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Reply to Comments Received in Submissions on the Proposed Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
Table of Contents
Published on March 20, 2004, in Part I of the Canada Gazette
Transboundary Movement Branch Environment Canada
This document provides Environment Canada's responses to the comments received on the proposed Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations published in the Canada Gazette, Part I on March 20, 2004.
All submissions received were compiled on CD-ROM and distributed in September 2004.
Parties Providing Submissions
Submissions on the proposed Regulations were received from the following stakeholders.
- Centre for International Studies and CEN/Toxics Caucus
- Pembina Institute for Appropriate Development
- European Communities
- Alberta Environment
- British Columbia Ministry of Water, Land and Air Protection
- New Brunswick Department of Health and Wellness
- New Brunswick Department of the Environment and Local Government
- Newfoundland Department of Environment
- Nova Scotia Environment and Labour
- Quebec Ministry of the Environment
- ARMCA (ALBERTA Ready Mixed Concrete Association)
- Association of Canadian Industries Recycling Coal Ash (CIRCA)
- Canada's Chemical Producers Association (CCPA)
- Canadian Association of Recycling Industries (CARI)
- Canadian Chamber of Commerce
- Canadian Electricity Association
- Canadian Petroleum Products Institute (CPPI)
- Canadian Vehicle Manufacturers' Association (CVMA)
- Coal Association of Canada
- Conseil patronal de l'environnement du Québec (CPEQ)
- Electronic Industries Alliance (EIA)
- Mining Association of Canada (MAC)
- Ontario Waste Management Association (OWMA)
- Railway Association of Canada (RAC)
- BC Hydro
- Clean Harbours Canada
- CropLife Canada
- Dominion Ash
- DOW Chemical Canada Inc.
- Hewlett-Packard (Canada) Co.
- Hotz Environmental
- Lafarge Canada Inc.
- Lafarge North America
- New Brunswick Power
- NEWALTA Corporation
- Noranda Inc. & Falconbridge Limited
- Nova Scotia Power
- Ontario Power Generation
- Praxair Canada Inc.
- Safety-Kleen Canada Inc.
- Shaw Resources
- Stablex Canada Inc.
- Stericycle Inc. - Canada
- Teck Cominco Metals
- TransAlta Corporation
Treated-Wood Industry and Associations
- Arch Wood Protection Canada Corp.
- Bell Pole
- Brisco Wood Preservers Ltd.
- Canadian Institute of Treated Wood
- Canadian Wood Council
- Goodfellow Inc.
- L & M Wood Products (1985)
- Prairie Forest Products Ltd.
- Railway Tie Association
- RAM Forest Products Inc.
- Rutgers Chemicals, VTF Canada Inc.
- Shelburne Wood Processing Limited
- Spray Lake Sawmills
- Stella Jones
- Tie Yard of Omaha
- Timber Specialties Co.
- Total Forest Industries Ltd.
- Treated Wood Council
- United Wood Products Company
- Vulcan Chemicals
- Western Wood Preservers Institute
- Osler Hoskin & Harcourt
Please note that comments submitted in French and cited in the document were translated from the original French submissions distributed in September 2004.
Comments and Reply
This section provides a summary of comments received grouped by themes and Environment Canada's response.
- Pre-Approved Facilities and Three-Year Permits
- Decoupling the Definition of Waste and Recyclables
- Content of Notice
- Conditions of Export and Import
- Movement Document
- Returns and Reroutements
- Confirmation of Disposal or Recycling
- Low-Risk Recyclables
- Waste-Export Reduction Plans
- Environmentally Sound Management
- Permits of Equivalent Level of Environmental Safety
- Public Access to Information and Decision Making
- Schedule 2 - Recycling Operations for Hazardous Recyclable Materials
- Schedule 3
- Schedule 4
- Schedule 5
- Schedule 6
- Persistent Organic Pollutants
- Vanadium Pentoxide
- Treated Wood
- Other General Comments
- Interprovincial Comments
The following is a list of references and their acronyms used in this document.
- Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989
- Basel Convention
- Decision of Council Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations, C(92)39/Final, 1992, as amended and replaced by C(2001)/107/Final
- OECD Decision
- Canada-United States Agreement Concerning the Transboundary Movement of Hazardous Wastes, 1986
- Canada / U.S.A. Agreement
- Export and Import of Hazardous Wastes Regulations
- Transportation of Dangerous Goods Regulations
- Canada Gazette, Part I
- Canadian Environmental Protection Act, 1999
- CEPA 1999
- United States Environmental Protection Agency
- U.S. EPA
Comments and Reply: Harmonization
A number of industry stakeholders recommended that the proposed Regulations be harmonized with either provincial regimes or the approach taken in U.S. Regulations.
Harmonization with the United States
Considering Environment Canada's statistic that more than 95 percent of the Canadian trade in hazardous wastes/hazardous recyclable materials is with the United States, it would seem practical to directly align to OECD commitments as opposed to other international agreements such as Basel. Also, since Basel allows for an opt out if other equivalent agreements are in effect - such as the Canada/USA agreement or multilateral agreements such as the OECD decision(s) - alignment to these other recognized agreements would also mean Canada is complying with Basel obligations. A customized Canadian solution can recognize our unique situation (USA/Canada trade) as well as yield a competitive advantage for Canada and meet our international obligations (Basel plus others) all the while delivering greater environmental protection not only in Canada but with our major trading partner as well.
Harmonization between Canada and the US regulations is critical to avoid rail transportation disruption including railway interchange and intermodal operations.
We would hope that your proposed rule changes recognize the changes that the US EPA recently proposed with respect to the definition of "solid waste." The proposed rule changes are intended to revise and clarify the RCRA definition of solid waste as it pertains to certain types of hazardous secondary materials that, because they are not being discarded, are not regulated wastes under RCRA Subtitle C. Any material which is generated and reclaimed in a continuous process within the same industry is not "discarded" for the purposes of Subtitle C, and further provided that the recycling process is "legitimate".
Response: Article 11 of the Basel Convention allows parties to the Convention to enter into bilateral agreements, as long as such arrangements do not derogate from the environmentally sound management of wastes. Accordingly, the Canada-U.S.A. Agreement and its supporting regulatory framework are aligned with the control procedures set out in the Convention.
Environment Canada agrees that the proposed Regulations should be harmonized with those of the United States to the extent possible. As such, Canada's definitions of hazardous waste and hazardous recyclable material are harmonized with those of the U.S. using a hazardous characteristic and listing approach, while Schedules 1 and 2 are consistent with both the Basel Convention and OECD Decision.
Comments and Reply: Pre-Approved Facilities and Three-Year Permits
A number of industry and association stakeholders requested that permits be extended from 1 year to 3 years, in particular to pre-approved facilities.
A number of industry and association stakeholders commented that Environment Canada consider a 3-year notice validity for imports/exports. This would ease the administrative burden on importers, exporters, and governments without posing any additional environmental risk.
The ability to have pre-approved waste facilities to shorten the permit application process time. This is no longer available in the proposed amendments. The RIAS states this will be handled administratively. Guidelines should be developed. Also, it would be of administrative benefit to industry to extend the approvals to three years rather than just one year.
Response: All permits may be valid for up to one year, in accordance with the Basel Convention and OECD Decision. Permits issued to pre-approved facilities may be valid for up to three years, in accordance with the OECD Decision
The administrative pre-approval process will be addressed through compliance-promotion material and based on the OECD Decision, which outlines minimum requirements for pre-approval. This will be consistent with the information requirements currently listed in Schedule IV of the current EIHWR.
Comments and Reply: Decoupling the Definition of Waste and Recyclables
A number of comments were received with respect to the decoupling of the definition of hazardous waste and hazardous recyclable material.
An environmental group commented that they do not support the decoupling of the definitions.
The introduction of differential requirement for waste recycling and disposal in the regulations is not supported and we are particularly concerned regarding the very open-ended approach to the definition of "recycling" activities proposed in the regulations.
The European Community questioned this proposal.
"The proposed Regulations use different terminology to that used in the Basel Convention and the OECD Decisions and introduce a distinction between hazardous waste and hazardous recyclable materials which does not correspond to the terminology used in the Basel Convention and OECD Decision. The European Communities would be interested to know the reasons why this distinction is made and what are the implications of this change in terminology for the placing of products on the Canadian market."
A number of industry and association stakeholders supported this distinction but felt that the proposed Regulations did not go far enough to decouple hazardous wastes from hazardous recyclable materials.
In order to achieve both the commitments set out in the Minerals and Metals Policy and directions given in the Action Plan on Climate Change recyclable materials need separate and appropriate regulations.
