Suggested Amendments to the Export and Import of Hazardous Waste Regulations (EIHWR) - National Stakeholder Consultations Summary Report

• 9.1 Environment Canada's Proposals
  • 9.1.1 Clarifying The Scope Of Application Of The New Regulations
  • 9.1.2 Differentiated Controls
  • 9.1.3 Controls For Low Risk Hazardous Recyclable Materials
• 9.2 Comments

9.1 Environment Canada's Proposals

A key objective identified by Environment Canada is to develop a regime that allows Environment Canada to track shipments and ensure the environmentally sound management of hazardous recyclable materials in a way that promotes recycling over disposal. The development of this new regime has raised a number of difficult issues.

9.1.1 Clarifying The Scope Of Application Of The New Regulations

The first issue has to do with defining which shipments of recyclable materials should be covered by the regulations. This turns in part on what is considered a "recyclable material" as opposed to a product and in part on the definition of "hazardous."

As discussed above, the Department intends to clarify the waste/recyclable versus product issue through the publication of a guidance document. The overall approach to determining what is "hazardous" should be more straightforward than is the case under the current regulations because of the new listing regime described above. In addition, Environment Canada is considering a supplemental listing to clarify the new regulations' application to various specific streams of concerns, such as certain types of electronic waste and treated wood.

9.1.2 Differentiated Controls

Environment Canada proposes a separate regime for shipments of recyclable materials among OECD countries consistent with the OECD decision. This regime will provide enhanced flexibility while retaining the core elements of the basic control regime required to manage risks effectively and to comply with international obligations. The new regime will reflect the provisions concerning hazardous recyclable materials in OECD Decision C(2001)107 and the Canada-USA Agreement.

The proposed regime for hazardous recyclable materials will contain the following key changes from the Full Controls regime described above:

• Special provision for movement documents for imports of recyclable materials from OECD countries. Where the country of export does not require generators or shippers of the recyclable materials being shipped to obtain a permit or complete a movement document, the new regulations will stipulate that the movement document must accompany the shipment only once it crosses the Canadian border. This will ensure that all shipments of hazardous recyclable materials coming into Canada will be accompanied by a movement document, but will reduce the added burden imposed solely by Canadian law on foreign exporters where the material is not considered hazardous in the country of export.
• Single notice for multiple shipments.Authorizing a single notice to cover multiple shipments will reduce the administrative burden of compliance with the regulations.
• Environment Canada is also considering a mechanism for authorizing a single notice for shipments of same recyclable material from multiple sources. This would reduce costs for facilities that are recycling a similar set of materials from multiple sources. It also would enable applicants to obtain permits for pick-ups from multiple facilities, which should facilitate the emerging efforts to encourage retailers and others to pool their collective efforts to take-back and recycle materials such as batteries and mercury switches and thermometers. In many cases, these activities are only economically viable if the participants are allowed to pool their activities through the use of an agent who collects from multiple facilities. Environment Canada may use the PELES mechanism to enable this (see section 10).
• Pre-authorization and tacit consent. The new regulations will retain the existing provision authorizing the Minister to presume the consent of the receiving jurisdiction if a negative notice is not sent within 30 days. The new regulations also will authorize such "tacit consent" within 7 days for shipments going to pre-authorized facilities. Environment Canada is in the process of negotiating with the provinces to promote wider use of pre-authorization.
• Pre-authorization and 3-year permit. Permits issued under the recyclable materials regime may be valid for up to one year for non pre-authorized facilities, and for up to three years for pre-authorized facilities.
• Finally, the new regulations may allow persons to extend the default one-year time for initiating "final recycling operations." Some material collected for recycling may not enter recycling operations for over a year due to commercial or process-related factors. This authority will be carefully circumscribed. The maximum three-year limit will prevent abuses where material is shipped as a recyclable but stored indefinitely.

9.1.3 Controls For Low Risk Hazardous Recyclable Materials

In addition to the streamlining proposed above, recycling stakeholders have requested that Environment Canada re-examine the controls for specific, low risk hazardous recyclable materials, such as electronic scrap imported to environmentally sound recycling operations.

Although Canada's international obligations to control hazardous recyclable materials are quite stringent, Environment Canada explained that it is carefully examining them to identify opportunities for flexibility. To the extent that such flexibility exists, the Department may propose further modifications to the controls, especially for movements of hazardous recyclable materials within the OECD.

