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Proposed CEPA Export and Import of Hazardous Wastes and
Hazardous Recyclable Materials Regulations
- Discussion Paper -
Transboundary Movement Branch
Environment Canada
January 18, 2002
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INTRODUCTION
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Background
Environment Canada intends to revise the Export and Import of Hazardous Wastes Regulations (EIHWR). This paper is intended to support the second round of major public consultations concerning these reforms.
Environment Canada adopted the Export and Import of Hazardous Wastes Regulations (EIHWR) in 1992 under the authority of the former Canadian Environmental Protection Act, 1988 (CEPA, 1988). The EIHWR are now under the authority of the new Canadian Environmental Protection Act, 1999 (CEPA, 1999). The EIHWR are intended to protect Canada's environment from the risks posed by unregulated traffic in hazardous wastes and hazardous recyclable materials to implement Canada's international obligations to protect the environment of other countries from uncontrolled exports of these wastes and recyclable materials from Canada.
Since 1992, the volume of hazardous wastes and hazardous recyclable materials crossing Canada's border has increased, particularly in 1998 and 1999 where there had been increases in imports of hazardous waste destined for final disposal. As well, during the last decade, various changes to the domestic and international legal regimes have occurred, and the parties involved in managing transboundary movements of hazardous wastes and hazardous recyclable materials have identified opportunities to enhance the efficiency and effectiveness of the design and implementation of the EIHWR. Through the Canadian Council of Ministers of the Environment Hazardous Waste Task Group (CCME HWTG), Environment Canada, the provinces and relevant industries have identified numerous opportunities to harmonize the relevant federal-provincial regimes, particularly in defining hazardous waste and hazardous recyclable material.
The international regimes regulating the import and export of hazardous wastes and hazardous recyclable material have also evolved. These international obligations stem from three different agreements:
- the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989;
- the OECD Decision of Council concerning the control of transfrontier movements of wastes destined for recovery operations, C(92)39/Final, March 1992, as amended; and
- the Canada-United States Agreement Concerning the Transboundary Movement of Hazardous Wastes, 1986 (as amended in 1992).
Similarly, CEPA, 1999, in force since April 2000, includes various important new provisions with respect to hazardous waste and hazardous recyclable materials. One of the most important of these changes is the clear authority for a distinct control regime for exports and imports of hazardous recyclable materials. In addition, the new Act authorizes of the Minister of Environment to:
- prohibit exports, imports or transits in order to implement international agreements;
- develop criteria to ensure the environmentally sound management of wastes or recyclable materials, and to refuse permits for import or export if these criteria are not met;
- issue permits for activities that are different from the requirements set out in the regulations but that are of an "equivalent level of environmental safety"; and
- require the preparation of plans to reduce wastes destined for final disposal.
As a result of these various developments, Environment Canada is developing new regulations to replace the EIHWR. Given the decoupling of the definitions of waste and recyclable materials under CEPA, 1999, these new regulations will become the Export and Import of Hazardous Wastes and Hazardous Recyclable Materials Regulations (EIHWHRM Regulations).
The EIHWHRM Regulations will retain the primary objective of ensuring that the environment and human health of Canadians and others is protected when transboundary movements of hazardous wastes and hazardous recyclable materials take place. As with the current EIHWR, the new regulations will establish controls on such movements that are consistent with Canada's international obligations. The new regulations will also contain substantial revisions from the current EIHWR in order to:
- address each of the new CEPA, 1999 authorities;
- facilitate recycling by providing a distinct control regime for recyclable materials;
- enhance the efficiency with which the control regime can be administered and complied;
- improve federal-provincial and US-Canadian harmonization; and
- strengthen the linkages between the import/export provisions under CEPA and the other elements of CEPA, 1999, including in particular the toxic substances provisions.
In addition to revising the substantive content of the regulations, Environment Canada also intends to improve the clarity of the regulations as a whole. It will strive to enhance the readability of the regulations. Among other things, this may involve in "clear language" drafting and the use of statements of purpose for each of the main parts of the regulations.
The Amendment and Consultation Process
This discussion paper is being released as part of a public consultation process concerning the development of the new EIHWHRM Regulations. It follows a round of initial consultations held in February and March of 2001 to inform stakeholders of the scope of the amendment process and to solicit initial input.
Following this second major round of consultations, Environment Canada will prepare draft regulations to amend the current EIHWR. It will also undertake a study on the potential socio-economic impacts of the new regulations. Stakeholders will have another opportunity to provide comments following the release of the report of this second round of consultation which will be taken into account in the drafting process.
Following these consultations, the Government will follow the formal regulatory process prescribed by the Statutory Instruments Act (R.S., 1985, C. S-22):
- The Minister of Environment will publish a copy of the proposed regulations in Part I of the Canada Gazette. It is expected that this will occur in December 2002.
- Within 60 days after the publication of a proposed regulations, any person may file with the Minister written comments on the proposed regulation.
- Once the proposed regulation has been finalized, taking into account the comments received during the 60-day public consultation period, the Government will publish the final official regulations in Part II of the Canada Gazette.
The remainder of this paper follows the possible structure of the main parts of the new regulation. The language used describes the proposed content of the section; it does not represent legal text.
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1. DEFINITIONS
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1.1 Overview
This part defines key terms used in these regulations to ensure clarity and consistency in their interpretation. Note that the final regulations may alter these definitions or may define more terms than are presented below as necessary to facilitate understanding and functioning of the regulations. This part defines only terms whose definition may require consultation.
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1.2 Proposed Elements
In these Regulations,
“agent” or “broker” means
any person who proposes to export or import or who exports or imports a hazardous waste or hazardous recyclable material, but is not the generator, disposer, or recycler.
“authorized carrier” means
(a) in the case of a carrier that is required under applicable laws to be the holder of a license, permit, certificate or other written authorization to carry the type of hazardous waste or hazardous recyclable material that is being exported or imported, a carrier in respect of which a license, permit, certificate or other written authorization has been issued by the competent governmental and international authorities to transport that type of hazardous waste or hazardous recyclable material, and
(b) in any other case, a carrier that is authorized under applicable laws to carry the type of hazardous waste or hazardous recyclable material that is being exported, imported or transited.
“authorized facility” means
a facility in respect of which a license, permit, certificate or other written authorization has been issued as required by the competent governmental authority to dispose of or to recycle, as the case may be, in the manner set out in the notice, the type of hazardous waste or hazardous recyclable material that is being exported or imported.
“bulker” [or “processor”] means
a person who collects or receives wastes or recyclable materials and then processes them at that person's facility in a manner that changes their physical and chemical characteristics.
“country of export” means
a country, other than a country of transit, from which a hazardous waste or hazardous recyclable material is being or is proposed to be exported for disposal or recycling.
“country of import” means
a country, including any land, marine area or airspace within which the country exercises administrative and regulatory responsibility respecting the protection of the environment or human health, into which a hazardous waste or hazardous recyclable material is being or is proposed to be imported for disposal or recycling in that country or for loading prior to disposal or recycling in an area outside the jurisdiction of any country.
“country of transit” means
a country, excluding any airspace and marine area outside the limits of its territorial sea, into which a hazardous waste or hazardous recyclable material is being or is proposed to be imported and from which the hazardous waste or recyclable material is being or is proposed to be subsequently exported without being disposed of or recycled.
“disposal” means
any of the operations described in Schedule 1, and includes temporary storage at the site of disposal pending any such operations.
“disposer” means
any person to whom a hazardous waste is shipped and who carries out the disposal of that waste.
“exporter” means
any person who proposes to export or who exports a hazardous waste or a hazardous recyclable material from Canada.
“generator” means
any person who generates a hazardous waste or hazardous recyclable material and includes any person who generates a hazardous waste or hazardous recyclable material through bulking.
“importer” means
any person who proposes to import or who imports a hazardous waste or a hazardous recyclable material into Canada.
“notice” means
the notice of a proposed export or import of a hazardous waste or hazardous recyclable material for the purpose of notifying the Minister under subsection 185(1) of the Act.
“recyclable material” means
any material that is being recycled, is destined for recycling or is required to be recycled.
“recycler” means
a person to whom a hazardous recyclable material is shipped and who carries out the recycling of that recyclable material.
“recycling” means
any operation set out in Schedule 2, and includes temporary storage at the site of recycling pending any such operations.
“waste” means
any material that is disposed, is destined for disposal, or is required to be disposed.
1.3 Rationale and Discussion
Many of these definitions are identical to the definitions in the existing EIHWR with the addition of appropriate references to hazardous recyclable material.
The definitions of the following terms are modified:
- “disposal” - modifies the concept of storage with the terms “temporary” and “at the site of disposal”.
- “recycling” - adds the concept of temporary storage using same language as for “disposal”.
It is also proposed to add definitions for “agent”, “broker”, “bulking”, “generator” and “recyclable material”. These terms are not defined in the existing EIHWR:
- The terms “agent”, “broker”, “bulking” and “generator” are required to clarify in Part 5 who must/may submit a notice and apply for a permit.
- Decoupling the terms “recyclable material” and “waste” enable the regulation to provide different requirements for wastes and recyclable. Their definitions are based on similar definitions in the proposed Interprovincial Movement of Hazardous Wastes and Hazardous Recyclable Materials Regulations (Interprovincial Regulations).
The final significant change from the current EIHWR, is that this part does not define "hazardous". The tests for determining whether a substance is "hazardous" are set out in Part 2, below.
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2. SCOPE OF COVERAGE
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2.1 Overview
The determination of whether a material is covered by these regulations will depend on whether the material is both: 1) a waste or a recyclable material and 2) meet a hazardous characteristic.
2.1.1 Is the material a waste or a recyclable material?
The determination of whether a material is a waste or a recyclable material will be guided in part by the definition of those two terms as outlined in Part 1, above. As is the case with the current EIHWR, the proposal is to define "waste" as any material that is disposed, destined for disposal or required to be disposed. In turn, "disposal" is defined as any operation listed on Schedule 1, the updated list of disposal operations (the D List). Similarly, the proposal is to define recycling as any operation set out in Schedule 2, the updated list of recycling operations (the R List).