A separate recycling regime would enhance the ability of generators to recycle and avoid the stigma associated with "toxic waste" perception, and provide for the possibility of simpler processes for control, especially for lower risk recycling. Administrative or subjective barriers still prohibit the recycling of materials by continuing to place barriers to the efficient use of raw materials (as recyclables) by industry (e.g. consider the negative impact on recyclers when required to use a "manifest" with the accompanying waste perception legacy versus the formerly proposed and herein proposed again term "movement control document" for a hazardous recyclable material shipping document). Another option for promoting recycling via a separate regulatory regime is through different tracking requirements.
The hazardous waste management and recycling industries should be addressed by separate regulations, consistent with a risk-based approach.
Response: The proposed Regulations are consistent with both the Basel Convention and the modified conditions of the OECD Decision, which set out similar requirements for the control of both hazardous wastes and hazardous recyclable materials.
Establishing requirements for transboundary movements under one regulatory regime is, therefore, justified for the following reasons:
- it is consistent with Canada's international obligations;
- it avoids the duplication of regulatory regimes;
- it ensures streamlining and integrated policy objectives;
- it minimizes the resources required by both industry and government to implement the regulations;
- it is better aligned with international and provincial approaches; and
- it enhances compliance, safety, and security.
Different requirements are proposed for the control of recyclable materials to promote a sustainable recycling industry in Canada in accordance with the OECD Decision. They include:
- exemptions for specific low-risk recyclable material destined for an authorized recycling facility within the OECD,
- lower insurance requirements; and
- permission to use brokers.
To address the stigma issue raised by industry regarding hazardous recyclable material, the "manifest" used to track movements has been re-named the "movement document". In addition, the Canadian importer or exporter may now sign the movement document on behalf of the foreign exporter or importer if the recyclable or waste is not regulated in the foreign country. This eliminates the regulatory burden on the Canadian industry's foreign counterpart.
Comments and Reply: Delisting
The proposed Regulations should permit the straight de-listing or exemption of specified hazardous recyclable material where a possible hazardous waste is being removed from the environment through recycling, its non-toxic, and where the recycling of materials is being in a manner that will protect the environment and human health. Straight delisting is much simpler rather than PELES which will require additional requirements, time and expenses imposed on the recycler.
A mechanism for generators to delist a listed hazardous waste if it does not exhibit a hazardous characteristic should be included in the proposed Regulation. The characteristics of the material should be the prime mechanism to govern the degree of hazard. The lists can then be used by those companies, primarily small and medium sized, that choose not to test their material, but rely on the lists for classification. This would allow for testing to show that the material is non- hazardous, otherwise, the "lists" would become paramount without analysis, as the generator or receiver would be accepting the hazardous classification of the material in the absence of any other data.
Response: Environment Canada agrees with the recommendation to allow testing of a waste or material to demonstrate that it is no longer hazardous. The proposed Regulations maintain controls for hazardous waste and hazardous recyclable materials that meet the hazardous criteria set out in the proposed definitions.
As indicated above, the proposed regulations exempt specific low-risk recyclable material destined for an authorized recycling facility within the OECD.
Comments and Reply: Definitions
- 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.
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.
Comments and Reply: Content of Notice
- Submission of Notification
- Identification of Facilities
- Notification Requirements
- Confirmation of Notice Information
- Renewal of the Notice
A number of comments were received by both industry and association stakeholders with respect to the notification provisions in the proposed Regulations.
Submission of Notification
Environment Canada should allow for the possibility to submit notification electronically by PDF rather than limiting this to the electronic form established by the Minister.
We believe that Environment Canada should create a form or at least a specific format for the notice.
The regulation should include a sample document and should be made available in electronic form.
The proposed Regulation makes reference to the notice number provided by the Minister. Will the notice reference number given by the Minister be pre-printed on forms as it exists today, or will the Minister provide a series of numbers to use sequentially, or will the Minister provide one number for each transport? What will be the method to obtaining this number?
A separate notice for wastes and recyclable should be provided to truly destigmatize wastes and recyclables.
Response: The proposed Regulations prescribe the information required for the notice. Environment Canada will provide, in its compliance-promotion material, an administrative form that is accessible in electronic format. Since the proposed information requirements are the same for both hazardous waste and hazardous recyclable material, only one form will be made available.
The process for assigning numbers for notices, permits, and movement documents will occur as they do today. Regulatees must contact Environment Canada to obtain these numbers, and they will then be assigned.
Environment Canada agrees with the recommendation that regulatees be permitted to submit notifications electronically, as PDFs. Environment Canada will consider further clarification of this point in its compliance-promotion material.
There is a requirement for facilities to report the number of shipments when submitting the notice to the Minister. In the event that the reporting of the number of shipments is necessary, we would recommend that the field be listed as amendable.
In the amendments section, there is no mention to allow the amendment to change the name or the address of the generator. What happens in this case? Can we ask for an amendment or do we have to complete a new notification? The same can be asked if there is a change in name and ownership of an enterprise that is bought out.
Response: Environment Canada agrees with the recommendation that the "number of shipments" field be listed as amendable. Accordingly, a provision has been included to reflect this in the proposed Regulations.
In the case of a change to the name of the generator, if the change is the result of a purchase of shares, the permit may be amended. If the change is the result of a purchase of assets, however, this results in a change to the legal status of the enterprise. In the latter case, both the notice and contracts would no longer be valid, and a new notification would be required.
Identification of Facilities
While the name and address of the "importer" (for imports into Canada) and "foreign receiver" (for exports from Canada) must be indicated on the notice, this may not be indicative of the actual management location, if the importer is a waste/recyclable material broker.
We suggest that there be a requirement to indicate the involvement of a broker and the actual management location of the waste/recyclable material, which in practice may not even be located in the province of import.
Are any provisions being made for shipments to be identified by their generator site as well as the broker's identity?
It is unclear if contracts have to be in place for all authorized facilities that may manage the waste once exported or imported to the final destination or just the first receiving site. After the first receiver obtains the waste there maybe a multitude of disposal/recycling facilities based on market demand. The regulations should clarify that a contract is only required with the first receiver.
To simplify the administrative burden associated with the notice procedure, yet still providing an equivalent level of environmental protection, there should be a provision allowing for shipment of a waste or recyclable from multiple locations under the same notice.
Response: The name, registration number, address, and contact information must be included in the notification for all authorized facilities involved in the shipping or receiving of the hazardous waste or hazardous recyclable material. This includes the importer and foreign receiver, the exporter and foreign generator, including the shipping sites or the receiving site. In the case where brokers may be allowed, all addresses above must be indicated.
In the case of hazardous recyclable material, the conditions of export and import outline the instances in which a broker may be the exporter or importer of record. In such instances, the same information outlined above must be provided for the exporters, importers, and facilities.
Contracts must be in place for all authorized facilities managing the waste once it has been exported or imported, including final destinations (D13, D14, D17, R12, R13 and R16). This is already a requirement under the current EIHWR and will continue to be required under the proposed Regulations. This may be further clarified in the new compliance-promotion material.
Notification must be specific to a single site, and not to multiple locations. This is necessary in order to be consistent with the notification procedures of the Basel Convention and the OECD Decision.
Under the current regulation, we can list more than one border crossing- the proposed regulation limits this to one. Allowing multiple border crossings in the Notice streamlines the administration without any loss of environmental protection.
Is the customs office required or the port of exit or the port of entry. Do you mean the name of the customs broker? The proposed Regulations should this for clarity.
Better elaboration of the information requirements and intention of data collection, collation and application would help ensure appropriate and useful information is submitted for:
- 6(k)(x), reduction or phase-out options considered and the reason the disposal is taking place outside of Canada,
Our concern is that if the material is classified as a hazardous recyclable in Canada and it is not a hazardous recyclable material in the USA, what notification etc. are required as the definitions are different in the respective countries?
Response: In the case of border crossings, more than one border crossing may be indicated in the notification. For exports, the ports of exit must be indicated; for imports, the ports of entry. The name of the customs office may also be necessary, as some imports may be declared inland (particularly in the case of rail shipments). The proposed Regulations do not define these terms, as they are mandated by the Canada Border Service Agency; however, they may be further clarified in the compliance-promotion material.
The options the regulatee has considered for reducing or phasing out the export of hazardous waste and the reason the final disposal is taking place outside Canada will be required for all exports of hazardous wastes destined for disposal. This notification element is in keeping with the Basel Convention, which requires parties to reduce and dispose of hazardous wastes in their own country before looking to export.
