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Reply to Comments Received in Submissions on the Proposed Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations

Comments and Reply: Other General Comments

What is the status of "prior informed consent" (PIC) under these regulations?

Response: Prior informed consent (PIC) is still required under the proposed Regulations, consistent with obligations set out by Canada's international agreements. Section 185 of CEPA 1999 details this requirement: prior to an import, export, or transit, advance notice must be submitted to the Minister; a permit may be granted following a review of the notice and approval from the authorities in the jurisdiction of destination.

Is there an identification number for characteristic "ignitable materials", or is the hazardous-property criterion referring to individual solvent component testing? The material that we currently recycle meets the definition of "Characteristic of Ignitability" (D001) per U.S. regulations, and there did not appear to be an equivalent category in the proposed waste definitions. If there is not an equivalent category in the proposed rules, how can this mixed paint-solvent stream be best identified under the proposed regulations?

Response: The "Characteristic of Ignitability" (D001) under U.S. Regulations, is to a large degree equivalent to the hazardous-property criterion of Class 3 (Flammable Liquids) under the TDGR.

In the current EIHWR, there is a provision that states where only part of a hazardous waste is destined for recycling, the hazardous waste shall be considered to be destined for recycling. This provision is not allowed for in the proposed Regulation. It is important that the proposed Regulations will provide for a mechanism that takes this situation into account.

Response: Such a provision is not deemed necessary, as the definitions of hazardous waste and hazardous recyclable material have been decoupled. If a portion of a material is destined for recycling, it will fall under the hazardous recyclable material definition.

Insurance policies usually cover a period of 12 months. Wastes are frequently received towards the end of the validity of the insurance policy and may be returned at the beginning of the validity of the new insurance policy. The coverage period for liability insurance should be modified to reflect reality.

Response: Insurance must be valid for the duration of the permit and any subsequent returns. As such, the name and number of the necessary insurance policy must be provided upon notification, and must remain valid for the duration of the permit.

Since EIHWHRMR presently references TDGR and Appendix 5, how are PCB contaminated wastes to be properly classified? Although there is a listing for Polychlorinated biphenyls in Schedule 1 of TDGR under UN2315, it is also listed in Appendix 5 which would allow someone to classify is as an ENVIRONMENTALY HAZARDOUS SUBSTANCE, UN 3082 OR UN3077. The listing should be removed from TDGR Appendix 5 as this double listing is totally confusing.

Response: There is a provision in the proposed Regulations to include Appendix 5 of the TDGR. PCBs are listed in this appendix at a threshold of 50 ppm, therefore, any waste or material destined for disposal or recycling that contains 50 ppm or more of PCBs is subject to the proposed Regulations. The TDGR prescribe a specific UN Pin Number for PCBs for shipping and documentation purposes. In this case, UN 2315 should be included on the tracking document.

There remain significant uncertainties as to when a "recyclable material" has undergone sufficient transformation to be considered a "recycled material" that is equivalent to a commercial product or intermediate. As jurisdictions struggle with waste diversion issues, the pressure to recycle materials will increase. Investment in recycling infrastructure, which pre-processes end of life materials into usable raw materials for industry, is increasing. The issue of waste/no waste will continue to be the centre of controversy and we urge Environment Canada to continue investigation into providing greater regulatory certainty and predictability to define sufficient transformation from a waste into a product. A discussion paper from Environment Canada on wastes/recyclables/products was published. This was not addressed; what is the future path on this from Environment Canada?

Response: If a waste or recyclable material is intended for an operation listed in Schedule 1 or Schedule 2 and exhibit a hazard, it is subject to the proposed Regulations.

Typographical error in 3(2)(b)(ii), page 704. We believe this should read, " ... set out in clauses (2)(a)(ii)(C) and (D) of these regulations," instead of " ... set out in clauses (1)(a)(ii)(C) and (D) of these regulations,".

Response: This has been corrected.

The regulations should come into force 90 days after registration so as to allow stakeholders time to gain understanding and develop competency. Also, this will give Environment Canada time to implement the new forms and progress or complete development of guidelines and stakeholder consultations on such. A consequential amendment should be done to allow previous notices and manifests (old format) be recognized for a specified period.

Response: Environment Canada agrees that there should be a coming-into-force period for the proposed Regulations. The date on which the Regulations come into force will be at least 90 days after their publication in The Canada Gazette, Part II. Permits issued prior to this date will remain in force until their expiry date.

During the consultation meetings in Atlantic Canada, there was a genuine interest in providing protection for the Canadian North as well as the South Pole. Has any consideration been given to provide some mechanism for protection of our own North?

Response: The conditions of the Basel Convention prohibit hazardous wastes, including recyclable materials, from being exported south of 60o latitude (Antarctica). This is reflected in the proposed Regulations as a condition of export. In the case of an import into Canada, the hazardous waste or hazardous recyclable material may only be destined for an authorized facility, as granted by the provinces and territories.

To the extent that batteries or electronic scrap are construed by the OECD Council Decisions C(92)39 and C(2001)107 on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations or the Basel Convention to be non- hazardous materials, we submit that such materials should not be characterized as hazardous wastes or hazardous recyclable materials under the proposed Regulations. For example, under the OECD Decision and Basel Convention lithium batteries are not listed as hazardous (i.e., not part of OECD Appendix 4) and therefore are not subject to amber import and export controls. The proposed Regulations, however, include Class 9 dangerous goods in the definition of "hazardous recyclable material." Since lithium batteries are a 'Class 9 dangerous good', they would be regulated as hazardous recyclable material. Environment Canada's proposed definition of "hazardous recyclable material" should be amended to be consistent with OECD and Basel requirements, and such amendments should include striking any reference to materials controlled by Canada's Transportation of Dangerous Goods Regulations. Dangerous goods are already sufficiently controlled by Canada's transportation regulations and, except in cases where the dangerous goods and OECD amber lists overlap, do not require the proposed hazardous recyclable material controls.

Response: The TDGR address safety in transport. CEPA 1999 and the proposed Regulations implement Canada's international obligations of prior informed consent. Batteries are listed specifically in the Basel Convention, and are incorporated by reference in Appendix 4 of the OECD Decision. Lithium-metal batteries fall within the boundaries of Class 9 wastes or materials that require control under Federal Regulations, while lithium-ion batteries do not.

Requirement for recycling hazardous recyclable material at authorized facilities, when the importing country, i.e. USA does not require the authorization of such facilities is not clarified. Even though the OECD Decision supports the requirement "that all recyclable materials, including those that are not controlled, must be recycled at an authorized facility", this is not apparent for shreds from recycled pesticide containers.

Response: The OECD Decision requires that facilities be authorized to receive and manage materials. The United States prescribes management practices with respect to hazardous waste, including hazardous recyclable material. It should be noted that certain recyclable materials are excluded from the definition of hazardous waste under U.S. legislation, and that facilities managing these wastes may be subject to modified waste-management requirements.

Environment Canada should amend this regulation by providing stakeholders with key information such as tests. Additionally Environment Canada should remove its links and references to various regulations.

Response: To the extent possible, steps have been taken to minimize cross references in the proposed Regulations. However, rather than repeat the provisions of the TDGR in the proposed Regulations, Environment Canada concluded that it was more appropriate to reference the hazard criteria and related tests.

Generators and rail carriers have developed powers of attorneys to facilitate the handling of waste manifests. This process has been successful and it is recommended that a provision be formally adopted within the regulatory text to reflect this option.

Response: The proposed Regulations include provisions to allow rail carriers to use the rail consist in place of the movement document, provided that the movement document is sent to the next authorized carrier, importer, or foreign receiver.

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