The use of the Disposal and Recycle Lists will provide two main benefits. First, the new regulation will have a separate control regime for hazardous recyclable material being imported into or exported from an OECD country. The use of the D and R lists will clarify that the recyclable material control regime will only apply to recyclable material that is actually recycled. It will not apply to material that has the chemical or physical potential to be recycled, but that is sent to disposal. Further guidance on the nature of the operating considered by each entry in the R&D; list will be prepared. Some of this guidance may be the results of technical guidelines on various operations and waste streams developed as part of the program on Environmentally Sound Management (ESM).
The second main benefit of the use of the D and R Lists is that they should help alleviate some of the difficult experiences under the EIHWR in differentiating recyclable materials from products. The OECD has provided guidance material to support this determination on a case-by-case basis. Environment Canada has also relied on similar but more expansive guidance material. Schedule 5 provides the list of criteria to distinguish products from recyclable materials. Further guidance, based on these criteria is being developed.
Particularly where modified controls are established to promote environmentally sound recycling, the issue of the proportion of a material that should be recycled for activity to be considered recycling rather than disposals is an important one. Given the variety of materials and technology, it would be necessary to established different levels of the amount that should be recycled for each type of material. This would need to account for three related factors: the amount of the hazardous residue generated relative to the amount of the shipment; the value of the material created; and the environmental risks associated with the residue relative to the environmental risks that would be associated with creating the new material from virgin inputs. The EIHWHRM Regulations will rely on available technical guidelines as guidance on the definitions of Recycling and Disposals operations to identify any particular levels of recycling required to be considered a legitimate recycling !
activity.
2.1.1 Is the material hazardous?
The remainder of this part of the discussion paper describes the three related elements for determining if a waste or recyclable material is "hazardous":
- a list of wastes and recyclable materials, already determined to be hazardous
- a hazardous characteristic test, and
- a process to exclude listed wastes or recyclable materials under certain limited conditions.
2.2 Proposed Elements
To determine whether a waste or recyclable material is hazardous, the generator (or importer or exporter, as the case may be) shall determine, as per the process being established for the Interprovincial Regulations*:
*Environment Canada is releasing a separate paper on these regulations outlining these lists and characteristics in further detail.
1. Is the waste or recyclable material listed in Schedule 3, the list of hazardous materials?
If so,
it is defined as hazardous and is covered, subject to utilization of the conditional exclusion process. This includes specifically listed substances and compounds like those in Schedule 2 of the Clear Language Version of the Transportation of Dangerous Goods Regulations (TDGR) (e.g. acetone, battery acid or gasoline) as well as listed types of hazardous wastes and hazardous recyclable materials (e.g. 100 waste types from old TDGR, biomedical waste, used oil, spent glycols, waste genetically modified organisms and other specific listings required to ensure harmonization with the Basel Convention or the OECD Decision on Recyclable materials such as polychlorinated naphthalenes).
Or,
2. If the waste or recyclable is not listed, does it demonstrate one of the hazardous characteristics listed in Schedule 4 (i.e., TDGR classes 2,3,4,5,6,8, or 9)?
If so,
it is defined as hazardous and is covered by the regulations. The hazard criteria for primary hazard classes 2 (gases), 3 (flammable liquids), 4 (flammable/reactive solids), 5 (oxidizers), 6 (toxic and infectious substances) and 8 (corrosive materials) will be harmonized with the requirements of TDGR. Class 9 environmental hazardous will be defined in one of two ways: through use of the leachate test (US Toxicity Characteristic Leachate Procedure - TCLP) on an expanded list of hazard constituents or listing with a 100 part per million cutoff (a shortened version of the current class 9.2 list).
If neither of these conditions are met, the waste or recyclable is not covered by these regulations.
3. Conditional exclusion process.
If a waste or recyclable is included in the list of hazardous materials in Schedule 3, but the importer/exporter believes that it does not exhibit any hazardous characteristic, the importer/exporter may apply for a conditional exclusion using the form in Schedule 6. If Environment Canada approves the application, the waste or recyclable will not be subject to these regulations as long as all conditions in the approval continue to be met.
With respect to the conditional exclusion process, it is proposed that the regulation will specify:
- The process for applying for such a conditional exclusion and set out the appropriate form. This will probably include the following:
- application to be made by generator or person acting on their behalf;
- 90 day timeline for response, but not to be interpreted as approval if not met;
- fee for this process (may be established at a later date, in concert with future cost recovery plans).
- The information to accompany an application, including:
- a statement of the grounds for seeking the exclusion (describing the waste or material and which anticipated hazardous characteristic(s) is (are) not present); and
- supporting technical analysis from an independent certified laboratory.
- The public right to review and comment on any application.
- Environment Canada's authority to approve an application for a conditional exclusion.
- The types of conditions that may/must be imposed, including:
- maximum time for which approval is valid (up to a maximum of 3 years);
- ongoing obligations to monitor to ensure the grounds for exclusion continue to apply;
- reporting requirements for ongoing test results or other imposed conditions.
- Authority for EC to withdraw the approval if, in its opinion, the conditions are no longer met.
2.3 Rationale and Discussion
The proposed process for determining whether a waste or recyclable is hazardous follows a logical flow that improves both the clarity of the determination and the enforceability of the new regulation. The overall approach is consistent with the Basel Convention and OECD Decisions. It is also consistent with the approach recommended by the HWTG and proposed for the Interprovincial Regulations.
The use of lists to establish a presumption of inclusion establishes a clear baseline from which industry and Environment Canada can work in applying the regulations. The use of lists also provides a straightforward basis for other stakeholders to understand the scope of the regime. The lists will comprise wastes and recyclable materials that typically exhibit hazardous characteristics. They will reflect the recommendations of the CCME HWTG, and will cross-reference the Basel and OECD lists.
Due to the inherent complexity and the delisting mechanism that it would necessitate, it is not intended to introduced at this time a "derived from" rule2 , as a means of defining hazardous waste or hazardous recyclable material. However, it may be applied as a means to ensure proper treatment prior to landfilling, through technical guidelines on the landfilling of hazardous waste.
Some have proposed that the mixing rule be added in these regulations (i.e. that one is not allowed to mix waste for the purpose of avoiding controls by diluting the hazard.) However, this type of rule is more effectively established by the jurisdiction controlling the generator. One area being considered however is some prohibition on import for the primary purpose of avoiding a mixture rule in the exporting jurisdiction.
The conditional exclusion process may allow industry to exempt from the coverage of the regulation a waste or recyclable that is usually hazardous but due to production process factors or unusual circumstances is not hazardous in a particular case. Conditional exclusions will not be granted for material or waste that has simply been diluted.
The responsibility placed on the generator/importer/exporter to ensure that a non-listed waste or material does not exhibit any hazardous characteristic provides an additional layer of environmental protection. This responsibility is consistent with the basic environmental management and due diligence requirements for generators and managers of wastes or recyclable to know the qualities of the substances they are working with.
The proposed approach requires the application of all hazardous characteristic tests to all non-listed wastes and recyclable materials. Some stakeholders are of the view that the regulations should not require application of the TCLP test to any recyclable materials or to certain specific lower risk recyclable materials. Environment Canada does not propose to provide such a blanket exemption and views the text as a measure of the availability and mobility of hazardous constituents. Recyclable materials may come into contact with the environment in various circumstances, including through stockpiling or following a transportation accident. Recyclable materials that could contaminate the environment as a result of such contact will be covered by the regulations. Modified controls for the lowest risk recyclable materials may be considered under the Permit of Equivalent Level of Safety mechanism (further discussed in section 8 of this paper).
2 Under such a rule, a material that was once a hazardous waste retains that title even after treatment unless delisted.
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3. EXEMPTIONS
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3.1 Overview
This part will designate certain wastes or recyclable that are not covered by these regulations.
3.2 Proposed Elements
These regulations will not apply to the transboundary movement of (when shipped among OECD countries) to:
(a) Wastes or recyclable materials that are:
- solids in quantities less than 5 kg per consignment; or
- liquids are samples in quantities less than 5 L per consignment.
(b) Recyclable materials that are:
- solids, that are samples, in quantities less than 25 kg per consignment; or
- liquids, that are samples, in quantities less than 25 L per consignment.
The regulation will contain a mechanism to over-ride the exemptions in (a) and (b) for certain substances due to the high risk they pose, even in small quantities. This may be implemented as a "special provision" in the lists of hazardous wastes and recyclable materials, and will be harmonized with the Interprovincial Regulations.
The regulation will also retain the current EIHWR exemptions for the Department of National Defense to allow it to more easily import wastes that it generates during overseas operations, and for explosive materials and radioactive materials.
3.3 Rationale and Discussion
The proposed exemptions reflect an effort to harmonize with the proposed Interprovincial Regulations, while taking advantage of the OECD Decisions to provide increased flexibility for recyclable material:
- The proposed exemption (a) - 5 kg and 5 liter exemption- reflects the proposed Interprovincial Regulations and allows the return of empty containers with still have a residue of hazardous waste or recyclable material.
- The proposed exemption (b) - 25 kg and 25 liter exemption for recyclable - reflects changes to the OECD Council Decision C(92)39.
It is proposed to limit this exemption to shipments among OECD countries as even small quantities can be of concerned in developing countries. The proposed exemptions for explosives and radioactive materials are the same as the exemptions in the existing regulations and in the proposed Interprovincial Regulations. These materials are regulated under other regulations.
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4. PROHIBITIONS
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4.1 Overview
This part will prohibit transboundary movements of certain specified hazardous wastes or hazardous recyclable materials.
4.2 Proposed Elements
The following transboundary movements of hazardous wastes or hazardous recyclable materials are prohibited:
- Any exports to Antarctica (south of 60o south latitude).
- Any exports to a country that has prohibited the import of a specific or of all hazardous wastes and/or hazardous recyclable materials, and has so notified Canada.
- Any exports to or imports from a country that is not party to one of the following:
- the Convention,
- OECD Decision C(92)39 as amended in the case of hazardous recyclable material, or
- a bilateral, multilateral or regional agreement or arrangement with Canada.
- The import or export of wastes or recyclable materials containing substances whose transboundary shipment is banned by another international agreement to which Canada is a party, or by other provisions of Canadian law.