If a waste or recyclable material is considered hazardous in Canada but not in the United States, the Canadian exporter or importer must meet the requirements of the proposed Regulations by submitting a notice to Environment Canada. The movement may only take place once Environment Canada has issued a permit.
Numerous codes required for the notice are not used domestically. Environment Canada should prepare a user's guide to assist exporters and importers. The current guide is useful this way.
Why does the notice have to include the WCO commodity codes (these are only for products), OECD codes, Canada Customs tariff item and statistical suffix?
If all these new codes have to be included, Environment Canada should provide guidance manuals that include all the required codes. There should be clear, detailed instructions, guidance and hot links to required lists, etc. on the TMB website which should be made easier to locate on the Green Lane in order to address the complexity of the information with respect to codes and classification.
Response: Waste classifications are contained in schedules 1-7 and 10 of the proposed Regulations. The codes will be referenced in updated user's guides, and reflect the requirements of the proposed Regulations. The majority of these codes are the same as those required in the current EIHWR. The additional codes include the following:
- Basel or OECD code;
- commodity or HS code;
- Y code (in the existing IWIC); and
- POPs code.
The commodity or HS code is a notification requirement under the revised OECD Decision. While wastes and recyclables are commonly associated with products, they are treated as commodities for the purposes of the World Customs Organization, and therefore require a customs code.
Confirmation of Notice Information
The proposed Regulations require that we certify that all the information is complete and correct. Given the wide variety of the new information requirements, and taking into account the variability of the wastes, it is important to modify the wording from "correct and complete" the most precise possible taking into account the actual information"
Response: It is the responsibility of the Canadian exporter or importer to ensure that the information provided to the Minister is correct and complete. This is also a requirement under both the Basel Convention and the OECD Decision.
Renewal of the Notice
The notice number should not change when there is a renewal of the same waste from the same generator to the same facility. Environment Canada indicated that this will be the case, is it?
Response: Environment Canada is exploring the option of providing the same notice number to exporters and importers from year to year, rather than issuing a new number upon expiry of a permit.
Comments and Reply: Conditions of Export and Import
A number of comments were received from both industry and association stakeholders with respect to the conditions of export and import set out in the proposed Regulations. Industry stakeholders commented that:
An allowance has been made for a 'problem load notification' that is 'imported but not accepted' (Section 12) to occur within five (5) days of arrival. It will be impossible in certain cases to accept the wastes in these 5 days, depending on the type of analysis that is required.
Environment Canada should extend this to 30 days, a more realistic timeline.
Section 8(b) states that if necessary, the exporter will store the hazardous waste/recyclable in a facility authorized to store the waste or material by the authorities of the jurisdiction in which the facility is located. The requirement to locate an available authorized facility in the specific jurisdiction may be difficult. It is also unclear what defines a jurisdiction.
Response: Environment Canada agrees that five days may not be sufficient to undertake the type of analysis required for facilities to accept hazardous wastes or hazardous recyclable materials. As such, this provision has been removed from the proposed Regulations. Typically, the jurisdiction in which the facility is located sets out how long a waste or material may be stored before it must be disposed of or recycled.
Section 16(o)(ii) has been included in the proposed Regulations, since not all facilities are authorized by their jurisdiction to store hazardous wastes or recyclable materials in the event that these materials are not accepted by the receiving site. If the facility is authorized to store the waste or materials, it may do so until an alternate arrangement can be made, as approved by the Minister. The provincial authority authorizes the facility in the case of an import; the competent authority of the country in the case of an export.
Comments and Reply: Movement Document
- Harmonization of the Movement Document with the Province
- Submission to the Minister
- Retention of Movement Document
A number of comments were received by both industry and association stakeholders with respect to the movement document provisions set out in the proposed Regulations.
Harmonization of the Movement Document with the Province
Currently there are no agreements between the federal and provincial governments relieving the requirement of completing two (2) manifests. The negative and unnecessary impact of requiring two separate manifests for every waste movement will be most severe on the Ontario hazardous waste industry. Ontario is the only province that requires the use of a specific hazardous waste manifest (embedded in its regulation). We recommend that Environment Canada resolve this issue (complete harmonization of the manifest) with the Ontario Ministry of Environment and Regulation 347 prior to the implementation of the EIHWR.
Response: Environment Canada agrees with this recommendation, and is proposing a fully harmonized movement document that will meet both provincial and international requirements. The prescribed form will also meet the requirements for shipping documents under the Clear Language TDGR.
Submission to the Minister
We understand that Environment Canada is working on EDI provisions and highly recommend that every effort be made to incorporate the EDI option in the regulations.
There should be a provision for the electronic filing of manifest data and confirmation of disposal/recycling using the secure portal developed for such use and being employed for the Government of Canada Market Place administered by PWGS Canada.
Is it possible to require that the manifest be sent to the province of export if required by the authorities of the province as opposed to the laws of the province?
Sections 9 (8) and 13 (7) require the Exporter and the Importer to provide the same units of measure on the manifest as indicated within the notice. This condition is overly restrictive, as both foreign and Canadian facilities are not all equipped with scales or metering devices. We feel that estimates of volume have to be allowed in some circumstances and that the measurement associated with these estimates may not always match the units indicated on the notice. This requirement creates no environmental benefit and if left unchanged will create non-compliance issues within the industry.
Streamlined manifest procedures for recyclers for shipments from OECD countries (page 693) - The regulations provide no information on how manifest procedures will be streamlined. Environment Canada should at least provide some preliminary concepts on how this will be accomplished in this section.
Response: Environment Canada will allow regulatees to submit movement documents and notices electronically, as PDFs.
Environment Canada is also working toward the electronic transmission of both notices and movement documents, and on developing an electronic interface.
The wording of the proposed Regulations has been modified to require that the movement document be sent to the authorities of the province of export or import, if required.
The same units of measure indicated on the notice must also be used on the movement document. Environment Canada's international agreements prescribe these units as kilograms or litres
Two documents, one for federal requirements and one for provincial/territorial requirements (where applicable), may be required for those portions of the movement of these wastes/materials within Canada. We believe that the federal government along with the provinces and territories should work together to address these documentation concerns.
We would like to point out that the manifest is not bilingual rather two unilingual forms are proposed. Given that the majority of movements is with the U.S. this will result in the strong probability that only the English version will be used. The Regulations should indicate that only one version of the form needs to be completed rather than both the French and English
Retaining the word "manifest" as a descriptor for a hazardous recyclable materials shipping document implies 'waste' due to the legacy of that term whereas application of the formerly proposed "movement control document" terminology would be of appreciable benefit in the optics of differentiating hazardous waste from hazardous recyclable materials.
The form has too much redundancy i.e. duplicates information found on the Notice and the Permit. The redundancy should be eliminated to reduce the additional administrative burden and the manifest should be cross referenced to the Permit that accompanies the manifest. The codes on the manifest are not the same as on the notices. It is necessary to harmonize these codes.
We believe the proposed manifest should contain the quantities shipped and quantities received as in the current manifest.
Response: Environment Canada agrees with the recommendation of working with the provinces and territories to address documentation concerns. Environment Canada is proposing a tracking form that will meet the needs of the Department, provinces, including the Ontario Ministry of Environment, and a shipping document under the TDGR. The form includes the quantities shipped and received (as found in the current manifest), and has been modified to incorporate the additional codes required for transboundary movements. A number of codes found in the notice must also be outlined in the tracking form in order to meet international obligations under both the Basel Convention and the OECD Decision.
Environment Canada agrees with the recommendation to re-name the manifest tracking document the movement document. The revised document, which will be bilingual, will be incorporated into the proposed Regulations.
Section 7(e)(v)(A) requires the foreign receiver to "provide a copy of the manifest to the exporter immediately after accepting" the material. The term immediately is unclear and could be misinterpreted. Would a fax sent to the exporter within several hours meet the criterion or an overnight courier? The language regarding when the manifest must be sent to the exporter should be more clearly defined or removed in context of the five-day time period acceptance criterion. It is recommended to replace the word immediately with the phrase "within 2 working business days" to clarify the responsibility.
Section 9(6) requires exporters to send a copy of the manifest to the Minister within three working days after the hazardous waste or hazardous recyclable material is accepted by the foreign receiver. It is recommended to reword this section to state "within seven working days of receiving a copy of the manifest from the foreign receiver"
Section 15 of the manifest (box referring to "accepted") complicates the Importers' legal defense with respect to acceptance and non-conforming waste (whether banned by Canada, or by company's Certificate, License, etc.). Acceptance is defined as within the industry as deemed to be in compliance with the site's certificate or license, as well as within the terms of the agreed contract. As such, acceptance can only be achieved after an act of validation has taken place. This usually involves testing or detailed inspection - not usually achievable within three (3) days. Receipt is defined as to take or accept (something offered or given) into one's possession. The Oxford definition of this term is applied in the waste management industry as it provides separation from Acceptance and the associated legal ramifications.
