EXTRA Vol. 136, No. 11

Canada Gazette Part II

Registration
SOR/2002-301 8 August, 2002

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Interprovincial Movement of Hazardous Waste Regulations

P.C. 2002-1394 8 August, 2002

Whereas, pursuant to subsection 332(1) of the Canadian Environmental Protection Act, 1999 (see footnote a) , the Minister of the Environment published in the Canada Gazette, Part I, on April 20, 2002, a copy of the proposed Interprovincial Movement of Hazardous Waste Regulations, substantially in the form set out in the annexed Regulations, and persons were given an opportunity to file comments with respect to the Regulations or a notice of objection requesting that a board of review be established and stating the reasons for the objection;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to section 191 of the Canadian Environmental Protection Act, 1999 (see footnote b) , hereby makes the annexed Interprovincial Movement of Hazardous Waste Regulations.

INTERPROVINCIAL MOVEMENT OF HAZARDOUS WASTE REGULATIONS

INTERPRETATION

1. The definitions in this section apply in these Regulations.

"authorized carrier" means a carrier that is authorized under the laws of Canada or of a province to transport hazardous waste. (transporteur agréé)

"consignee" means the person to whom hazardous waste is being or is intended to be transported. (destinataire)

"consignor" means a person who has possession of hazardous waste immediately before it is transported. (expéditeur)

"hazardous waste" means a product, substance or organism that is

(a) included in any of Classes 2 to 6 and 8 of the Transportation of Dangerous Goods Regulations, or in Class 9 of those Regulations as if a reference to "disposal" in subparagraphs 2.43(b)(iv) and (v) means "disposal or recycling";

(b) intended for disposal or recycling, including storage prior to disposal or recycling; and

(c) is neither household in origin, nor returned directly to a manufacturer or supplier of the product, substance or organism for reprocessing, repackaging or resale for any reason, including that the product, substance or organism is

• (i) defective or otherwise not usable for its original purpose, or
  (ii) in surplus quantities but still usable for its original purpose. (déchets dangereux)

"manifest" means the manifest set out in Form 3 of Schedule II to the Export and Import of Hazardous Wastes Regulations. (manifeste)

"recycling" means an operation listed in Part II of Schedule I to the Export and Import of Hazardous Wastes Regulations. (recyclage)

APPLICATION

2. These Regulations apply with respect to all transport within Canada of hazardous waste that is

(a) a solid in a quantity of 5 kg or more;

(b) liquid in a quantity of 5 L or more; or

(c) a liquid or a solid, or a mixture of liquids and solids, in a quantity of 500 grams or more that contains PCBs described in item 1 of the List of Toxic Substances in Schedule 1 to the Canadian Environmental Protection Act, 1999 in a concentration greater than 50 mg/kg.

MANIFEST REQUIREMENTS

3. (1) No person shall transport hazardous waste within Canada unless the waste is accompanied by a manifest in accordance with these Regulations.

(2) A manifest shall have a unique manifest reference number for each shipment of hazardous waste, provided by the Minister or the province of origin or destination.

4. (1) The consignor shall complete and sign Part A of the manifest

(a) indicating the applicable shipping name, UN number, classification and packing group set out in the Transportation of Dangerous Goods Regulations; and

(b) adding the word "waste" or "recyclable", as applicable, to the shipping name, unless that word is already part of, or implied in, the shipping name.

(2) The consignor shall provide a copy of the manifest, with Part A completed, to the first authorized carrier of the hazardous waste, before the authorized carrier transports the waste.

(3) Every authorized carrier that transports the hazardous waste shall fill out, sign and date Part B of the manifest and provide it on delivery to the next carrier, if any.

(4) During transport, the manifest shall be kept in the location required for shipping documents under the Transportation of Dangerous Goods Regulations.

(5) The consignor shall send a copy of the manifest, with Parts A and B completed, within three days after providing the manifest to the first authorized carrier, to the authorities of the province where the hazardous waste originated and of the province of destination.

(6) The consignee shall complete Part C of the manifest and shall ensure that copies of the completed manifest are sent, within three days after receiving the hazardous waste, to the consignor, the last authorized carrier and the authorities of the province where the waste originated and of the province of destination.

(7) The consignor, each authorized carrier and the consignee shall keep at their principal place of business in Canada a copy of the manifest for a period of two years after the hazardous waste is received by the consignee.

COMING INTO FORCE

5. These Regulations come into force on August 15, 2002.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The goal of the Interprovincial Movement of Hazardous Waste Regulations (hereinafter referred to as the regulations) is to ensure that the current manifest tracking and classification requirements for the interprovincial movements of hazardous wastes are maintained.

