resulting inefficiencies, due to forced tipping fee increases and duplication of facilities would have negative economic implications;
• bans may be viewed as inconsistent public policy as compared with managed flows of hazardous waste (which is considerably more dangerous). May result in confusion and concern over apparent policy contradictions;
• if the definition of waste v.s. recyclables is imprecise, the trade in recyclable materials may be interrupted, with potential economic consequences; and
• attempts to restrict imports and exports may be challenged on the basis of restricting free trade and contravening NAFTA and GATT.

Figure 8.1

INTENSIVE REGULATORY COVERAGE / APPLICATION

Figure 8.2

NOMINAL REGULATORY COVERAGE / APPLICATION

Figure 8.3

INTERMEDIATE REGULATORY COVERAGE / APPLICATION