4.3 RATIONALE AND DISCUSSION
Section 186 of CEPA, 1999 includes a specific authority to prohibit, completely or partially, the import, export or transit of hazardous wastes or hazardous recyclable materials in order to implement international environmental agreements binding on Canada. The first three proposed prohibitions fall within this authority as they reflect prohibitions already existing in the Basel Convention. These prohibitions already exist in the current EIHWR.
The final proposal simply ensures that the amended regulations cannot be read as an alternative control mechanism for transboundary movements of materials when such movements are banned through other international obligations or other Canadian laws. In other words, it prevents competing laws accidentally being created, but does not otherwise establish any new prohibitions. Environment Canada is also considering a prohibition on export for final disposal to developing countries or alternately to countries other than those (like the United States) with which it has a bilateral agreement.
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5. TRANSBOUNDARY MOVEMENT CONTROL REGIMES
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5.1 Overview
This part will prescribe the control regime applicable to all transboundary movements of hazardous wastes and hazardous recyclable materials. It is divided into two regimes:
- Part 5.2 applies to transboundary movements of hazardous wastes to all countries and of hazardous recyclable material to non-OECD countries. (Full controls)
- Part 5.3 applies to the transboundary movement of hazardous recyclable materials between Canada and OECD countries, including the United States. (Modified controls)
5.2 Control Regime for hazardous waste to or from all countries and for hazardous recyclable being exported to or imported from non-OECD countries (full controls)
5.2.1 Proposed Elements
This Part will specify the following:
- These provisions apply to:
- all imports or exports of hazardous materials destined for disposal, regardless of whether they could have been or at one time were intended to be recycled (note that this includes all mixed shipments containing at least some hazardous waste); and
- all imports or exports of hazardous recyclable to or from non-OECD countries.
- Requirement to submit Notice to Environment Canada
- The content of the Notice will be prescribed by reference to a schedule to the regulation. It is proposed that the Notice will be based on the OECD form, including updated international waste identification code (IWIC).
- In addition to basic information such as names, addresses, material in question, etc., the Notice form will require information on:
- whether the applicant is subject to a waste reduction plan order under s. 188;
- whether the material is subject to another international agreement restricting its import or export;
- whether the material is a Track 1 CEPA-toxic substance (slated for virtual elimination) or whose import or export is otherwise restricted under CEPA;
- confirmation of insurance (name of insurer and policy number; not a copy of the actual policy) for the Canadian exporter/importer and their carriers with a certification of compliance with the insurance requirement of the regulations3.
- The Minister may request:
- a complete copy of the insurance policy, or
- information related to the ESM criteria described in Part 9, below, including detailed information about the proposed treatment. Environment Canada will develop a policy concerning when and how it will request this information.
- There will be no restriction as to the number of wastes/recyclable materials per Notice, but there can only be one exporter and one receiving facility for each notice and permit.
- Certain information provided with a Notice may appear on the CEPA Registry.
- Applicants will be authorized to amend their Notice as to the quantities to be shipped (provided that the company has not already shipped over their permit limit in contravention of the regulations) and border crossings (but not for wastes/recyclable material, sources and destinations).
3 As with the current administrative procedure, companies will be allowed to maintain up to date insurance files with Environment Canada rather than submit with notice.
- Who must submit a Notice and receive a permit for imports to Canada or exports from Canada:
- The exporter must be a person:
- Whose activity generated the waste/recyclable material (generator);
- Who is acting on behalf of government;
- Who is removing a waste/recyclable material from a site they own or operate.
- Who collects or receives wastes and then processes it at that person's facility in a way that changes its physical or chemical characteristics (new generator or bulker/processor);
- Person submitting notice for imports must own/operate the treatment facility.
- Person submitting notice for export or import must be resident in Canada and have a place of business in Canada.
- Person submitting notice for export must demonstrate the capacity to implement the obligations arising under these regulations in the event of non-completion of the shipment as planned (i.e., an assurance that notification of a problem will be made, and exporters either must have a facility that can receive the returned material or have a contractual arrangement with such a facility).
- Foreign exporters to Canada must be under jurisdiction of the country of export. (i.e. the exporter must be in the country of export not some third country).
- Conditions for using a single notice for multiple shipments (Same as in the current EIHWR):
- Have essentially the same physical and chemical characteristics (for the waste streams listed)
- Are to be shipped to the same disposer or recycler at the same location for disposal or recycling at the same facility;
- Are to be shipped only through the customs offices specified in the notice; and
- In the case of imports into Canada, originate from the same person.
- Conditions associated with the review of the notice:
- Environment Canada must have received the approval of competent authority of the relevant jurisdictions (as per s. 185 of CEPA)
- There must be a legally binding contract (or arrangement if importer and exporter are in same company) between the importer and exporter (as well as between the importer and final destination where the importer is an intermediary facility) stating:
- type and quantity of materials to be sent and received;
- type of treatment to be undertaken of the waste or recyclable materials;
- timelines for the shipment and treatment;
- provisions to provide all required assistance and notices required by these regulations upon failure to complete shipment or treatment as planned.
- The shipment must be fully covered by insurance, as required by part 7, below.
- Each disposal and recycling facility must be an "authorized facility" . (This will be verified by the authorities in the jurisdiction where the facility is located.)
- Permit valid for up to one year.
- Volume/quantity may not exceed amount in permit.
- New renewal mechanism:
- May apply for renewal of permit by submitting form certifying that there are no material changes in the activities and operations for which the Notice is being made.
- Form for renewal application may be specified in a schedule.
- Modify notice numbering for renewals to avoid confusion of new notice number each year.
- Movement may not commence until receipt of permit (as per s. 185)
- Requirement to complete and submit manifest:
- Form of manifest may be prescribed in a schedule (may be an electronically generated form printed from a local computer).
- Manifest shall include:
- reference number of Notice; and
- address of transfer sites and final site.
- Person who exports must submit copy of manifest to EC before shipment occurs (by mail, electronically or fax).
- Receiving site (recycler or disposer) must submit manifest to EC within 3 days of completion of shipment.
- The person who exports, carrier and receiver must retain copy of manifest for 2 years.
- Requirement to use "authorized carrier"
- Permit holder must ensure all carriers used for the transport of the waste/recyclable material are "authorized carriers"
- Direct prohibition on any carrier that is not authorized or listed in the notice and permit from carrying any wastes or recyclable materials subject to these regulations
- The carrier must carry a copy of the manifest and the permit4
- (Note: would also have to comply with any applicable TDGR requirements).
4 Environment Canada is currently examining electronic means of tracking movements, possibly through smart cards.
- Truck driver at the border must:
- provide to Customs a copy of the manifest;
- Equivalent requirements for rail and ships, as an alternative mechanism:
- a copy of the manifest may be placed in or attached to the means of containment;
- electronic means of tracking the shipment will be used, including Customs clearance;
- each carrier must forward the original manifest by courier to any subsequent carrier, and the final carrier must forward the original manifest by courier to the recycler/disposer in time to allow the receiver to comply with its obligation to submit manifest to EC within 3 days of completion of shipment.
- Prohibition on abandonment of shipment in the course of import, export or transit prior to its completion in accordance with the permit.
- Obligations to complete final disposal or recycling:
- Obligation on receiving facility (disposer or recycler) to complete final disposal of hazardous waste or recycling of the hazardous recyclable material within 1 year (or 1.5 years total where there is a final destination);
- Canadian importer must submit certificate of final disposal within 30 days of final disposal;
- Contract between Canadian exporter and foreign importer must require foreign importer to submit certificate of final disposal or final recycling treatment within 1 year.
- Obligation to track to any final destination (if transferred but not treated at first facility) and obtain certificate of disposal or recycling at final destination
- Obligations arising upon failure to complete delivery or treatment as planned:
- Requirement on permit holder (i.e., the importer or exporter) to notify EC of failure to complete as per Notice and permit
- Requirement on permit holder to submit request for new permit based on revised plan within 30 days of failure to complete as planned.
- Requirement on permit holder for approval of any new proposed plan prior to any further movement taking place.
- Requirement on permit holder to repatriate shipment within 180 days if consent for new plan not provided by Environment Canada and other competent authority.
- Requirement for new permit and manifest for repatriation.
- Electronic filing shall have same legal effect as paper filing.
5.2.2 Rationale and Discussion
Most of the above scheme reflects the current EIHWR with some changes to facilitate compliance and improved the operation of the regulations. Unlike the current EIHWR, however, it is proposed that the new regulations describe each step in the process in a sequential manner. This is more consistent with plain language drafting, and should help users better understand all the elements involved.
In order to provide this clear sequence of requirements, the regulations may repeat some of the key provisions in the Act, including the requirement to submit a Notice, the prohibition on movement without a permit, and the prohibition on abandonment of shipments.
In addition, the proposed regime includes the following key changes:
Clarification of who may apply for a permit
As is the case at present, this will include generators, agents acting on behalf of government, site owners/operator removing wastes or recyclable materials from the activities at their facilities, bulkers who process wastes in a way that changes the material's physical or chemical characteristics.
These provisions will be bolstered by the protection provided by the requirements that:
- Person submitting notice for export or import must be resident in Canada and have a place of business in Canada.
- Person submitting notice for export must demonstrate the capacity to implement the obligations arising under these regulations upon non-completion of the shipment as planned.
- Person submitting notice for imports must own/operate the facility that operates the site of final treatment.
- Foreign exporters to Canada must be under jurisdiction of the country of export.
Together, these will ensure that exporters acting as agents for multiple generators either have a facility that can receive returned material or have a contractual arrangement with such a facility.
Use of the OECD Notice form
As modified to include information relevant to other provisions in CEPA (e.g., whether the applicant is subject to a waste reduction plan order under s. 188; whether the material is a track 1 CEPA-toxic substance; and information related to the ESM criteria described in Part 9, below).
The introduction of a relatively simple renewal mechanism, for repetitive notification. Discussions will be held with the provinces to determine whether such renewals can be processed more rapidly than new notices.
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Clarification of the obligations arising upon non-completion
Including the obligation for the Canadian exporter/importer to have a contractual arrangement with the foreign exporter/importer concerning obligations upon non-completion.