Environment Canada strongly supports the promotion of environmentally sound recycling over disposal. However, in addition to continuing to comply with Canada's international obligations, Environment Canada's major concern in making any significant changes to the scope and controls for hazardous recyclable materials is the risk of sham recycling and export to non-environmentally sound operations, especially in developing countries.

There are two possible mechanisms that could be used to implement modified controls:

1. Specific exemptions within the regulations.This approach would provide clarity and would be preferred by those stakeholders who do not want their materials subject to controls. However, this mechanism is not very flexible, as it would require specific regulatory provisions tailored to each particular recyclable material being exempted. At the same time, there is a risk that a broad exemption would be inappropriately used by persons not operating in an environmentally sound manner. Monitoring such non-compliance would be difficult if the company is operating outside the scope of the known regulated community.
2. Case-by-case variances. This would involve using the authority under Section 190 of CEPA 1999 to issue a permit of equivalent level of environmental safety (PELES - see section 10) to provide variances for low risk hazardous recyclable materials on a case-by-case basis, using strict environmentally sound management criteria. This would provide significant flexibility, as such variances could be issued at any time after the entry into force of the regulations and could establish conditions for individual situations. Because such variances would only be issued to specific exporters or importers based on environmental considerations, monitoring compliance with the modified controls would be significantly easier than with a regulatory exemption. This approach would require a highly transparent process to allow stakeholder input as an alternative to regulatory consultations. This approach would require building confidence with stakeholders that it will provide the necessary flexibility while ensuring environmental protection.

During the consultations, Environment Canada expressed support for the second approach whereby the regulations will not differentiate among categories of hazardous recyclable materials, but will authorize the use of the PELES authority to provide variances for hazardous recyclable materials that represent a low risk of harm to the environment and human health, if managed in an environmentally sound manner.

Such PELES applications will be assessed on their merits. Applicants may wish to demonstrate that the proposed variance would meet environmental objective beyond the basic requirement of the proposed regulations for all shipments. Environment Canada is examining this model as a means to promote extended producer responsibility. Both international environmental and trade obligations must be considered in issuing such variances.

Departmental officials acknowledged that further discussion of this approach and specific examples of its use will be required prior to entry into force of the new regulations.

9.2 Comments

The following points summarize the reaction of participants to Environment Canada's proposals:

• Some industry stakeholders proposed a tiered approach with normal commercial controls for "low risk" recyclable materials (i.e. do not exhibit hazardous characteristics), appropriate controls (i.e. OECD) for recyclable materials that exhibit hazard characteristics, and full controls for high risk problematic hazardous recyclable materials.
• While most stakeholders agreed that there should be differential controls for hazardous wastes and recyclables, some participants expressed concern over the reduction of controls for recyclable materials. It was suggested that all materials exhibiting hazardous characteristics be subject to control requirements, regardless of their classification (i.e. whether they are defined as a "waste" or a "recyclable"). The point of contention was over the application of the leachate test.
• Although Environment Canada has developed criteria and guidance materials to assist with the classification of materials, several participants expressed concerns over the subjectivity of the classification process. Stakeholders expressed doubt over the defensibility of their determinations, and suggested that the "Waste -- No Waste" Guidelines be enhanced to assist industry in correctly classifying their materials. With the current Guidelines, the same material could be defined as both a product and a recyclable.
• To alleviate some stakeholder concerns, the Department suggested that applicants who are uncertain of proper classification contact Environment Canada for further clarification and final determination.

As the risks associated with low risk recyclables are specific to the unique circumstances surrounding the production, transport and processing of these materials, Environment Canada proposed to examine low risk recyclables on a case-by-case basis. The following comments were provided concerning "low risk recyclable materials":

• In determining the control regime for these materials, the Department must maintain a consistent and fair approach. The requirements associated with a specific low risk recyclable should be based on well-established assessment criteria, and should be consistent with federal, provincial and international requirements.
• Some stakeholders suggested that reduced controls be developed for classes of materials directly in the regulations, rather than on a case-by-case basis.
• Because the mismanagement of low risk recyclables can result in significant environmental damage, some stakeholders suggested that Environment Canada err on the side of caution when establishing controls for this class of materials.