Environment Canada should remove the acceptance box in Section 15 of the manifest or extend the time frame [from three (3) days to five (5) days] that is attached to submission to be consistent with Section 12 of the regulation.
The proposed regulation requires that the Exporter "must ensure" that the information required for each carrier and foreign receiver be completed. This places an onus on us, without a corresponding ability for us to control these parties.
Response: The term "immediately" has been dropped from the contract requirements. It will be the responsibility of the exporter or importer to ensure proper procedures are in place to obtain a copy of the movement document from their foreign counterpart and provide it to the Minister within the time set out by the proposed Regulations.
Retention of Movement Document
There is a requirement that the manifests be kept for 3 years. It is recommended to maintain the current requirement for a two year retention period as it is harmonized with the Ontario Regulation 347 and will not cause any confusion or increase the burden on the Ontario industry.
Response: The length of time the movement document must be kept has been changed from two to three years. This is necessary to comply with Canada's international obligations under the OECD Decision, which requires that these documents be kept for three years.
Comments and Reply: Returns and Reroutements
A number of comments were received by both industry and association stakeholders with respect to the return provisions set out in the proposed Regulations.
A provincial stakeholder provided the following comment:
The conditions of export and import allow 90 to undertake the return. By making this requirement applicable to within 90 days of the Minister being advised, are you not advocating not advising the Minister as a means to buy more time to deal with a problem waste. Would better protection not be given by changing this to within 90 days of the waste/recyclable having been refused access to the intended destination instead of 90 days of advising the Minister?
Response: Both the Basel Convention and the OECD Decision set out consistent conditions with respect to returns. In both cases, once the competent authority has been notified of the inability to undertake the intended waste disposal or recycling of material, the return must occur within 90 days.
An association stakeholder provided the following comment.
In the case of a return, section 16 requires the importer that refuses the wastes or recyclables to notify in accordance with s.185(1) of CEPA, 99. This situation is abnormal since the importer is not the generator. The return should be notified only through a letter, which is the case in the current regime.
Response: Part 7, Division 8, of CEPA 1999 provides the authority to import, export, or convey in transit hazardous waste or hazardous recyclable material. In order to return such waste or recyclable material and meet the requirements of CEPA 1999, a new export or import permit must be obtained.
Industry and association stakeholders provided the following comments with respect to the conditions of the returns.
The language of 16(1) is confusing; the importer should be called the original importer so as to differentiate between the original importer and the return importer. Similarly in clause 16(2) the text, for clarity should read "After an export permit is issued, the original importer must".
In the case of the refusal of materials by the importer, the proposed Regulations permit that the wastes or recyclables are to be rerouted to another facility in Canada or returned to the original exporter. To provide a larger degree of flexibility, the proposed Regulations should also allow that wastes or recyclables may be returned to another facility in a country other than Canada, which is actually the case. In certain cases, refused wastes are returned to a different facility in the U.S. rather than the facility from which they were exported, which will no longer be allowed in the proposed Regulations.
According to the proposed Regulations, we may return refused wastes to the authorized facility, once we have received confirmation from the Minister. Will this confirmation be for each return to the same facility or will we have a list mentioning all the authorized facilities? Currently, we get a letter for specific consent to do so.
Is the intent that the authorized carrier on the original import approval must also be the authorized carrier for the return export? It is unreasonable to assume that the authorized carrier for the import will be either available or permitted to carry the rejected waste depending on the reasons for rejection. The text should read "return the hazardous waste or hazardous recyclable material to the facility from which it was originally imported, using the authorized carriers named on the new export permit;"
In many instances of returns, a different border crossing may be used. It will be impossible to use the same border crossing in the case of a return.
With respect to 16(1)(d) the quantity returned does not specify if pounds or kilograms are the units.
Response: Provisions in the proposed Regulations are intended to facilitate returns of waste or recyclable material to the exporting country and the original foreign exporter or Canada and the original exporter, as required under Canada's international agreements. A simplified procedure for obtaining a new permit to re-export or re-import has been incorporated into the proposed Regulations, given that contracts and consent already exist between the original parties. If a waste or recyclable material is to be returned to a facility that is not the original exporter, or a facility outside Canada, a new notification and contract must be submitted to Environment Canada and a new permit obtained.
Once the notification to return a waste or recyclable material has been approved by the Minister, a permit will be issued for the re-export or re-import of the return to the authorized facility named in the permit.
Environment Canada agrees that a return of waste or recyclable material may require the use of new carriers or alternative border crossings that were not listed on the original export or import permit. As such, the proposed Regulations allow additional carriers and border crossings to be included in the notification for the return. The jurisdictional authorities must grant consent that the new carriers are authorized before a new export or import permit will be issued.
The quantity of waste or material to be returned must be reported in the same units of measure as they were in the original export or import permit.
Environment Canada will consider further clarification through compliance-promotion material.
Comments and Reply: Confirmation of Disposal or Recycling
A number of industry, association and provincial stakeholders provided comments with respect to the confirmation of disposal or recycling for wastes and recyclable materials.
A provincial stakeholder provided the following comment:
Is a completed copy of the "manifest" indicating receipt of the shipment an acceptable confirmation, or is a more definitive statement required?
Response: A completed copy of the movement document indicating that the hazardous waste or hazardous recyclable material has been delivered or received by the authorized facility is not sufficient. Rather, the exporter or importer must provide the Minister with written confirmation that the waste has been disposed of or the material recycled. The proposed Regulations do not prescribe the form of the confirmation of disposal or recycling, which may be submitted to the Minister by the exporter or importer in accordance with Section 36.
Prescribed Timing for Disposal or Recycling
Both industry and association stakeholders commented that:
The proposed Regulations provide a timeline for 1 year for the disposal or recycling of wastes or recyclable material. This requirement is likely to have perverse effect on the environment if a company is landfilling rather than recycling because treatment may exceed the time required. It is recommended that a longer time is prescribed. Environment Canada had a three years deadline at one time given during the development process of the proposed Regulation.
Almost all of Canada's exports of hazardous recyclable materials are destined for the US and the US already has laws that address the maximum time that materials can be stored before recycling. The proposed Regulations may unfairly trigger violations by Canadian exporters of Canadian laws for activities that occur more than a year after the materials have been lawfully accepted and are being lawfully stored. The requirement for 1 year should be deleted or qualified.
If material is bulked prior to processing it is difficult to track every molecule. The Regulations need to include language that recognizes that confirmation is based on best estimate that most of the material has been disposed or recycled.
Response: The requirement that the final disposal of waste or recycling of material must take place within one year is a new element of the proposed Regulations, and is consistent with the time limit specified under the OECD Decision. An allowance has been made that interim disposal and recycling operations, including storage, must be completed within 180 days prior to final disposal or recycling. If the disposal or recycling cannot be undertaken in the time-frame prescribed by the proposed Regulations, the exporter or importer may apply to Environment Canada for a permit of equivalent level of environmental safety (PELES) outlining the variance.
Comments and Reply: Low-Risk Recyclables
A number of industry, association and provincial stakeholders provided comments with respect to the confirmation of disposal or recycling for wastes and recyclable materials.
Mechanism to Update Schedule 7
The risk based criteria that were used in the OECD discussions to justify the exclusion of Schedule 7 waste streams should be shared and a process to apply for additions to Schedule 7 should be set out in a guidance document.
A clear process and decision criteria should be developed to enable materials to be listed on this schedule.
Response: Risk-based criteria are found in Appendix 6 of the OECD Decision C(2001) 107/Final, which is available to the public. The Decision outlines the process for assigning wastes destined for recycling in the OECD area to Appendix 3 (not requiring controls) and Appendix 4 (requiring controls) in subpart B. If a member country wishes to apply these risk- based criteria to manage Appendix-4 wastes as Appendix-3 wastes, it must notify the OECD Secretariat of the rationale for this decision. If, however, a member country wishes to assign additional wastes to Appendix 3, it must submit an application to the Basel Convention.
An exemption from EIHWHRMR should be provided for the recyclable material if it can be substituted for a virgin material to encourage resource conservation through recycling. An administrative determination could be a first step, but recyclable materials that directly substitute for virgin materials should be added to Schedule 7 to provide regulatory certainty and transparency.