The new provisions concerning the responsibility of the carrier to ensure that they are listed on the notice and permit. Experience has shown that subcontracted carriers are sometimes used. Although it is the Canadian importers/exporters responsibility to only use authorized carriers, some onus will be put on the carrier to remain authorized and ensure they are on the permit.
A direct requirement on the carrier to be authorized, in default of which it is in breach of the regulations.
Reduced documentation requirements at the border. The proposed new provisions require only the manifest and the permit be carried to ensure compliance with these regulations.
Clarification of the obligations for rail and ship carriers. These proposed requirements reflect the recent agreement between the railway carriers and the Transboundary Movement Branch that will allow industry to import from the United States and remain in compliance with both the TDGR and EIHWR when the shipment involves movement by rail.
Expanded new authority for e-filing.
5.3 Control Regime for hazardous recyclable materials imported from or exported to other OECD countries (modified controls)
5.3.1 Proposed Elements
These provisions apply to material that is classified as hazardous recyclable material and whose final destination is recycling in an OECD country.
The same provisions as under 5.2, above, will be repeated here, with the following main differences:
- The permit issued will be a "Permit for the transboundary movement of recyclable materials between Canada and another OECD country".
- Brokers will be allowed to be exporters and importers on the notice.
- Consideration is also being given to facilitate the administrative process for imports into Canada where the material is not regulated in the country of export, particular for any requirements on the foreign exporter.
- Tacit consent:
- Provided agreement can be reached with the provinces which review notices, EC will presume consent and will issue a permit where a negative response to a notice is not sent within:
- 7 days for a pre-authorized facility; and
- 30 days for a non pre-authorized facility.
- A permit issued pursuant to tacit consent may be valid for up to one year, unless a longer time is authorized under an applicable international agreement (OECD Decision on recyclable allows up to three years in some cases).
- Pre-authorization: this part will retain Environment Canada's existing authority under the EIHWR to pre-authorize facilities for the treatment of hazardous recyclable materials. As is the case at present, a schedule to the regulations for the provinces may provide criteria to guide this decision. EC may try to simplify this process. Efforts will be made with the provinces to make this mechanism work in practice.
- Manifests: on a case-by-case basis, the permit may stipulate that a foreign exporter does not have to complete the consignor's portion of manifest where not required to do so by its own jurisdiction. In these cases, the Canadian importer must prepare the manifest and submit it at the border.
- Discretion as to the time limit for initiating "final recycling operations" (as defined in Schedule 2):
- One year will remain the default time limit.
- Up to three years may be permitted so long as:
- the time frame is set out in the original Notice with reasons to justify the extension; or
- the importer subsequently requests a longer time period, with sufficient reasons to justify the extension.
- In any event, the Canadian importer must submit certificate of final disposal or final recycling treatment within 30 days of final disposal (or initiation of final recycling).
5.3.2 Rationale and Discussion
The objective of this regime is to provide a flexible regime for hazardous recyclable materials while retaining the core elements required to manage risks effectively and to comply with international obligations. The various provisions described above each represent changes to the basic regime for hazardous wastes. The proposed control regime reflects the provisions concerning hazardous recyclable materials in OECD Decision C(92)39 and the Canada-USA Agreement.
A brief rationale for each of the main changes follows:
- The expanded scope of persons who may apply for a permit for pick-ups from multiple facilities will facilitate the emerging efforts to encourage retailers and others to pool their collective efforts to take-back and recycle materials such as batteries and mercury switches and thermometers. In many cases, these activities are only economically viable if the participants are allowed to pool their activities through the use of an agent who collects from multiple facilities. The authority to issue a single manifest for multiple pick-ups shipped as one load will support the same activities.
- The 7-day tacit consent period is provided for in both the OECD and Canada-US agreements, as is the 30-day tacit consent for re-imports and re-exports. Both are in the present regulations but not utilized to their fullest extent.
- The provision concerning manifests reflects the fact that some countries does not require generators or shippers of certain hazardous recyclable materials to obtain a permit or complete a manifest. The proposed provision will ensure that all shipments of hazardous recyclable materials coming into Canada will be accompanied by a manifest, but will reduce the added burden imposed solely by Canadian law on foreign exporters, where the material is not considered hazardous in the country of export.
- Finally, the proposal to allow persons to extend the default one-year time for initiating "final recycling operations" reflects the fact that some material collected for recycling may not enter recycling operations for over a year due to commercial or process-related factors. This authority will be carefully circumscribed. The maximum three-year limit will prevent abuses where material is shipped as a recyclable but stored indefinitely.
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6. CONSENT TO TRANSIT WITHIN CANADA
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6.1 Overview
This section will provide the control regime for approving the transit of hazardous wastes or hazardous recyclable materials through Canada or its waters.
6.2 Proposed Elements
Environment Canada proposes to retain the same provisions as the current EIHWR:
- For the purposes of subsection 185(1) of the Act, where Canada is only a country of transit, a person may import and subsequently export a hazardous waste only if:
- the import or export of that hazardous waste is not prohibited under the laws of Canada;
- the carrier is insured in accordance with these regulations;
- the transit complies with all applicable federal, provincial and municipal laws,
- copies of the manifest are submitted upon entry into and exit from Canada, and
- the conditions concerning the manifest in Part 5, above, are complied with.
In addition, this Part may contain new provisions clarifying requirements concerning transits through Canadian territorial waters, particularly with respect to tracking via manifest.
6.3 Rationale and Discussion
With the exception of submitting manifest copies for transits solely through territorial waters, the current provisions are effective.
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7. LIABILITY AND INSURANCE
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7.1 Overview
This part will describe insurance requirements.
7.2 Proposed Elements
Environment Canada proposes to retain the provisions in the current EIHWR:
- Exporters, importers and carriers of a hazardous waste or recyclable materials must have insurance for:
- any damages to third parties for which the exporter, importer or carrier is responsible; and
- any costs imposed by law on the exporter, importer or carrier to clean up the environment in respect of any hazardous waste or recyclable materials that is released into the environment.
- In the case of exporters and importers, the amount of insurance in respect of each export or import shall be at least $5,000,000 for wastes and $1,000,00.00 for recyclable materials.
- For carriers, the amount of insurance in respect of each shipment shall be the amount required by the law of the country in which the hazardous waste or recyclable materials is carried.
- A requirement to submit proof of this insurance at the time of notification.
- The insurance shall cover liability arising:
- for exports, from the time the hazardous waste or recyclable leaves the shipping site of the exporter to the time an authorized facility (including a facility in Canada if the waste or recyclable is returned to Canada in accordance with the regulations), accepts delivery;
- for imports, from the time the hazardous waste or recyclable material enters Canada to the time an authorized facility in Canada accepts delivery, or to the time the hazardous waste or recyclable leaves Canada in compliance with the repatriation of the shipment; and
- where Canada is a country of transit, from the time the hazardous waste or recyclable materials enters Canada to the time it leaves Canada.
7.3 Rationale and Discussion
At present, Environment Canada intends to retain the existing insurance provisions. At the same time, it intends to continue to discuss additional, related issues, such as:
- the linkage to the civil liability provisions under s.40 of CEPA, 1999;
- the extent of the generator's liability;
- whether to allow the above financial responsibilities to be satisfied in ways other than third party insurance (e.g., though a guarantee, a surety bond, or qualification as a self-insurer); and
- the Basel protocol5.
5Additional consultations in this specific area are planned
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8. PERMITS OF EQUIVALENT LEVEL OF ENVIRONMENTAL SAFTEY
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8.1 Overview
This part will elaborate the basis for issuing permits of equivalent level of environmental safety (PELES), as provided for under s. 190 of CEPA, 1999. Environment Canada proposes essentially the same PELES regime as it has proposed for the Interprovincial Regulations.
8.2 Proposed Elements
- It is proposed to use the same type of PELES provisions as in the Interprovincial Regulations. However, full compliance with international obligations will be a primary consideration.
- It will be important to ensure that these provisions provide public access to the application (equivalent to the public access described above for the conditional exclusion protocol).
- A detailed manual will be developed on the application process and to provide some further guidance on the types of activities that may be considered.
8.3 Rationale
Section 190 of CEPA 1999 authorizes the Minister to issue permits for the equivalent level of environmental safety. A PELES would allow for variances from the regulations. The Minister will issue a PELES only if satisfied, on a case-by-case basis, that the management option proposed provides the same level of protection for the environment and human health as afforded under the regulations themselves. Under these regulations, compliance with Canada's international obligations will be required for any PELES issued.
The above provisions stipulate the type of information an applicant for a PELES will be required to submit to demonstrate an equivalent level of environmental safety. The type of variance requested would need to be made clear in this type of application. In support of the variance, a full description and characterization of the waste or recyclable material would be required as well as the proposed management throughout the transboundary movement and the type of D or R operation to which it would be subjected. An application for a PELES therefore would need to include information such as:
- Address and contact information of the applicant.
- Where a person applies on behalf of the applicant (e.g. an association on behalf of a group of companies), the contact information for the person identified in the documents that will accompany the permit.
- A description of the hazardous waste or hazardous recyclable material.
- The requirements of these Regulations that the applicant proposes not to comply with.
- A detailed description of the proposal for the permit, including:
- the length of time or schedule of activities for which the permit is requested;
- the manner in which the applicant will manage the hazardous waste/recyclable material;
- an explanation of how the proposed management will ensure a level of safety at least equivalent to that achieved by complying with the Regulations, and
- test results, and any other information necessary to support the proposal.
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9. ENVIRONMENTALLY SOUND MANAGEMENT6
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9.1 Introduction
What Is Environmentally Sound Management? The Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal, which came into force in 1992, places responsibility on both exporting and importing countries for prohibiting shipment of wastes which they have reason to believe will not be managed in an environmentally sound manner.
The Convention defined "environmentally sound management" (ESM) as "taking all practical steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against adverse effects, which might result from such wastes." More specific ESM guidelines for specific R and D operations and waste streams have been developed under Basel to provide more specific guidance.
9.1.1 Background
In recent years, there has been a growing recognition of the need to review and improve the standards for environmentally sound management of hazardous wastes and hazardous recyclable materials in Canada and internationally. While federal and provincial/territorial governments in Canada have regulatory and other systems in place to control such materials, there is a need for continuous improvement in the way hazardous wastes are managed in today's rapidly changing world.
