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

• Testing and Leachability
• Small Quantity and Testing Exemptions
• Exemptions for Household Waste and Returned Products
• Derived-From Rule
• Criteria for Corrosivity
• Authorization for Facilities and Carriers

A number of stakeholders commented on the definitions found in the proposed Regulations and asked for further clarification on some points.

The meaning or purpose of the "(b)" of the definitions for hazardous waste and hazardous recyclable material is not clear.

Response: The definition of both hazardous waste and hazardous recyclable material will prohibit the export of wastes and materials from Canada into a country that has declared these wastes and materials hazardous under the Basel Convention and prohibits their import. These wastes will be considered hazardous for the purpose of the proposed Regulations and will, therefore, not be granted an export permit to that country.

Testing and Leachability

It would be desirable if the qualification and limitation for the use of the "leachate characteristic test" and environmentally hazardous test (Appendix 4 and 5) could be clarified/spelled out in the proposed Regulations.

Alberta Environment does not require that the leachate test be applied to plastic shreds.

The Toxic Characteristic Leachate Procedure (TCLP) provides an appropriate basis to assess a hazard that may arise from disposal of a hazardous waste, but is not relevant to the transportation, storage and processing of recyclable materials.

The tests for determining whether a waste is "hazardous" are set out in separate TDGR regulations. The new regulation for example lacks reference to current exclusions as outlined in Part 1 of this submission, and does not acknowledge the exclusions listed in other regulations that Environment Canada has linked (TDGR Sec. 2.43 (b) (iv)&(v), and US EPA 40 CFR, 261.33) to the EIHWR.

Response: Provisions have been made to include both of these criteria directly in the proposed Regulations. The proposed Regulations clarify that the waste or recyclable material need not be shredded in order to determine leachability using the TCLP. The TCLP is used as a measure of the availability and mobility of hazardous constituents, as recyclable materials may come into contact with the environment under such circumstances as improper stockpiling.

The hazardous characteristics set out in the proposed Regulations will apply to both hazardous wastes and hazardous recyclable materials.

Small Quantity and Testing Exemptions

A number of industry and association stakeholders commented that the proposed Regulations should provide exemptions for the hazardous waste disposal industry for the purpose of testing. Both industry and association stakeholders commented that

Environment Canada has provided an exemption to the hazardous recycling industry for import or export of Hazardous Recyclable Material "for the purpose of conducting tests or research with respect to recycling of that material."[EIHWR, Section 2 (a) (i)]. The proposed Regulation should be amended to provide the hazardous waste disposal industry with exemptions for the purpose of conducting testing or research related to improved disposal or destruction technology.

The small quantity exemption of 5kg/5L should be increased to 200 kg/200L.

Response: The proposed regulatory exemption for the purpose of testing hazardous recyclable materials is in accordance with the modified control regime of the OECD Decision for wastes destined for recycling. This exclusion applies to hazardous recyclable material shipped within the OECD that -does not exceed 25 kg/L, and is to be used for the purpose of testing or analysis. Since the Basel Convention does not allow for a similar exclusion, the proposed Regulations do not include such a provision for wastes destined for disposal.

The small-quantity exemption of 5 kg/L is consistent with the exemptions set out under the TDGR.

Exemptions for Household Waste and Returned Products

A number of industry and association stakeholders commented that the proposed Regulations include exemptions for household hazardous waste and returned products.

The exemptions for household hazardous wastes and products to be returned to the manufacturer found in the current EIHWR should be included in the proposed Regulations as these could exceed the proposed 5Kg/5L minimum quantity by householders taking their wastes to depots.

It should be specified that the minimum quantity levels do not apply to intra- provincial shipments in the Regulations.

Response: The intent of the minimum quantity is to exempt wastes that are household in origin, and to control depots and transfer stations. Specific exemptions for household hazardous wastes and hazardous recyclable material have been incorporated into the proposed Regulations.

"Return to manufacturer" refers to the return of products to manufacturers or the return of containers with residues for refill. The proposed Regulations will not control the export or import of products. The proposed Regulations will, however, apply when residuals are exported or imported for disposal or recycling. Environment Canada will consider further clarification through compliance-promotion material.

Derived-From Rule

A provincial stakeholder commented that a derived-from rule should be included in the definition of hazardous waste and hazardous recyclable material.

"The combination of an open-ended definition and no derived from rule invites unsound disposal under guise of "recycling" where only a small portion of a waste shipment is "recycled" and the remainder disposed of in a manner that would be unknown under these regulations."

Response: A derived-from rule implies that a material that was once a hazardous waste or hazardous recyclable material will retain that classification even after treatment, unless it is delisted. Environment Canada has not adopted this approach. The proposed Regulations will apply to waste and recyclable material that fall within the scope of the definition. Following an export or import of hazardous waste or hazardous recyclable material and its subsequent disposal or recycling, residues must be managed in accordance with the legislation of the jurisdiction.

Criteria for Corrosivity

The pH range should be left as 2.0 to 12.5 (rather than 11.5) which is harmonized with the U.S.

Response: In August 2002, Transport Canada amended the TDGR. Part of this effort was to update the hazard classifications to align them with the 11th edition of the UN Recommendations. This included adopting OECD Guideline No. 404 for corrosion. As a result of this amendment, the revised hazard classifications were incorporated into the EIHWR, since this Regulation uses Class 8 criteria for corrosives.

Environment Canada proposes to continue using these criteria in the proposed Regulations in order to harmonize them with Canadian regulations and international guidance.

In the TDGR, substances are included in Class 8, Corrosives in the following three ways:

• material that is known to cause the full-thickness destruction of human skin;
• material that causes the full-thickness destruction of human skin, as determined in accordance with the OECD Guidelines; or
• material that exhibits corrosion, as per the ASTM Corrosion Test

Consequently, any material that would not be considered Class 8 under the TDGR would not be controlled under the current EIHWR or the proposed Regulations.

Authorization for Facilities and Carriers

Must the authorizations [for authorized facilities and carriers] be in written form (i.e.: through a permit, certificate of approval, etc) or can the authorization also be by compliance with a regulation (i.e.: "permit by rule" approach)?

Does this include facilities that are authorized by the applicable laws of the jurisdiction as well as those that are exempted? If they are exempted by applicable laws does this mean they are not authorized or is this limited to facilities that have an authorization issued by a competent government authority?

"Authorities" are the provincial departments of the environment listed in the Compilation of County Fact Sheets (CFS)?

It is not clear as to the applicability to federally regulated railway with respect to the definition of "authorized carrier and registration number."

Is there precedence as to which number would appear if both Environment Canada and a province issue a registration number?

Response: The definition of authorities has been clarified to define the authorities of the applicable country.

Authorization must be made in a form that is applicable and acceptable to the responsible jurisdiction, either through regulation, legislation, or permit. The regulatee must submit a notification to Environment Canada containing the registration number of either the province/territory of import or the country of export/import. The notice will then be forwarded to the province/territory of import for approval. Some provinces/territories may exempt certain facilities if their wastes or recyclables are not regulated by the jurisdiction in which the facilities are located. In such cases, the facilities are considered authorized.

Environment Canada does not issue registration numbers for hazardous waste or hazardous recyclable material.