All low risk materials should be excluded through a clear and simple definition, in order to reduce the administrative and regulatory burdens associated with the acquisition and use of hazardous recyclable materials.
International groups and Environment Canada need to find a way to include valuable, low risk commodity exports to Basel countries in this section 3(2) or the exclusions, otherwise this is discriminatory.
Response: Environment Canada is not proposing to provide a blanket exemption for recyclables. The proposed Regulations are consistent with the OECD Decision.
The revised OECD Decision represents a risk-based approach to determining levels of controls for hazardous recyclable materials, while the Basel Convention takes into account hazard characteristics. Recyclable materials are placed on the Green List of the OECD Decision (not requiring controls) if the possibility exists that they might exhibit a secondary hazard. The OECD has developed a mechanism whereby member countries may apply to have recyclable materials placed on this list.
Revisions to Schedule 7
Consideration should be given to simply adopting the OECD Decision "green list" (OECD Annex IX, List B) by reference in the proposed regulation so that if and when changes are made to the OECD "green list", such hazardous recyclable materials would receive immediate and consistent treatment in any movement between Canada and other OECD countries. It is however noted that many of the OECD "green list" materials (OECD Annex IX, List B) do not receive "green list" status under the proposed Regulations.
Some electronic scrap may not qualify as materials that are in Class 9 due only to leachability and therefore might continue to be regulated as hazardous recyclable material subject to control. EC should review the proposed scope of the exclusion and adopt appropriate changes to ensure that all "low risk" electronic scrap will be excluded from unnecessary regulatory requirements.
Spent PGM catalysts from our refineries should also be exempt (they have some exemptions under US EPA currently). These materials should be included on Schedule 7.
HHW paint should be conditionally exempted as hazardous recyclable material due to its uniqueness.
The proposed definition/regulations do not go far enough in excluding hazardous recyclable materials that are low-risk recyclable materials. The processed/shredded high density polyethylene (HDPE) from used agricultural and industrial pesticide containers is a non-toxic material that is and will be controlled by the regulations.
Response: The materials listed in Schedule 7 are representative of those on the OECD Decision Green List. The Green List was not adopted in its entirety, as a number of materials listed would not necessarily exhibit a hazard, and would therefore be redundant in their application to the proposed Regulations.
A recyclable material that exhibits a hazard other than leachability is not considered low-risk. Such a material could be contaminated by other materials to an extent that increases its risks to human health and the environment. This may render the material appropriate for controls or could prevent its recovery in an environmentally sound manner.
Comments and Reply: Waste-Export Reduction Plans
A number of comments were received by environmental groups, provincial, industry and association stakeholders with respect to the provisions for waste export reduction plans set out in the proposed Regulations.
Application of Plans
A province and a number of environmental group stakeholders commented that:
Waste export reduction plans should equally apply to imports of hazardous waste and should not be limited to exports. In addition the reduction plans should apply to all four streams: exports of both hazardous waste and hazardous recyclable materials and imports of both hazardous wastes and hazardous recyclable materials.
There is also a need to focus on source reduction and pollution prevention rather than hazardous waste recycling.
Industry and association stakeholders commented that:
The Waste Management Industry should not be subjected to Export Reduction Plans. There are several factors that drive the necessity for exports; issues such as national capacity, location (cost effective) as well as maintaining a competitive market place all have an impact on the selection of the disposal facility within the Hazardous Waste Industry. The revisions to the EIHWR should be amended to provide an exemption for hazardous waste management and recycling facilities.
The proposed Regulations do not specifically state that the plans do not apply to recyclables. The regulations should confirm this point; otherwise the impression may be left that the reduction of recyclables could be a goal.
While actual regulatory policy has not yet implemented the CEPA powers to require company plans to reduce or phase out waste exports to the USA, the legislative direction is an underlying concern and potential problem. An efficient and smart regulation policy would resolve this by a clear policy statement supporting continued use of appropriate USA disposal facilities.
We had understood that the requirement under Ref to 188(1) of CEPA calls for 'reduction of export for final disposal' for the purpose of reducing or phasing out of.... hazardous waste or prescribed non-hazardous waste was intended to apply to Persistent Organic Pollutant (per Schedule. 9) only. As described, it could apply to all types of hazardous wastes. The regulation should make clear that only POPs are subject to this requirement.
Response: Section 188(1) of CEPA 1999 provides the Minister with the authority to request an exporter or class of exporters of hazardous waste for final disposal to submit and implement a plan for the purpose of reducing or phasing out the export of the waste. Section 191(g) of CEPA 1999 takes into account the proximity or benefit of using the nearest appropriate disposal facility, and the increased production of goods responsible for generating the hazardous wastes for disposal. The proposed Regulations define the information to be included in such plans.
A number of comments were received by industry and association stakeholders with respect to the content of the plan and the information collection and analysis of the plans.
Content of the Plan
The detail to be provided in a Plan is far more detailed than necessary and could create confidentiality issues. The Plan should be limited to a general description of how waste is generated and what steps are being planned to reduce it and/or its export. Process details should not be required. In addition, subsections 25(1)(f) to 25(1)(j) imposes requirements that are too demanding which are part of market studies and additional costs. Also, subsections 25(1)(g) and 25(1)(f) do not reflect the actual situation of North to South movements. The principle of a sovereign country should not be applied to result in movements across thousands of kilometres to stay in Canada when facilities can be found that are closer in the U.S. This will result in an obstacle to free trade and result in harmful effects to the environment.
The 'plan' requirements for information are noted, but there is no indication of acceptance criteria. These criteria should be developed by Environment Canada.
Response: Environment Canada agrees that some of the proposed provisions may impose requirements that are too demanding. As such, two of these provisions have been replaced with a more practical one. An exporter who submits a plan may ask that it be treated as confidential under CEPA 1999 if it contains confidential information.
Information Collection and Analysis
It is understood that statistical data on transboundary movements will be used to determine who is to be required to prepare a Plan; the statistical conditions that will trigger" a Ministerial requirement to prepare a Plan should be explained in guidance materials.
There is no indication of what Environment Canada will do with this information: Collected for analysis or to set criteria for not allowing exports. Transparency of intent would assist industry in submitting comprehensive as well as useful information.
Response: Environment Canada will notify exporters when they are required to prepare a reduction plan for the export of waste destined for final disposal. Regulatees who have been asked to prepare a plan must submit it before a permit to export will be granted.
Environment Canada anticipates that one of the triggers for requiring export-reduction plans will be based on its review statistics in addition to the notification information of 8(j)(ix), the reduction or phase-out options considered, and the reason the disposal is taking place outside Canada.
Comments and Reply: Environmentally Sound Management
A number of comments were received by environmental groups, provincial, industry and association stakeholders with respect to the environmentally sound management (ESM) criteria set out in the proposed Regulations.
Content of the ESM Criteria
Environmental groups commented that:
The conditions of ESM are far too vague to be enforceable and should include specific environmental performance requirements. The regulations should incorporate specific environmental protection requirements in relation to the disposal and recycling of hazardous wastes, such as those contained inn the Canada-Wide Standards for Dioxins and Furans and Mercury. Similarly, the regulations should incorporate the specific prohibitions on management practices in international environmental agreements to which Canada is a party.
Industry and association stakeholders commented that:
Criteria for ESM are being developed in Canada and international forums. Separate ESM criteria should be developed for disposal and for recycling operations, in partnership with provincial and territorial governments and stakeholders.
A guidance document setting out the 6 OECD/Basel criteria and how EC will interpret them in the federal/provincial context should be prepared and placed on the TMB website.
Response: The criteria in the proposed Regulations are meant to build on the progress that has been made at the international level and to reflect the criteria used by the OECD. The OECD Council adopted the Recommendation on the Environmentally Sound Management of Waste on June 9, 2004.
Environment Canada will consider further clarification through compliance-promotion material.
Application of the ESM Criteria
Industry and association stakeholders commented that:
It is unclear how the Minister will be assured activities are managed in an environmentally sound manner. What controls will be required by the Minister? Will the establishment of a third party EMS system, such as ISO 14001) be sufficient to constitute acceptable ESM criteria for Environment Canada. Whether or not the performance of the facility or facilities handling the waste material is expected to meet or exceed a certain standard in order to protect human health and the environment against adverse effects, is an obligation of a provincial government. Therefore, the ESM criteria should be modified to reflect "in the absence of provincial approval through C of A or license. Or in the absence of provincial approval, the minister may suggest or implement ESM criteria."
It was understood that for waste or recycling facilities in Canada, each Province's operating approval for a facility in Canada should be sufficient. Similarly, for the key importing country, the USA, the PICO requirement through the EPA is sufficient. The application of this requirement for other jurisdictions should be made more specific.