In developing effective regulatory and voluntary tools to strengthen hazardous waste management, Canada's expansive geography and the need for cooperation among its various jurisdictions must be fully taken into account. In developing such a framework, Canada is also in a position to influence current international initiatives.
In July 2000, the Minister of the Environment issued a call to action to the provinces and territories, urging them to work with Environment Canada to strengthen the standards for all facilities that accept hazardous waste. Accordingly, a working group under the Canadian Council of Ministers of the Environment has been engaged in the development of a national framework for environmentally sound management (ESM) of hazardous waste and hazardous recyclable materials.
This process is intended to result in a set of core criteria for the environmentally sound management of hazardous wastes and hazardous recyclable materials at all facilities in Canada, including the development of guidelines for safe treatment and disposal for specific wastes or processes.
While such criteria will constitute a key part of a Canadian framework for environmentally sound management of hazardous wastes and recyclable materials, Canada is also working toward the development of criteria in an international context. Specifically, Canada is working with Mexico and the United States through the North American Free Trade Agreement (NAFTA) Commission on Environmental Cooperation (CEC) to develop a North American approach to environmentally sound management of hazardous waste and hazardous recyclable materials.
Canada is also contributing to international efforts to develop ESM criteria, stemming from the Basel Convention and the OECD Decision on recyclables. Canada's involvement in these international processes will help to ensure that Canadian and international efforts are compatible.
Although it is intended that the development of core criteria, as noted above, will be the basis for standards applicable to all hazardous waste and hazardous recyclable management facilities in Canada, the subject of this stakeholder consultation is the management of hazardous wastes and hazardous recyclable materials that are imported to, or exported from, Canada.
The export and import of hazardous wastes is presently controlled in Canada under the Export and Import of Hazardous Waste Regulations (EIHWR) under the Canadian Environmental Protection Act (CEPA). While transboundary movement of hazardous and hazardous recyclable materials wastes pose special issues within the total picture of developing an ESM Framework in Canada, consistent principles and criteria will be applied in that respect.
6 Since this concept is still being developed this section of the paper does not propose specific provision but rather a discussion of the issue.
9.1.2 Need for Strengthened Criteria for Managing Exported/Imported Hazardous Wastes and Hazardous Recyclable Materials
While the volume of hazardous waste and hazardous recyclable materials exported out of Canada has not changed substantially, the volume of hazardous waste imported from the United States for landfilling had increased between 1997 and 1999. This increase has led to heightened interest on the part of stakeholders and regulators, in ensuring that Canada does not inherit environmental problems as a result of accepting hazardous waste where Canadian standards are different from those in the exporting jurisdiction.
The EIHWR were put in place in 1992 to control transboundary movements of hazardous wastes and hazardous recyclable materials in accordance with Canada's international obligations. The Regulations implement Canada's international commitments under the Basel Convention, the OECD Council Decision C(92)39 on wastes destined for recovery, and the Canada-USA Agreement on the Transboundary Movement of Hazardous Waste.
Subsection 185(2) of CEPA, 1999 authorizes the Minister to refuse to issue a permit for transboundary movement of a hazardous waste or hazardous recyclable materials, if the Minister believes that the waste or material will not be managed in a manner that will protect the environment and human health.
While the Act allows for implementation of ESM criteria by regulations, there are currently no regulations prescribing these criteria. In discussions with representative public and industry stakeholders, some possible approaches have been discussed for developing such criteria. However, further development of the principles and implementation mechanisms for such criteria is required.
9.1.3 Objectives
As a key part of an overall ESM framework, Environment Canada has proposed to introduce, more specific criteria for the management of exported/imported hazardous waste and hazardous recyclable materials. Stakeholder input is sought on the development of such criteria for imports and exports. At the same time, this round of consultations provides initial opportunity for stakeholders to provide input to the development of a broader ESM framework for managing hazardous wastes in Canada, integrating it with components that already exist or are in development7.
The purpose of this Discussion Paper is to stimulate the exchange of ideas on the development of such criteria and implementation mechanisms, by proposing a general model with some alternative configurations.
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9.2 Developing The Criteria
9.2.1 Principles Behind the Criteria
The overall effect being sought is that exported/imported hazardous wastes or recyclable materials are managed in a manner that will protect the environment and human health. A number of principles must be adhered to in order to achieve this outcome. While some principles apply to any facility managing hazardous wastes, others apply specifically to wastes which are subject to transboundary movement. In the more general context, some of the important principles include the following:
- The proposed treatment/disposal technology is appropriate for the waste or recyclable material type being treated or disposed.
- Emissions from the facility are within the regulatory limits of the jurisdiction in which they operate.
- The receiving facility monitors its emissions.
- Appropriate corrective action is taken where warranted.
- Persons involved in the management of hazardous wastes or hazardous recyclable materials are adequately trained in this capacity.
- The facility has an appropriate decommissioning plan and financial security for environmental damage, consistent with the type of facility and the risks its operations poses.
- Management of specific waste streams complies with relevant standards, guidelines, codes, including those at the international level.
- The proportion and nature of hazardous residue from a recycling process is at an acceptably low level.
- The volumes of hazardous wastes requiring treatment and/or disposal are minimized through source reduction or other means.
7 CEPA, 1999 also includes authority to control the import and export of prescribed non-hazardous wastes, including the establishment of ESM criteria for the review of any notices submitted for the import and export of these wastes. There are separate consultations being held on these regulations.
Principles that apply specifically to transboundary movements of hazardous wastes and hazardous recyclable materials include:
- The facilities involved in the proposed movement are authorized, licensed or subject to regulation by the jurisdiction where they operate.
- The proposed method of transportation protects the environment and human health.
- There is verification that the waste/recyclable material are actually recycled.
- Transboundary shipments and transport of hazardous wastes are minimized, taking into account the need for specific wastes requiring specialized treatment/disposal facilities, the proximity principle and the need for economically efficient as well as environmentally sound management.
- The overall level of care is not diminished as a result of the export/import.
The above principles are consistent with the principles articulated in the Basel Convention and subsequent documents on international movements of hazardous wastes and hazardous recyclable material such as the Basel Convention Framework document on the preparation of technical guidelines. In the present context, it is clear that both sets of principles will need to be achieved in order to reach an appropriate level of management of exported/imported hazardous wastes and hazardous recyclable material.
With the above principles defined, we can begin to construct the criteria that may be used by the Minister to determine whether the principles have been met, and thus deciding whether to permit or refuse a given transboundary movement.
9.2.2 Special Considerations for Hazardous recyclable material
The promotion of recycling over final disposal is an important principle in the waste management hierarchy. It is important that the implementation of ESM criteria promote rather than deter recycling. While many principles may be the same irrespective of the treatment operation, the specific criteria and how they are assessed may have to be altered to recognize the type of activity and risk of environmental contamination associated with it. For example, training is an important safety factor in all industrial activities.
However, the training required for the operator of a highly technical incineration process would be considerably higher than that for a process which involves shredding electronic scrap. As these criteria are developed, these differences will have to be taken into account.
9.2.3 Core Performance Criteria
Performance criteria are a means of assessing whether specific environmental safeguards are in place and operating effectively at a facility (e.g. specific treatment standards or emission levels). In some cases, a standard exists that can be used to measure whether the corresponding criterion is being met.
For example, the emissions of substances into the environment from the facility must be in compliance with the laws of the jurisdiction, before it can be said to be environmentally sound in this respect. In other cases, standards do not exist or may be outdated, and may need to be developed (e.g., defining what is a satisfactory monitoring program, or what pretreatment may be required prior to landfill).
The performance criteria of an ESM framework should consider all of the components of the waste disposal/recycling activity in question. Together, the performance criteria can be used to determine whether a facility is performing in an environmentally sound fashion, and thus form the core of the framework for environmentally sound management.
In addition, however, it is recognized that there are widely used processes to examine an organization or facility's management system, and aim at continuous improvement of its environmental performance, including its ability to anticipate, detect and react effectively to problems and apply corrective action where required.
These criteria, , can be referred to as management system criteria. In some cases, these principles may overlap with performance criteria as defined above. Certification under ISO 14000, for example, includes requirements for personnel training, emissions monitoring and corrective action. The use of management system criteria are discussed in 2.3.
It is also recognized that there are existing regulatory structures, codes and guidelines governing specific processes for the management of hazardous wastes and recyclable materials, and that new ones are constantly being developed in the various provinces/territories of Canada and in other countries.
Rather than duplicating these efforts, it may prudent to include some mechanism within the ESM mechanism which allows recognition of existing standards, codes or guidelines for specific waste management processes. This is discussed in 2.4.
9.2.4 Management System Criteria
To some stakeholders, ESM connotes management system standards that may be recognized by credible, standards setting organizations such as the Canadian Standards Association (CSA) or the International Standards Organization (ISO). Others interpret ESM as setting out with specific regulations or standards for technologies and procedures for transportation, destruction, storage and/or recycling and the associated permissible emissions.
While a management system standard may apply to a wide variety of businesses and activities, many stakeholders are of the view that the criteria involved in such systems are general in nature and not specific enough to decide if a specific process, method or safeguard is environmentally sound. On the other hand, management systems are effective in determining whether the processes of anticipating, reacting to and preventing recurrences are in place within an organization.
A management system standard is not only a measure of the facility's ability to meet performance-related criteria, but a means of assessing the likelihood a facility will meet them in the face of technical, regulatory and other changes (continuous improvement).
An optimum arrangement for an ESM Framework may be to have a combination of management system criteria alongside the core performance criteria as described above. In this case, the facility operator could present evidence of certification under a recognized environmental management system standard(s) such as ISO 14000 or EMAS (environmental management system developed and applied in Europe) as evidence of having effectively achieved some of the core performance criteria such as having programs for prevention, monitoring, training and corrective action.
9.2.5 Incorporating Other Standards
Specific hazardous wastes hazardous recyclable materials and treatment, recovery or disposal methods lead to specific challenges in many cases. Specific processes need to be assessed carefully, therefore, for environmental and health safety in regards to such matters as emissions to air, water or soil, the possible accidents and malfunctions that could occur, and waste residues generated.