Under section 191 of the Canadian Environmental Protection Act, 1999 (CEPA 1999), the Governor in Council has the authority to make regulations respecting conditions governing the movement within Canada of hazardous wastes and hazardous recyclable materials.

The regulations are required as a consequence of the new Transportation of Dangerous Goods Regulations (TDG regulations), made pursuant to the Transportation of Dangerous Goods Act, 1992. These new TDG Regulations are scheduled to enter into force on August 15, 2002.

The manifest has been used in Canada as a means to track shipments of hazardous waste since 1985, when it was first introduced under the TDG regulations. Both the manifest and the classification process under the TDG regulations have been used as important references for several other federal and provincial regulations on hazardous wastes and hazardous recyclable materials.

The introduction in CEPA 1999 of new authority to control the movement in Canada of hazardous wastes and hazardous recyclable materials signaled the intention of the Government of Canada to transfer the manifest tracking requirements from the TDG regulations to regulations under CEPA 1999. This approach is reflected in the new TDG regulations.

The new TDG regulations do not include specific sections concerning the manifesting of hazardous waste, nor do they continue to define waste for the purpose of controlling wastes and recyclable materials as a separate category of dangerous goods. In order to maintain the current manifest system, these requirements must be included in the regulations. In addition, the new Transportation of Dangerous Goods Regulations modifies the way in which miscellaneous dangerous goods are classified, which must also be addressed in the regulations.

Under the current TDG regulations, permits of equivalent level of safety (PELS) related to manifesting were issued by Transport Canada. Most of the existing TDG regulations PELS are administrative in nature and allow for variances that are planned to be incorporated into the comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations. Section 190 of CEPA 1999 allows the Minister to issue Permits of Equivalent Level of Environmental Safety (PELES) for activities that would be conducted in a manner not consistent with Division 8 of CEPA 1999. This includes activities related to the control of movements of hazardous waste and hazardous recyclable materials, such as manifesting. According to CEPA 1999, PELES applications must be assessed to ensure equivalent environmental safety. Therefore, the Minister will consider issuing PELES under CEPA 1999 to companies with existing TDG regulations PELS with similar conditions, where the objectives of section 190 of CEPA 1999 are met.

Timing

Environment Canada has initiated consultations on the planned comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations to implement enhanced authority to control interprovincial movements of hazardous wastes and hazardous recyclable materials under CEPA 1999. However, these comprehensive regulations are not expected to be in place until the end of 2002. Therefore, the regulations are required to ensure that there is no regulatory gap once the new TDG regulations come into force. To avoid any confusion, the entry into force of the regulations is being timed to coincide with the entry into force of the new TDG regulations.

Alternatives

A number of alternatives were examined:

(1) Taking no action

Given Canada's routine use of manifests to track hazardous waste shipment in Canada and internationally, allowing a regulatory gap to occur was not considered as an acceptable alternative.

(2) Accelerating the comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations

On-going manifesting procedures could be maintained by these requirements in the comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations. However, accelerating the time frame for the adoption of these comprehensive Regulations would not allow the time required for the necessary stakeholder consultations.

(3) Delaying the entry into force of the new TDG regulations

The new TDG regulations include significant changes to the Canadian approach to the safety in transport of dangerous goods. It would be inappropriate to delay their entry into force given the efforts that the regulated community has already expended to prepare for the new requirements. Delaying the entry into force of only those portions that impact the Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations could create confusion and regulatory uncertainty due to potential conflicting requirements.

(4) Interprovincial Movement of Hazardous Waste Regulations

Under this alternative, manifest provisions in the TDG regulations would be transferred to the regulations. This alternative was considered the most appropriate since it will minimize the impact on both the regulated community and the government. It also promotes continuing compliance with well-established and -understood requirements for manifesting.

Benefits and Costs

Benefits

The regulations ensure that there is no regulatory gap and that Canada will continue to comply with its obligations to require manifests for interprovincial movements of hazardous waste. Regulatory certainty will be maintained. This will facilitate compliance and allow the time required for appropriate consultations on more comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations.

Costs

It is reasonable to assume that there will be no increase in costs to the regulated community as the control regime is not changing, with the possible exception of any companies who had a TDG regulations PELS and which may not be issued a PELES. These companies will be required to complete manifest as per the regulations.

Since Environment Canada had been consulted by Transport Canada when issuing their PELS relevant to manifesting, there will not be any significant cost to Environment Canada to review the existing TDG Regulations PELS and for the Minister to consider issuing PELES under CEPA 1999 with similar conditions. The use of the PELES is planned for the comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations. Therefore, costs for the evaluation of future applications will be accounted for in the costs for these comprehensive regulations.