It is questionable to establish ESM criteria in a transportation regulation. In addition, the proposed Regulations will place on obligation for the exporter to certify that the receiver applies the principles of ESM.
Access to exempted recyclable materials listed in Schedule 7 should be limited to recyclers that have demonstrated conformance to specific and rigorous ESM criteria. If a facility has yet to do so then a more rigorous prior informed consent and manifesting procedure should continue to apply to provide assurance to governments and the public that exempted shipments will be subject to environmentally sound management. Environment Canada should establish and maintain a website of Canadian facilities that have demonstrated conformance to ESM criteria and work with the governments of the United States and Mexico to promote mutual recognition of ESM facilities and convergence in ESM criteria.
A provincial government stakeholder commented that:
While there is support for the concept of ESM, it is unclear how the federal government will work with the provincial governments on this issue, especially if in disagreement.
An industry stakeholder commented that:
The proposed Regulation does not preclude Environment Canada from denying an export. If the importing jurisdiction has approved the movement it would be arrogant to deny exporting it. The regulations should be tightened up on this point.
Response: In accordance with Part 7, Division 8, of CEPA 1999, the Minister may refuse to issue a permit to import, export, or transit hazardous waste or hazardous recyclable material if the Minister is of the opinion that the waste or material will not be managed in a manner that protects the environment and human health. These proposed Regulations set out the criteria under which the Minister will make this determination.
In order for the export and import of low-risk recyclable materials, now listed in Schedule 8 not to be subject to the proposed Regulations, the material must be destined for recycling at an authorized facility within the OECD, and must exhibit only leachability.
An industry stakeholder commented that:
The RIAS indicates that the ESM criteria will result in a one-time cost to stakeholders. Is this the case?
Response: The RIAS estimates the costs to industry of complying with the proposed Regulations. Exporters and importers may require an initial investment to verify that they meet the criteria set out in the proposed Regulations and to take corrective measures, where necessary.
Comments and Reply: Permits of Equivalent Level of Environmental Safety
A number of industry and association stakeholders provided comments on Permits of Equivalent Level of Environmental Safety (PELES)
We had understood through the consultations to date that there would be a process introduced for PELES within the regulation. However the allowance for PELES is not apparent in the proposed EIHWR.
If the PELES are to be regulated at the CEPA level, we would like to see a clear guidance or administrative document that details the process and sets out the criteria for 'equivalency'.
Also, permits should be issued with the intent of eventually incorporating the equivalent level of environmental safety into the regulations.
The variance provision or PELES is not visible within the regulation. Can we apply for conditional exclusions through PELES?
Provisions for closed-loop recycling were not provided. TMB should provide guidelines for the submission of a PELES application for the exclusion of specific closed-loop recycling activities.
Response: Section 190 of CEPA 1999 authorizes the issuance of permits of equivalent level of environmental safety (PELES), which may continue to be used to address variances to the proposed Regulations. Environment Canada will consider addressing these permits further in compliance-promotion material.
Comments and Reply: Public Access to Information and Decision Making
Both environmental groups and an industry stakeholder provided comments with respect to public access to information and decision making.
An environmental group commented that:
Environment Canada current practices of publishing the aggregate content of notices after waste movements have occurred is inconsistent with the intent of s. 187 of CEPA 1999. Notices of proposed waste movements should be published, in full, in the CEPA registry, with opportunities for public comment before waste movements are authorized. The information contained in notices, waste manifests and certificates of disposal/recycling should be posted in a publicly accessible database, with mechanisms for user designed data searches and analyses.
An industry stakeholder commented that:
In regards to access to information, it is necessary to protect all the information that relates to a commercial nature.
Response: Section 187 of CEPA 1999 requires the name of the person notifying of an export, import, or transit; the name or specification of the waste or recyclable material; and the country of destination or origin be published in The Canada Gazette, or by any other means the Minister considers appropriate. Environment Canada is considering reviewing the level of information that is publicly accessible.
Comments and Reply: Schedule 2 - Recycling Operations for Hazardous Recyclable Materials
Two comments were received with respect to the recycling operations set out in Schedule 2 of the proposed Regulations.
R4 should say "secondary recovery of metals and metal compounds". Primary processing is distinct and offers considerable benefits for recycling.
Is there is a minimum percentage threshold associated with the amount of "waste- derived" material managed at the recycling operations listed in Schedule 2 in order for the material (and its management) to qualify as a hazardous recyclable material? For example, would a primary smelter processing a feed stream consisting of 10 per cent waste-derived material qualify as an R4 operation or would the use of waste oil in the manufacture of pavement qualify as an R9 operation?
Response: The recycling operations set out in the proposed Regulations, including R4, are consistent with those of both the Basel Convention and the OECD Decision. If a hazardous recyclable material is intended to be exported or imported using an operation set out in Schedule 2 of the proposed Regulations, it may be subject to regulatory controls.
Comments and Reply: Schedule 3
- Biomedical Waste
- Used Oil
- Used Oil-Filters
A number of industry, association and provincial stakeholders provided comments with respect to the items set out in Schedule 3.
Provincial and industry stakeholders commented that the definition of biomedical waste should be further clarified.
There is no threshold related to the level of contamination for materials that have been in contact with blood or bodily fluids. The words "saturated or dripping" as per the CCME definition, or similar wording in concept, should be incorporated into the EIHWHRMR definition.
For the purposes of clarification, cytotoxic wastes should be included in a sub-class under biomedical waste.
There does not appear to be any restriction associated with the presence of certain micro-organisms for animal waste to qualify as biomedical waste (in the case of animal infectious substances). The definition suggests that any animal waste is biomedical waste, including the routine waste generated from slaughterhouses.
With the seeming resurgence of highly infectious agents e.g. SARS, necrotizing fasciitis (flesh eating disease), a closer analysis of defining and handling of biomedical waste may be in order.
There also do not appear to be exemptions for biomedical waste generated by households, or "treated" biomedical waste, where the term "treated" is used in the context of treatment approved by the relevant authority (provincial, territorial, state, federal as appropriate).
How would TDGR regulated medical waste be classified using this definition? Would the UN2814 classification or the HAZ 1 classification include infectious waste? Using the UN3291 definition and classification would simplify things a great deal since Transport Canada only regulates infectious substances that are classified as UN2814 or UN2900 while the Provinces tend to use the CCME definition or something more specific like Ontario.
Response: Environment Canada has further clarified the definition of biomedical waste. Provisions have been incorporated to restrict the definition to waste that is saturated with blood or bodily fluids. In addition, cytotoxic wastes have been clarified as a sub-class of the definition, consistent with the approach taken by some provinces and territories, including Ontario and British Columbia. The definition has also been clarified to control solid animal-wastes only if infected or suspected to be infected with Risk Groups 3 or 4 under the TDGR.
The definition of hazardous waste excludes waste generated by households.
The UN Pin Number set out in the TDGR must be included in the notification, as applicable.
Provincial and industry stakeholders commented on the proposed definition of used oil, and some stakeholders requested further clarification.
With respect to the definition of used lubricating oils industry and provincial stakeholders commented that:
What is the basis for the 500 litre quantity threshold in the EIHWHRMR? BC regulates waste oil as hazardous waste in quantities exceeding 5 litres, and requires the use of a manifest for the transportation of quantities of waste oil exceeding 210 litres (approx. 1 drum) and requires generators and those storing waste oil to register with the ministry if the quantities generated (within 30 days) or stored at any time exceed 5,000 litres.
The column 2 description of HAZ2 does not specifically include oils used in heat transfer systems. We request clarification that oils used in these systems are included in the description; we believe used lube oil is required to be listed as a hazardous material.
The proposal to list used lubricating oils as a regulated material will result in a significant increase in the quantity of material tracked by Environment Canada.
The description of used lubricating oil should be modified to be consistent with language developed by used oil stewardship programs across Canada.
"Used lubricating Oil in quantities of 500 L or more and a concentration of 50% or more that includes petroleum-derived or synthetic crankcase oils, engine oil, hydraulic fluid, transmission fluid, gear oil, heat transfer fluid or other oil or fluid used for lubricating machinery or equipment."
At a 50% concentration, there would be an economic deterrent to dilute the used oil to avert the Regulations and then once shipped across the border to have to remove the water prior to using oil as fuel in burners without pollution controls.
Environment Canada is proposing to list used oil as a CEPA toxic because it contains contaminants that are harmful to human health and the environment. Controlling the export or import permits would prevent raw used oil from being burned prior to removing contaminants.