To this end, standards, codes and guidelines have been developed by federal and provincial governments in Canada, in other countries or at the international level to guide the treatment, recovery and disposal of some hazardous wastes and hazardous recyclable materials or their constituents.
Environment Canada wants to avoid unnecessary duplication where such guidelines, standards and codes where they are available and effective for the purpose. It is proposed, therefore, that existing recognized standards should be used, and suitably referenced as part of the criteria. There should also be a provision for updating the regulations to take into account such new guidelines, standards and codes as they become available in Canada or elsewhere.
9.2.6 Assembling the Criteria
Collectively, the core performance criteria, management criteria, and linkages to other standards, guidelines or codes could form the criteria upon which the Minister decides whether to refuse or permit a proposed transboundary movement. A possible set of criteria to consider for inclusion in the revised Regulation are shown in Appendix A.
To add greater clarity and definition, more specific benchmarks standards could be further developed for each of the performance criteria. As an illustration, the criterion requiring a facility to monitor its emissions could be associated with several benchmark requirements, including an acceptable emissions monitoring technology, the maintenance of records, screening and recording of incoming and outgoing materials, ambient monitoring, a quality assurance/quality control (QA/QC) program, regular inspections of its storage, processing and other equipment, and so forth.
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9.3 PUTTING THE ESM FRAMEWORK IN PLACE
9.3.1 Introduction of the ESM Framework
Environment is of the view that it is important to develop an ESM Framework for use in Canada, to work in concert with the existing process of provincial certificates. A phased approach to implementing the ESM standards is recommended, as it would allow for the process to be continuously improved and for various regulatory and industry stakeholders to become familiar with the requirements. This approach would also assist in for ensuring consistency with other standards and processes in Canada and elsewhere.
The implementation process would begin by establishing and publicizing the inclusion of the criteria into the revised EIHWR. In the early stages of implementation, Environment Canada would work to develop awareness of the new requirements by, for example distributing fact sheets, explaining criteria, holding workshops. As new criteria and benchmarks are developed these could also be implemented, including a possible national ESM standard.
Figure 1 shows a possible scenario for evolution of the ESM model for EIHWR in Canada, moving from the introduction of the framework to a point several years later, and finally into the longer term future. The way in which international, national and provincial regulatory and other processes could feed into this evolution is also shown in the figure, leading ultimately to harmonized international and national standards. Facilities conducting specific activities could be certified for environmental soundness against such standards.
9.3.2 Integration with Other Jurisdictions
As noted above, federal and provincial/territorial governments are working together to develop an overall ESM framework for managing hazardous wastes and recyclable materials in Canada. The goal would be to promote harmonization of key criteria and provincial certificates of approval. Provinces will, of course, continue to be involved in the review of import notices to confirm consent to the import. Provinces would also be in a position to ensure that the facility is operating in a manner consistent with this ESM framework.
In the international context, the framework elements resulting from current OECD and other efforts could be used in Canada as an interim measure, until an international framework becomes available. Conversely, Canadian participants can contribute to international exercises from the standpoint of progress being made in Canada.
The long term vision is to develop an approach with other Basel signatories (as well as NAFTA and OECD), which requires a common set of criteria, a framework and implementation schedule such as described above. Once a consensus on an international standard has been achieved, its content and format can be assessed, and a decision made as to how it will be integrated into the Canadian ESM system. i.e., retain a "made in Canada" model which supports the basic principles.
9.3.3 Verification
A framework for environmentally sound management will only work as well as the system in place to ensure its criteria are actually being applied. Such a process can be referred to as verification. The provinces are responsible for the licensing of hazardous waste management facilities, and this includes the verification of environmental safety which is associated with the enforcement of license conditions and relevant regulations.
This will not change with the introduction of the ESM framework. The basics of a process for verifying whether the new EIHWR criteria have been met is discussed below.
To develop an effective verification system for exported/imported hazardous wastes and hazardous recyclable materials, a number of basic components would be required. A system would be necessary for reviewing each facility in order to document to what extent the criteria are being met in its current operations. To facilitate the development this mechanism, it would be helpful to elaborate the actual criteria to a somewhat further level of detail (i.e., benchmarks as discussed above). The benchmarks would serve as a checklist of elements to be examined and evaluated in the course of any on-site facility review.
Additionally, there would need to be a mechanism for reporting the results of the review to Environment Canada, including a schedule of regular follow-up reviews, a tracking system, and provision for requiring corrective action where there are deficiencies.
The review system could range from one where Environment Canada is directly involved in the actual verification process using its own inspectors, to one where the industry manages the verification process, with Environment Canada overseeing it. The latter might entail randomized inspections by Environment Canada inspectors, with sanctions for non-conformance. In terms of the facility reviews, one means is to have a self-certification mechanism.
Alternately, independent third-party auditors could conduct the reviews and report the findings to Environment Canada. This would require a system for training and accrediting auditors. The engagement of third-party certified auditors would operate in fashion similar to auditing processes currently existing in Canada.
The involvement of the industry could also take several forms. In a voluntary mode, industry could tailor a management system based upon the minimal requirements defined by Environment Canada and build on that. For example, while the criteria may require that a training program be in place, industries could develop their own training programs according to specific technical and other needs, provided that it meets the benchmarks
There are a number of important benefits that would accrue from having a system of clear and comprehensive criteria coupled with an effective system for verification:
- consistency of the rules, with more ease of interpretation and thus increased certainty in decision-making;
- increased certainty within industry regarding its legal obligations;
- opportunity for industry involvement in, voluntary mode;
- increased certainty that Canada's international obligations are being met;
- confidence in framework implementation due to the verification process and;
- continuous improvement in capacity for environmentally sound management, and ultimately enhanced level of environmental protection.
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9.4 MECHANISMS FOR IMPLEMENTATION IN EIHWR
9.4.1 Using the Criteria
The criteria could be fit into the existing system for assessing the environmental soundness of proposed transboundary movements, by adding them to a revised EIHWR. For example, using criterion #1in Appendix A, one of the criteria on which the Minister may base a decision whether to refuse or permit a shipment is "whether the facilities involved in the proposed movement are authorized, licensed or subject to regulation by the jurisdiction where they operate".
In applying for a permit for a shipment, notification under section 185 of CEPA would still be required. However, the revised Notification would request sufficient information so that the Minister decide whether the shipment should be permitted or refused based on the criteria.
Some criteria would clearly be fully mandatory (i.e., a facility must have an operating permit if one is required by the province where it is located). In other cases , the type of facility and risks associated may lessen the required degree of adherence to a specific criteria, for example, emissions monitoring is more important for an incinerator than a transfer station.
A further issue arises in respect to multiple shipments of the same hazardous waste or hazardous recyclable material by the same importer or exporter to the same facility. This sort of application comprises a large portion of shipments to/from Canada, with some sending as many as 2,000 shipments annually. A streamlining mechanism needs to be built into the system to accommodate routine and repetitive applications by a given party for shipping a particular waste or recyclable material type or number of waste types for management at the same facility.
This could be accomplished by establishing within the framework some mechanism for confirmation of consistency with the ESM criteria, whereby a particular activity involving a particular material type and process at a particular facility could be authorized subject to certain conditions, and effective over a specified time frame.
For example, the recycling of lead-acid batteries at a particular facility using a particular process could obtain a confirmation of ESM review effective for a specified time period. After this, and for a specified period, each similar Notification from the same exporter or importer would reference a ESM review number.
The verification process described above would be a key component of assessing whether an activity is considered consistent with the ESM criteria. Periodic reviews would need to be done on whether the facility and its proposed import or export activities continue to meet applicable ESM criteria, with provision for Environment Canada to revoke the ESM review confirmation if the facility failed to meet all the criteria, or to revoke it at any time if there were a significant adverse incident which cast doubt on the level of environmental safety.
Changes in the waste stream, operation, etc., would also prompt a review of the ESM status of the activity originally covered by the ESM review. This feature would allow exporters/importers to plan ahead and submit a information for an ESM review request in advance, say for the following year.
9.4.2 Use of Certifying Body
Another model that is worthy of consideration, is to house the ESM performance criteria in a new standard under a recognized certifying body such as the Canadian Standards Association (CSA) or other similar standards body. That document could then be used as an evaluation protocol. If the facility obtained certification under the protocol following verification, this could be used to demonstrate the facility has satisfied all of the ESM performance criteria set out in the revised Regulation.
The Ministerial decision process, then would contain two parallel paths. Evidence of certification under the recognized protocol would facility the review process. In other cases, the application would be evaluated on the basis of each of the specific criteria of the regulations. This feature would serve to streamline the decision process, as well as enhance consistency and predictability. This would need to be an auditing mechanism associated with this process.
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9.5 KEY ISSUES
Stakeholders are invited to offer their opinions on strengthening the requirements for managing exported/imported hazardous wastes and recyclable materials, as well as on the broader issue of developing an overall framework for ESM. Some of the key issues that may arise for stakeholders' consideration, include the following:
1. Performance Criteria
Are there, additional performance criteria that need to be incorporated into the framework, in order to achieve the overall effect of protecting the environment and human health against adverse effects? Is the level of detail appropriate (including consideration of possible benchmarks)? Is further clarification needed? Are there any suggestions for a better overall approach?
2. Management System Criteria
Environmental management systems (EMS) are effective in determining if continuous improvement processes are in place within an organization and apply to a wide variety of businesses and activities. However, the criteria involved in such systems are typically generic.
While they may be able to serve as indicators of a facility's competency in areas such as monitoring and training, can we be sure that evidence of an EMS in place is sufficient to grant or refuse a permit for a particular shipment of hazardous waste or hazardous recyclable materials for disposal or recycling? What do you think about a combination of core performance criteria and management system criteria?
3. Interaction with Provincial Processes
Once there is an agreement on the criteria and benchmarks, arrangements with the provinces could be made to review and confirm that provincial requirements for particular activities are consistent to the EIHWR ESM criteria. That way, compliance with provincial requirements would necessarily ensure compliance with EIHWR requirements.