Given that the control of the interprovincial movements of hazardous wastes is under the authority of CEPA 1999, it will be the Environment Canada CEPA enforcement officers and analysts that will undertake enforcement, including inspection, investigation and any follow-up activities, until administrative agreements can be negotiated with provinces, territories and aboriginal governments that are willing to do so. This will result is an estimated cost of $175,000 until the comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations are in place.

Consultation

Environment Canada has informed the governments of provinces and members of the CEPA National Advisory Committee who are representatives of aboriginal governments of the Regulations. In addition, Environment Canada's intention to publish these Regulations was presented to industry, provinces and other stakeholders as part of a series of consultations across Canada on the planned comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations 2002. Stakeholders did not express any concerns regarding these proposed Regulations.

A 60-day comment period on the regulations followed pre-publication in the Canada Gazette, Part I, on April 20, 2002. A few comments were received and were taken into consideration. The main issue raised was the existing permits of equivalent level of safety issued under the TDG regulations, which allowed certain companies variances for completing the manifests. It proposed that the authority under section 190 of CEPA 1999 for Minister to issue permits of equivalent level of environmental safety (PELES) be used for variances from the manifesting requirements.

Compliance and Enforcement

The regulations maintain in place a manifest system for wastes that, until August 15, 2002, is in force under the TDG regulations. As the regulations are being made under CEPA 1999, Environment Canada will become responsible for their enforcement. The Department intends to seek the co-operation of provincial, territorial and aboriginal governments in enforcing the regulations. Section 217 of CEPA 1999 allows designation, by the Minister of the Environment, of employees of provincial, territorial and aboriginal governments as enforcement officers with the approval of these governments. Such designations plus other matters involving co-operative enforcement could be implemented by administrative agreements to be negotiated and made under section 9 of CEPA 1999.

Environment Canada CEPA enforcement officers and analysts will undertake enforcement, including inspection, investigation and any follow-up activities, until administrative agreements can be negotiated with provinces, territories and aboriginal governments that are willing to do so. Environment Canada enforcement officers have significant experience in the enforcement of manifest requirements since this same document is used for international shipments under the Export and Import of Hazardous Wastes Regulations. The cost of enforcement by Environment Canada of the regulations is estimated to be $175,000 until the comprehensive Interprovincial Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations are in place. These costs will have to be reevaluated at that time since these comprehensive Regulations will be more extensive in scope.

As provinces, territories and aboriginal governments agree to sign administrative agreements for the enforcement of the regulations, the enforcement cost to the department is likely to be reduced. In signing such agreements, Environment Canada will bear the cost of training any provincial, territorial and aboriginal government employees in order to enforce the regulations under the authority of CEPA 1999. These costs may be significant but could be reduced through cost-sharing arrangements related to the processing of manifests.

The number of persons to be trained will depend on the province, territory or aboriginal governments involved since the number of shipments to be inspected varies across Canada. Given that it is not known at this time how many administrative agreements will be signed, it is not possible at this time to estimate the training cost.

When verifying compliance with the Regulations, CEPA enforcement officers will abide by the Compliance and Enforcement Policy implemented under CEPA 1999. This policy sets out the range of possible responses to violations: warnings, directions, environmental protection compliance orders issued by enforcement officers, ticketing, ministerial orders, injunctions, prosecution and environmental protection alternative measures. In addition, the policy explains when Environment Canada will resort to civil suits by the Crown for costs recovery.

Once there is confirmation that a violation has been committed, the appropriate response will be selected, based on the following criteria:

— Nature of the alleged violation: This includes consideration of the damage, the intent of the alleged violator, whether it is a repeat violation, and whether an attempt has been made to conceal information or otherwise subvert the objectives and requirements of CEPA 1999;

— Effectiveness in achieving the desired result with the alleged violator: The desired result is compliance within the shortest possible time and with no further repetition of the violation. Factors to be considered include the violator's history of compliance with CEPA 1999, willingness to cooperate with enforcement officials, and evidence of corrective action already taken; and

— Consistency: Enforcement officers will consider how similar situations have been handled in determining the measures to be taken to enforce CEPA 1999.

Contacts

Joe Wittwer
Transboundary Movement Branch
Toxics Pollution Prevention Directorate
Department of the Environment
Ottawa, Ontario
K1A 0H3
Telephone: (819) 953-2171
FAX: (819) 997-3068
E-mail: joe.wittwer@ec.gc.ca

Peter Sol
Regulatory and Economic Analysis Branch
Economic and Regulatory Affairs Directorate
Department of the Environment
Ottawa, Ontario
K1A 0H3
Telephone: (819) 994-4484
FAX: (819) 997-2769
E-mail: peter.sol@ec.gc.ca

Footnote a 

S.C. 1999, c. 33

Footnote b 

S.C. 1999, c. 33

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).