Hazard classes should be assigned to this waste stream and testing out should be feasible
Response: Used oils typically contain quantities of hazardous substances that can pose a risk to the environment and human health. Accordingly, these proposed Regulations set out controls for the export, import, and transit of used oils intended for disposal or recycling.
The threshold quantity at which used oil is controlled was established through public consultation and in collaboration with the provinces and territories. This threshold was set at a 500 L to ensure that transboundary movements of used oil resulting from farming operations or personal uses would not be subject to the proposed Regulations. A concentration has not been included, as this listing is designed to capture used oils rather than oily wastewater, which may be subject to the proposed Regulations if it exhibits a hazard.
The listing of used oil in the proposed Regulations does not preclude their export or import, provided the person intending to undertake the transboundary movement notifies and receives a permit from Environment Canada.
Environmentally Sound Management and Issuance of Permits
An industry and association stakeholder commented that ESM criteria should be used to ensure that used oils will be managed in an environmentally sound method prior to the issuance of an export or import permit.
Environment Canada should adopt the Basel Convention Draft Technical Guidelines on Used Oil which states the "first option in the waste management hierarchy is to conserve the original properties of the oil allowing for direct re-use. The second option is to recover its heating value. Re-refining could be seen as one of the preferred methods of disposal of used oil" and require persons submitting a notice to export used oil apply the technical considerations and indicate how they have addressed the availability of R9 methods as a condition of the notice for review.
For used oil intended to be exported for energy recovery (R1), the exporter must demonstrate in the notice that the used oil meets the detailed requirements of ASTM D6448-99 Standard Specification for Industrial Burner Fuels from Used Lubrication Oils. We request that the DOE adopt this ASTM standard specification for industrial burner fuel from used lubricating oil.
Under the principles of ESM Environment Canada should consider all notices for the export of used oil for R1 activities only after considering the R9 capability in Canada and the exporter must identify and report that the used oil will go to an identified "authorized facility" that meets the ESM criteria as described in the Regulations.
To ensure that used oils exported or imported are managed using ESM principles, Environment Canada should not issue permits unless the used oil is intended to be re-refined (R9) or prior to being used for energy recovery (R1) it is processed into fuels that meet the industry standard such as the Canadian General Standards Board standard for residual fuels, fuel oil, heating.
Response: The proposed Regulations are consistent with both the Basel Convention and the OECD Decision, which specify R1 and R9 as acceptable recycling operations.
With respect to used oil filters, industry and provincial stakeholders commented that:
What is the basis for the 6 per cent oil content threshold for used oil filters? BC regulates waste oil filters containing more than 3 per cent of oil by mass as hazardous waste, although historically has provided limited, specific regulatory exemptions for processed filters (i.e.: crushed and drained) containing up to 6 per cent oil by mass.
Used oil filters should be removed from Schedule 3 as this waste would be subject to the EIHWR as a potential leachable toxic waste for which testing would be required.
Response: Used oil-filters typically contain quantities of hazardous substances that can pose a risk to the environment and human health. The proposed listing is consistent with the results of public consultations, which included provinces and territories.
With respect to spent glycols, industry and provincial stakeholders commented that:
Some provinces do not currently regulate spent cooling fluids and glycols as hazardous waste unless the material is a waste dangerous good, exhibits the leachate toxicity characteristic or other hazard characteristic. Designating this waste stream as hazardous in the federal export/import regulations will create an inconsistency between the federal and BC regulations.
We agree that glycol does not require new controls.
Industry does not believe that glycols require control since they do not exhibit a hazard.
Glycols used in the de-icing process be prevented from entering the environment, recycled where appropriate and exported as hazardous waste for final disposal.
Response: Environment Canada agrees that glycols do not require controls for the purpose of the proposed EIHWR, since they do not typically exhibit a hazard. As such, this listing has been removed from the proposed Regulations.
Comments and Reply: Schedule 4
Provincial and industry stakeholders provided comments with respect to Schedule 4 of the proposed Regulations.
These lists appear to be very similar to EPA and Ontario lists. For the ease of use, the codes used should at least be cross-referenced to EPA and Ontario codes.
This listing should provide waste classes used by the EPA.
Response: Environment Canada agrees that the lists in Schedule 4 should be harmonized to the extent possible, including with those of the Ontario MOE and the U.S. EPA. Accordingly, the lists have been re-coded.
The waste classes used by the U.S. EPA are similar to those used by the proposed Regulations; however, they are not exactly the same. Therefore, it would be inappropriate to include the U.S. waste classes in the proposed Regulations. Environment Canada will consider further clarification through compliance-promotion material.
Comments and Reply: Schedule 5
Provincial and industry stakeholders provided comments with respect to Schedule 4 of the proposed Regulations.
It appears that Schedule 5 is similar and identical to Appendix 4 in TDGR. The EIHWR should reference the TDGR schedule to prevent confusion instead of providing a separate Schedule.
There are differences between Leachate Substances in the proposed Regulations, TDGR, and Ontario Regulation 347. There are 2 different Hazardous Constituent Codes No. for Chloroform/Trihalomethanes and Dichloromethane/Methylene Choride, only 1 code should be sued for each of these constituents. There are hazardous constituents not included in TDGR. Environment Canada should consult with Transport Canada and with the Ontario Ministry of the Environment and other provinces to finalize a harmonized list.
The regulatory limit of 0.00015 mg/L total mass in the TCLP under Code No. L100 may be incorrect. This should be 0.0000015 mg/L TEQ.
Response: During consultations, stakeholders recommended that cross-referencing other regulations be kept at a minimum. In addition, Amendment 6 to the TDGR proposes that Appendix 4 (and 5) of Part 2 of the TDGR be dropped. Schedule 5 will, therefore, remain in the proposed Regulations.
Environment Canada agrees that the lists in Schedule 5 of the proposed Regulations should be harmonized. The lists have been re-coded to be harmonized with those used by the Ontario MOE and the U.S. EPA.
During consultations, Environment Canada proposed to update the current hazardous constituents related to the TCLP. These constituents and the regulated limits were determined following work with the provinces and territories.
Environment Canada agrees that there was a transcription error in L100 of Schedule 5. This has been corrected to refer to 0.0000015 mg/L TEQ.
Comments and Reply: Schedule 6
Provincial and industry stakeholders provided comments with respect to Schedule 6 of the proposed Regulations.
Schedule 6 would appear to apply to any land disposal of a long list of chemicals. No Concentration Limits Are Included. If these lists are meant for pure chemical streams (like the EPA P&U lists or Alberta Discarded Commercial Chemical lists), then their application in this context should be made clear.
Environment Canada's stated objectives (Senes Report) were to introduce P and U for possible regulation creation with the intended purpose of managing landfill practice in Canada. Waste lists for this purpose should harmonize with those in Ontario's Regulation 347.
There is no justification for singling out energy recovery (R1) as a reason for classifying recyclable materials under Schedule 6. This is a valid form of recycling in controlled situations, as permitted by provincial jurisdictions.
Response: Environment Canada agrees that the application of Schedule 6 should be harmonized. Schedule 6 applies to chemicals that are unused and that are either pure or the only active ingredient. In addition, the applicability of the disposal and recycling codes has been clarified to improve harmonization with the provinces and territories and the U.S EPA.
Comments and Reply: Persistent Organic Pollutants
An environmental group stakeholder commented:
The proposed regulations also fail to incorporate a ban on the import of export of persistent organic pollutants for recovery, reclamation, recycling, reuse or alternative uses as required under the Stockholm Convention (Art. 6(1)(d)(iii).
One industry stakeholder commented that:
How much work has been done to evaluate the impact and the feasibility of requiring the quantity and concentration of POPs?
A number of industry stakeholders commented that:
Triggers for the declaration of Schedule 9 POPs should be set so that they are consistent with those being used by the Stockholm Convention, e.g. set the trigger for PCBs at 50ppm.
Response: This information is required in order for Canada to meet its obligations under the Stockholm Convention. The management of waste POPs is a joint effort involving the secretariats of both the Stockholm and Basel conventions.
Environment Canada agrees that triggers should be set for the declaration of Schedule 10 POPs. The levels set out under the proposed Regulations are consistent with the low POP content being used under the Basel Convention's "General technical guidelines for the environmentally sound management of wastes consisting of, containing or contaminated with persistent organic pollutants (POPs)".
Comments and Reply: Vanadium Pentoxide
A number of industry and association stakeholders comment with respect to the listing of vanadium pentoxide set out in Appendix 5 of the TDGR and the incorporation of this listing by reference.