Would such an arrangement ensure safe transport and management of hazardous wastes across Canada, and lead to an acceptable degree of uniformity among provinces/territories, without creating inter-jurisdictional interference or duplication of effort?
4. Use of Independent Standard
What do you think about housing the performance criteria in an ESM standard developed by a recognized body at arm's length from the federal government, and using that as part of an evaluation protocol?
5. Recycling Processes
What should the differences be in the way we apply the criteria when talking about "recycling" as opposed to processes that result ultimately in elimination or disposal of the hazardous material? If so, specifically how and why should they be different?
6. Environmental Standards in Country of Import
While hazardous wastes or hazardous recyclable materials should not be exported to take advantage of less stringent environmental or health standards in the country of import, standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries. Differences in regulatory approaches may or may not lead to differing levels of environmental protection.
The proposed criteria require the existence of an effective legislative and enforcement program in the country of import, and adherence with its emissions standards. How do we balance being too lenient with non-conforming facilities, as opposed to being seen as interfering in the affairs of another jurisdiction?
7. Justification for Transboundary Shipments
One of the proposed criteria is that disposal take place as close as possible to its point of generation to minimize transboundary waste shipments, while recognizing that economically and environmentally sound management of some wastes requires specialized facilities located at a greater distance, the proximity principle and the need for secondary raw material.
Is this position too lenient or too restrictive? Should there be different requirements for small and large facilities?
8. Waste Minimization
In your opinion how important, and how reasonable, is the requirement for waste exporters or generators to have an effective program for minimizing the generation/export of wastes destined for disposal as a criterion of assessing whether or not to permit an import or export? Should this be for any proposed facility or just for large facilities?
9. Verification System
What is your opinion concerning the proposed system for verifying conformity with the criteria? What about self-certification by importers or exporter or by third-parties being used in the verification process? Are there others that we should consider?
10. Implementation Strategy
What do you think of the proposed means of putting the criteria and framework into place? Will there be conflict or duplication with other processes in Canada? What about clarity and consistency? Does it pose an unreasonable regulatory or other burden on exporters/importers, and waste facilities? What about the time frame for phasing-in?
11. Substances of Special Concern
Should there be special consideration for substances of concern, such as those slated for virtual elimination?
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9.6 NEXT STEPS
This section of the paper proposes some means of developing an ESM framework for the management of exported/imported hazardous wastes and hazardous recyclable materials. It also considers ways of integrating it with discussions on ESM which are progressing in Canada and internationally, and for taking into consideration ESM elements, systems or standards that already exist or are developing.
Stakeholders are encouraged to provide their views on the possible form of an ESM framework for managing hazardous waste and hazardous recyclable materials, as well as on the development of ESM criteria and implementation. Stakeholder comments are also welcomed on the key issues listed here, as well as others that are raised.
Environment Canada will consider this input into account in formulating criteria for Ministerial authorization of transboundary shipments of hazardous wastes and hazardous recyclable materials to and from Canada, thus strengthening the Export/Import of Hazardous Wastes Regulations.
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10. WASTE REDUCTION PLANS
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10.1 SUMMARY OF SECTION 188
Section 188 of the Canadian Environmental Protection Act, 1999 creates a new authority for the Minister of the Environment. The Minister may require an exporter or class of exporters of hazardous waste or prescribed non-hazardous waste for final disposal to submit and implement a plan "for the purpose of reducing or phasing out" those exports. Once such a requirement is imposed, the Minister may refuse to issue an export permit if the plan is not submitted or implemented.
Section 191(g) authorizes the Government to develop regulations respecting these plans "taking into account: i) the benefit of using the nearest appropriate facility, and ii) changes in the quantity of goods the production of which generates hazardous waste to be disposed of by an exporter or class of exporters."
10.2 OVERVIEW OF PROPOSED MECHANISM FOR IMPLEMENTING SECTION 188
10.2.1 Overall Approach
Environment Canada intends to implement the waste reduction planning provisions in Section 188 in order to promote pollution prevention as part of its overall responsibilities for managing the import and export of hazardous waste.
Section 188 is an important element of the regime established in Part 7, Division 8 of CEPA, 1999 for the control of the import, export and transit of hazardous waste. Together, the permit process and the "environmentally sound management" (ESM) provisions in section 185 enable Environment Canada to ensure that imports and exports of hazardous wastes and hazardous recyclable materials are allowed only where they will be managed in an environmentally sound manner and where relevant accountability and tracking procedures will be followed. Section 188 complements these provisions by enabling Environment Canada to ensure that exporters address relevant pollution prevention opportunities to minimize the need for exports for final disposal.
Pollution prevention is a priority for Environment Canada. The preamble to CEPA, 1999 states that the Government of Canada is committed to implementing pollution prevention as a "national goal" and as "the priority approach to environmental protection." CEPA, 1999 defines pollution prevention as "the use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health."
This emphasis on pollution prevention is consistent with the Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal. Among its main features, the Basel Convention obliges parties to "ensure that the generation of hazardous wastes... is reduced to a minimum, taking into account social, technological and economic aspects" (Art. 4.2(a)). A closely related obligation is found in Article 4.2(d): "Ensure that the transboundary movement of hazardous wastes... is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes..."
Environment Canada recognizes that pollution prevention opportunities may not apply in all cases. Where final disposal is appropriate, it will be important to ensure that it occurs in an environmentally sound and efficient manner. This requires taking into account, among other things, the potential benefit of using the nearest environmentally sound facility. In some instances, this may justify the export of hazardous wastes for disposal, in particular in regions close to the Canada-US border.
In short, Environment Canada will use Section 188 to help ensure that Canadian generators and exporters of hazardous waste consider and apply pollution prevention strategies. As such, Environment Canada may require plans under section 188 in two related circumstances:
- Where it has determined that pollution prevention opportunities exist, the Department may use Section 188 to require specified exporters to prepare and implement plans to achieve targets based on those opportunities; and
- Where information is lacking on pollution prevention opportunities, the Department may use Section 188 to help ascertain whether exports for final disposal are the most appropriate option (i.e., whether pollution prevention opportunities exist to reduce the need for exports for final disposal).
Finally, Environment Canada also intends to ensure that it uses the authority in Section 188 in a way that is effective. All participants in the initial consultations on the application of Section 188 agree that waste reduction planning should not be a paper exercise that leads to no net environmental gain. The Department intends to require plans only in circumstances in which it is likely that the plans will lead to an environmental benefit.
10.2.2 Scope of Application
Section 188 applies to "exporters" or "classes of exporters". Environment Canada is considering defining "exporter", for the purpose of Section 188, to include the generator of the waste being exported. This would enable the Minister, where appropriate, to apply a waste reduction requirement to the generator of the waste, rather than only to an intermediary company established for the purpose of arranging exports.
10.2.3 When will the Department apply Section 188
Environment Canada proposes to rely on pre-determined criteria to guide its initial decisions concerning when and who will be required to prepare a waste reduction plan under Section 188. The Department intends to develop these criteria through a consultative process in parallel with the development of the new regulations.
10.2.4 What will be required
It is anticipated that the regulations will set out the mechanism to:
- Identify the types and levels of exports of wastes and the nature of the risks to be reduced; and
- Stipulate that plans prepared under Section 188 consider various factors, including options to reduce the generation of the specified wastes, enhance recycling, or reduce their toxicity.
10.2.5 Accountability
Subsection 188(1) authorizes the Minister to require designated exporters to "submit to the Minister ... a plan in accordance with the regulations." Subsection 188(2) requires affected exporters to submit "declarations" within 30 days after "the completion of each stage of the plan." And Subsection 188(3) authorizes the Minister to refuse to issue a permit to an exporter who does not comply with subsection (1) or (2).
It is anticipated that the regulations will establish the Minister's authority to stipulate the nature of the information to be submitted under Subsections 188(1) and 188(2). As is the case with pollution prevention planning under Part 4 of CEPA, 1999, it is anticipated that the Minister will require that the "plan" to be submitted under Subsection 188(1) contain:
- A certification from a senior executive confirming that the organization has reviewed pollution prevention opportunities, and commits to the accuracy of the report and to the targets described in the document; and
- Summary information related to issues such as:
- baseline performance levels,
- a description of how the plan accounted for any factors to be considered stipulated in the Section 188 requirement, including, for example, relevant pollution prevention options considered in the development of the plan;
- proposed performance targets, including interim targets and timelines, and
- a general description of the types of pollution prevention methods being applied.
Similarly, as is the case with pollution prevention planning under Part 4 of CEPA, 1999, it is anticipated that the Minister will require that the "declarations" under Subsection 188(2) contain:
- A certification from a senior executive confirming the accuracy of the information in the declaration;
- Pollution prevention measures implemented and performance results achieved to date;
- A brief explanation of any deviation from the targets and timelines set out in the "plan" submitted under Subsection 188(1); and
- Any changes in future aspects of the plan and its targets that have arisen due to changed circumstances.
Declarations may be required on a periodic basis, linked to notification, to track performance over time.
Finally, it is anticipated that, under Subsection 188(3), the Minister may consider unsatisfactory progress towards an interim or final waste reduction target as grounds for refusing to renew a permit or to issue a new one.
As is its practice with respect to all activities under CEPA, 1999, Environment Canada proposes to post on the Green Lane and on the CEPA Registry all requirements issued under Section 188, and all "plans" and "declarations" submitted under Subsections 188(1) and (2).
It is anticipated that affected persons should be able to provide the required information without divulging confidential information. Nonetheless, all persons subject to a Section 188 requirement will be able to submit a request under Section 313 of CEPA that specified information be treated as confidential.
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10.3 Proposed Regulatory Elements
- Definition of "exporter": The Department is considering stating in the regulations, that, for the purpose of the application of Section 188 and the following provisions, "exporter" includes the generator of the waste that is proposed for or being exported.
- Authority to require plans:
- The Minister may, at any time, publish in the Canada Gazette and in any other manner that the Minister considers appropriate a notice requiring any exporter or class of exporters described in the notice to prepare and implement a plan for reducing or phasing out the export of hazardous waste.