The proposed regulation references Clear Language TDGR subparagraph 2.43(b) (v). This subparagraph references Appendix 5 of the TDGR. Appendix 5: Environmentally Hazardous Substances Intended for Disposal lists vanadium pentoxide without qualification. It should list "vanadium pentoxide non fused form" as it did in the prior version of the regulation. The omission is an error that is not serious in the TDGR because it is clarified in Schedule 1: Dangerous Goods by UN Number where vanadium pentoxide (UN 2862) is cited correctly. The proposed regulation does not have this secondary qualification. The proposed regulation needs revision to ensure the transcription error does not affect the classification of materials.
Response: Environment Canada agrees with this recommendation. Rather than incorporate Appendix 5, Part 2, of the TDGR by reference, this schedule will be included in the proposed Regulations and the listing clarified to specify "vanadium pentoxide, non-fused form".
Comments and Reply: Treated Wood
A number of industry and association stakeholders commented on the proposed listing of treated wood in the proposed Regulations. These stakeholders requested that treated wood be removed from Schedule 3 and commented that:
There is No Scientific Basis for Classifying Treated Wood as a Hazardous Waste and Hazardous Recyclable Material - To the contrary, numerous studies show that treated wood can be safely and responsibly disposed of in non-hazardous landfills or recycled for energy and other purposes.
The Proposal Would Impose Extraordinary Costs on Industry and the Canadian Public. - One of the stated purposes of the proposal is to harmonize the definitions of the transboundary waste regulations with the interprovincial regulations being developed for hazardous waste and hazardous recyclable materials. There are some 1.13 billion cubic feet of treated wood in use in Canada. If post-use treated wood is designated as hazardous, the cost of disposal could exceed $5 billion, according to a recent estimate by the Canadian Institute of Treated Wood.
The Proposal Will Foreclose Practical and Environmentally Protective Management Options for Out-of-Service Treated Wood - Waste disposal facilities in the U.S. will likely discontinue accepting Canadian treated wood if it is classified as hazardous. Thus, such a designation would severely limit existing and future management options for post-use treated wood.
The Proposed Regulations Undermine the Efforts of the Wood Preservation Strategic Options Process - The proposed classification of post-use treated wood as a hazardous waste would likely severely undermine the implementation of a comprehensive cradle-to-grave management system for treated wood, that is being jointly developed by industry and the Canadian government under the Strategic Options Process ("SOP").
The Proposal Will Compromise Canada's Ability to Export Municipal Solid Waste to the U.S. - Because there is no feasible method of segregating treated wood from the considerable quantity of municipal solid waste ("MSW") exported from Canada to the U.S. each year, the classification of treated wood as hazardous waste would likely lead to U.S. restrictions on Canadian shipments of MSW.
The Proposed Designation of Treated Wood as a Hazardous Waste is Contrary to Sound Logic - The proposed HAZ6 listing for treated wood which is stored or disposed of by release to land or water is illogical, because it would apply specifically to wood that contains a preservative that the Pest Management Regulatory Agency ("PMRA") has reviewed and expressly approved for use on land, in water, and for storage.
Classifying Post-use Treated Wood as Hazardous Would Be Contrary to the Stated Objectives of the Proposed Regulations - The designation of treated wood as hazardous would clearly contradict the regulations' stated objective of ensuring compatibility with controls in the U.S., because the U.S. does not consider treated wood to be hazardous for purposes of disposal or recycling.
The Proposal is Inconsistent With Basel - The proposed designation of treated wood as hazardous is clearly inconsistent with the Basel Convention, which expressly exempts treated wood from listing as a presumptively hazardous waste.
The Designation of Treated Wood as a Hazardous Recyclable Material is Not Mandated by OECD Council Decision C(2001) 107/Final - The listing of treated wood as an Amber waste under OECD Council Decision C(2001) 107/Final does not justify its designation as a hazardous waste, given that most of the other Amber wastes are not listed as hazardous in the proposed regulations.
Application of the Schedule 5 Regulatory Limits to Treated Wood is Improper - It is necessary for the regulations to expressly provide that treated wood is not subject to the TCLP criteria of Schedule 5, which would be inconsistent with TDG Plain Language Regulations, which exempt treated wood products from the scope of the TDGs, including the leachate criteria.
Regarding item 6 in the schedule, BC does not currently regulate waste wood products treated with wood preservatives or wood protection products registered under the Pest Control Products Act (Canada). Designating this waste stream as hazardous in the federal export/import regulations will create an inconsistency between the federal and BC regulations.
Response: Treated wood destined for disposal or recycling is specifically listed in Schedule III of the current EIHWR. This is consistent with international agreements, as treated wood is listed under the OECD Decision, and can require control under the Basel Convention if it exhibits a hazard. Treated wood typically exhibits secondary hazards, such as environmental hazards (contaminated with listed environmental hazards at concentrations above 100 ppm) and, in some cases, leachate toxicity.
In CGI, Environment Canada proposed to regulate wood treated with a pest-control product registered under the Pest Control Products Act to clarify the current regulatory obligation.
Environment Canada agrees that this listing was broader in scope, and has removed treated wood from Schedule 3 of the proposed Regulations. Treated wood will be controlled under the proposed Regulations when it exhibits a hazardous characteristic as per the general definition of hazardous waste or hazardous recyclable material. This maintains the status quo with regard to the current EIHWR, and will not result in any additional costs.
Environment Canada is working with industry to develop compliance-promotion material to clarify regulatory obligations that may be associated with treated wood.
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.
Comments and Reply: Interprovincial Comments
A number of stakeholders had comments with respect to theInterprovincial Movement of Hazardous Wastes Regulations and any modifications to those Regulations that may occur as a result of the proposed Regulations.
Because of the change in manifest in this proposed regulation, the IMHWR will have to be amended to maintain the requirement for the manifest that has been in use since 1985 across Canada. This is an additional future cost to the industry-not disclosed in the Regulatory Impact Analysis Assessment).
Definition of Hazardous Waste and Hazardous Recyclable Material
The following comments assume that this definition will be adopted for the IMHWR as a change in definition might trigger NAFTA challenges.
- How is the addition of a new quantity number for mercury going to affect the management of traps for dental amalgam? Why has this number been introduced in this particular regulation at this time? How will this number affect the transport of normal household waste as any one "garbage truck" traveling between Canada-US could have in its total load a few thermostats or thermometers or other items that could trigger the 50 ml limit? For that matter, how will any normal "garbage truck" ensure that the total limit of 5 kg or 5 L is not exceeded now that you have removed the waste that are household in origin exemption? Since it is customary for the general public to always lobby for the more stringent regulations to be adopted provincially, how will HHW be managed if the exemption is taken away? Most homeowners making a trip to the HHW depot carry more than 5 kg or 5 L? Environment Canada has expressed a fear that there is or would be abuse of the exemption for waste that are household in origin. Since provinces are deal with waste handlers directly, were the provincial authorities consulted before removing this exemption? Why has years of input from hazardous waste managers at the provincial level been totally ignored in this decision to remove the exemption for household waste?
- What has happened to the exemption for chrome (blue) trimmings waste from leather tanning and finishing industry? This exemption has received the support of all of the provinces and was to be included in this regulation as per the public consultation documentation distributed previously. Why is it not in this regulation?
The lists in Schedules 3 to 6 appear to have been derived from the TDGR and the U.S. RCRA. There will be some challenges if these lists are used for the Interprovincial Regulations. TMB should ensure that the tables are structured so that only one code is required for any one constituent as there are overlaps, duplications and differences.
In previous consultations about EIHWHRMR reference to the definition was always made in the context of the Interprovincial Movement of Hazardous Waste Regulation (IMHWR) and there was in fact very little discussion during the information workshops about the new definition of waste and its potential impact on the regulated community. If consultation about the definition of hazardous waste is to be at all meaningful, Environment Canada should be ready to suspend the work with EIHWHRMR and put forward the definition in the IMHWR as originally proposed.
One of the stated purposes of the proposal is to harmonize the definitions of the transboundary waste regulations with the interprovincial regulations being developed for hazardous waste and hazardous recyclable materials. There are some 1.13 billion cubic feet of treated wood in use in Canada. If post-use treated wood is designated as hazardous, the cost of disposal could exceed $5 billion, according to a recent estimate by the Canadian Institute of Treated Wood.
With regard to the inclusion of treated wood in Schedule 3, there is considerable concern that by listing and/or defining treated wood as a hazardous waste or recyclable the definition may be applied within other Federal or Provincial legislation.
Response: Environment Canada will take these comments into consideration when addressing the Interprovincial Movement of Hazardous Waste Regulations.
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