- The notice may specify:
- the waste or group of wastes in relation to which the plan is to be prepared;
- the commercial, manufacturing, processing or other activity in relation to which the plan is to be prepared;
- the factors to be considered in preparing the plan;
- the levels of export reduction to be achieved;
- the period within which the plan is to be prepared;
- the period within which the plan is to be implemented, including interim implementation dates;
- the date by which the plan must be submitted to the Minister;
- the information to be included in the plan to be submitted to the Minister;
- the information to be included in the declarations of implementation; and
- any administrative matter necessary for the purposes of this Part.
- Extension of time:
- Where the Minister is of the opinion that further time is necessary to prepare or implement the plan, the Minister may extend the period for a person who submits a written request before the expiry of the period referred to in the notice or of any extended period.
- The Minister shall publish in the Canada Gazette and in any other manner that the Minister considers appropriate a notice stating the name of any person for whom an extension is granted, whether the extension is for the preparation or implementation of the plan, and the duration of the period of the extension.
- Application for waiver: On a written request submitted by any person to whom a notice to prepare a plan is directed, the Minister may waive the requirement for that person to consider a factor specified under paragraph (2)(c) where the Minister is of the opinion that it is not reasonable or practicable to consider the factor on the basis of reasons provided in the request.
- Right to use a plan prepared for another purpose:
- Subject to subsection (2), where a person who is required to prepare or implement a plan has prepared or implemented a plan for reducing or phasing out the export of hazardous waste on a voluntary basis or for another government or under another Act of Parliament that meets all or some of the requirements of the notice, the person may use that plan for the purposes of meeting these requirements.
- Where a person uses a plan under subsection (1) that does not meet all of the requirements of the notice, the person shall:
- amend the plan so that it meets all of those requirements; or
- prepare an additional plan that meets the remainder of those requirements.
- Requirement to keep plan: Every person who is required to prepare a plan shall keep a copy of the plan at the place in Canada in relation to which the plan is prepared.
- Review process: The regulations will provide for the right of affected persons to submit a notice of objection to a decision under Section 188, and will authorize the Minister to establish a Board of Review, either under Sections 334 to 341 of CEPA, 1999 or under a similar process.
- Authority to issue a model plan: For the purpose of providing guidance in the preparation of a plan, the Minister may publish in the Canada Gazette or in any other manner that the Minister considers appropriate a model waste reduction plan or a notice stating where a copy of the plan may be obtained.
- Authority to issue guidance material concerning circumstances under which the Minister will require a plan: The Minister may develop a policy document or guidelines respecting the circumstances in which and the conditions under which waste reduction planning is appropriate.
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10.4 Possible Criteria to guide the application of Section 188 for hazardous waste exports
Environment Canada proposes to rely on policy criteria to guide its initial decisions concerning when and who will be required to prepare a waste reduction plan under Section 188. The Department proposes to promulgate these criteria as a policy document, rather than as regulatory provisions.
Environment Canada proposes that these criteria closely reflect the pollution prevention / waste management hierarchy in the Federal Pollution Prevention Strategy. The following proposed criteria are therefore designed to:
- reduce and eliminate the generation of hazardous wastes,
- encourage reuse,
- encourage recycling, and,
- where disposal is necessary, ensure environmentally sound, cost effective disposal.
Risks associated with the export of the waste for final disposal:
- Risks to human health and the environment associated with:
- The transportation of the waste.
- The final disposal of the waste
- Taking into account factors such as
- The inherent toxicity/hazard of the waste.
- The quantity/volume of the waste being exported.
- The likelihood of human or environmental exposure.
Relationship to other regulations and agreements:
- Whether the waste contains any CEPA-toxics or POPs subject to an international agreement to which Canada is a party.
The availability of cost-effective pollution prevention options:
- Taking into account factors such as:
- The availability of technology that would allow generators to cost-effectively reduce the amount of hazardous waste produced.
- The potential for cost-effective re-use or recycling of the wastes.
- The potential for the cost-effective, environmentally sound disposal of the waste in Canada (taking into account the benefit of using the nearest appropriate facility, regardless of which jurisdiction it is in).
- Whether the waste generated and exported is related to increased production volumes.
- Whether the shipments are from an ongoing source of waste generation, or arise from a "one-off" activity. (If the latter, then a waste reduction plan is unlikely to be effective).
- Past and ongoing pollution prevention efforts.
- Whether the persons generating or exporting the waste have committed to reduce the generation or final disposal of the waste through participation in another comparable provincial or federal voluntary pollution prevention program, including the successor program to the Accelerated Reduction and Elimination of Toxics (ARET) program.
- Competitiveness impacts and fairness in relation to other industry participants.
The likelihood a Section 188 plan will lead to a reduction of exports of the hazardous waste for final disposal:
- After considering the above criteria, will a Section 188 Order lead to:
- Reduced generation?
- Increased reuse or recycling?
- More environmentally sound final disposal?
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SCHEDULE 1: D LIST
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Disposal (D) Operations:
D1 Release into or onto land, other than by any operation set out in D3 to D5 and D12
D2 Land treatment
D3 Deep injection
D4 Surface impoundment
D5 Specially engineered landfilling
D6 Release into water, other than a sea or ocean, other than by the operation set out in D4
D7 Release into a sea or ocean, including sea-bed insertion, other than by the operation set out in D4
D8 Biological treatment, not otherwise set out in this table
D9 Physical or chemical treatment, not otherwise referred to in this table, such as evaporation, drying, calculation, neutralization or precipitation
D10 Incineration and thermal treatment on land
D11 Incineration and thermal treatment at sea
D12 Permanent storage
D13 Blending or mixing prior to disposal by any operation set out in D1 to D12
D14 Repackaging prior to disposal by any operation set out in D1 to D13
D15 Interim storage
D16 Release, including the venting of compressed or liquefied gases, or treatment, other than by any operation set out in D1 to D12
D17 Testing of a new technology to dispose of a hazardous
D18 Operations, other than D1 to 12 or D16, as defined by the regulatory authority
Footnotes:
D1-D12, D16 and D18 operations are considered to constitute final disposal.
Whereas,
- D13-D15 and D17 operations are considered intermediary operations which will lead to final disposal; and
- D15 refers to the interim storage operations undertaken at transfer stations.
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SCHEDULE 2: R LIST
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Recycling (R) Operations:
R1 Use as a fuel in an energy recovery system, where the heating value of the material is at least a net BTU value of 12,780 kJ/kg (5500BTU/lb).
R2 Recovery or regeneration of substances that have been used as solvents
R3 Recovery of organic substances that have not been used as solvents
R4 Recovery of metals and metal compounds
R5 Recovery of inorganic materials other than metals or metal compounds
R6 Regeneration of acids or bases
R7 Recovery of components used for pollution abatement
R8 Recovery of components from catalysts
R9 Re-refining or re-use, other than the operation set out in R1, of used oil
R10 Land treatment resulting in agriculture or ecological improvement
R11 Use of residual materials obtained by any operation set out in R1 to R10 or R14
R12 Exchange of a recyclable material for another recyclable material prior to recycling by any operation set out in R1 to R11 or R14
R13 Accumulation prior to recycling by any operation set out in R1 to R11 or R14
R14 Recovery or regeneration of a substance or use or re-use of a recyclable material, other than by any operation set out in R1 to R10
R15 Testing of a new technology to recycle a hazardous recyclable material
R16 Interim storage
R17 Operations, other than R1 to 11 or R14, as defined by the regulatory authority
Footnotes:
R1-R11, R14 and R17 operations are considered to constitute final recycling operations.
Whereas,
- R12-R13 and R16 are considered intermediary operations which will eventually lead to recycling; and
- R16 refers to the interim storage operations undertaken at transfer stations.
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SCHEDULE 3: LIST OF HAZARDOUS WASTE AND HAZARDOUS RECYCLABLE MATERIAL
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List 1: Specific Substances and Compounds
All specifically listed substances in Schedule 2 of TDGR (clear language version).
List 2: Types of Hazardous Waste and Hazardous Recyclable Material
(From proposed Interprovincial Regulations plus any items required for harmonization with Basel Convention and OECD Decision C(92)39.)
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SCHEDULE 4: LIST OF HAZARDOUS CHARACTERISTICS
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TDG Classes 2 to 6 and 8 and 9, as per the Interprovincial Regulations.
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SCHEDULE 5: CRITERIA TO DISTINGUISH RECYCLABLE MATERIALS FROM PRODUCTS
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The following are criteria have been used by Environment Canada to characterise materials to be considered as wastes or recyclable materials. (It is important to emphasise that these criteria need to be examined as a whole.):
- It is unavoidably produced in the generation of another material or it is at the end of its useful life.
- It is intended for final disposal (including storage) or it is a recyclable that requires recovery/treatment before it can be used.
- Its production is not subject to adequate quality control or national/international standards.
- It may meet industrial requirements for use as an ingredient only under certain circumstances or only in one facility.
- It has a low or negative economic value.
- Its markets are not well defined, unstable or are very limited.
- Its use/reuse generates wastes that must be further treated in excess of those which may result from the use of virgin input.
- It has a great potential for contamination that would make it more hazardous than the product it replaces.
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SCHEDULE 6: FORMS
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The regulation may include the following forms as schedules:
- Notices
- Notice Amendment
- Manifest
- Application Form For A Permit of Equivalent Level of Environmental Safety
- Application for Conditional Exclusion Protocol
- Certificate of Final Treatment/Recycling
- Application for Pre-Authorization of Recycling Facility, etc.
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APPENDIX "A"
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PROPOSED CRITERIA FOR ENVIRONMENTALLY SOUND MANAGEMENT OF IMPORTED/EXPORTED HAZARDOUS WASTES
The purpose, form and use of core performance criteria have been discussed in the text of the Discussion Paper. Collectively, the core performance criteria would form much of the basis for the Minister's decision under Section 185 (2) of CEPA on whether to approve a given transboundary movement of hazardous wastes or recyclable material.
To add greater clarity and definition, more specific benchmark standards could be developed for each of the performance criteria. The benchmarks could add clarity and consistency to decisions based on the criteria. The benchmarks could also be used to form a "checklist" for Environment Canada or third-party auditors who are conducting facility inspections that are key to the verification process as described in the Discussion Paper. Table A-1 shows some possible benchmarks corresponding to each of the proposed criteria.
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