Vol. 150, No. 14 — April 2, 2016

Regulations Amending the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Since the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations (the Regulations) came into force in 2005, on average, there has been one export from Canada each year that has been refused by the importing or transit country because the waste or recyclable materials were prohibited or controlled in one or both of these countries. However, the exported materials were not covered under Canadian regulations, usually because they were collected from households. These wastes or recyclable materials were subject to the United Nations Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention (see footnote 1)); consent was therefore required from the importing country before their transboundary movement. These exports included a shipment of household recyclable materials to the Philippines in 2013.

In addition, the Department of the Environment (the Department) identified inconsistencies between the Basel Convention requirements and the return provisions of the Regulations for permitted imports or exports that cannot be completed as planned. The return provisions of the Regulations currently apply only when the destination facility does not accept or refuses a shipment. However, there may also be situations in which the authorities of the importing or transit country determine that a shipment of waste or recyclable material cannot be completed as planned, after consent for the shipment was provided, but before delivery to the destination facility. In these situations, the Basel Convention requires the return of these shipments to the country of export if arrangements cannot be made for another facility to handle the waste or recyclable material.

Background

The Basel Convention was adopted in 1989 to respond to growing global concerns about hazardous waste management. The Convention, ratified by 183 countries, including Canada in 1992, covers wastes and recyclable materials defined as “hazardous wastes” based on their origin and/or composition and their hazard characteristics, as well as “other wastes,” defined as household wastes and residues arising from the incineration of household wastes. Under the Basel Convention, a country must not export hazardous waste or other waste without first obtaining the consent of an importing or transit country. In addition, there are requirements for the country of export to take back any shipment of waste that cannot be completed as planned.

In Canada, the responsibility for managing and reducing waste is shared among federal, provincial, territorial and municipal governments. Municipal governments are responsible for collecting and managing waste from homes for recycling, composting, and disposal, while provincial and territorial authorities are responsible for the approval and monitoring of waste management facilities and operations. Under the Canadian Environmental Protection Act, 1999 (CEPA), the federal government has responsibilities for controlling international and interprovincial movements of hazardous waste and hazardous recyclable material, as well as releases of substances listed as toxic under Schedule 1 of CEPA from waste to the air, land, and water, and waste management activities on federal lands.

The Regulations, which came into force in 2005 under CEPA, are the primary tool by which Canada meets its obligations under the Basel Convention. The Regulations define hazardous waste and hazardous recyclable material and establish a permitting regime to control and track their transboundary movements between Canada and other countries. It is through the permitting process that Canada obtains consent from the importing or transit country.

In 2014, Canada exported approximately 531 000 metric tons of hazardous waste and hazardous recyclable material. Approximately 98% of these exports were destined for the United States, with the remaining 2% exported to other countries outside North America, mainly in Europe and Asia. In the same year, 380 000 metric tons of hazardous waste and hazardous recyclable material were imported into Canada, with more than 99% originating from the United States.

Objectives

The objective of the proposed Regulations Amending the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (the proposed Amendments) is to strengthen Canada’s ability to meet two of its Basel obligations: the obligation to seek the consent of an importing or a transit country for any export from Canada of waste or recyclable material subject to the Basel Convention, including household waste; and the obligation to take or send back shipments that cannot be completed as planned.

Description

The proposed Amendments would expand the definitions of “hazardous waste” and “hazardous recyclable material” to capture any waste or material as “hazardous,” including materials collected from households, if

A Canadian exporter would be required to notify the Department, and obtain a permit, prior to any export of the waste or recyclable material, and to meet all other requirements of the Regulations (insurance, tracking shipments, obtaining confirmation of disposal or recycling, etc.).

The proposed Amendments would also add new provisions to address shipments of waste or recyclable material for which consent was provided by the importing country and a permit issued, but that could not be completed as planned. These include

All requirements for returning or making alternate arrangements would apply in the event the shipment were refused by the importing country or a transit country (insurance, tracking the returned shipment, etc.).

A number of other consequential amendments would be made to various provisions to ensure accurate references to the definitions of “hazardous waste” and “hazardous recyclable materials” and the conditions of export or import. In addition, some minor editorial changes and corrections to align the French and English texts would be made. These consequential proposed Amendments would not change any of the requirements of the existing Regulations.

“One-for-One” Rule

The “One-for-One” Rule applies to the proposed Amendments, as there are incremental administrative costs to business. An estimated six newly regulated small businesses would be required to submit notices to the Minister once a year, before any export of waste and recyclable material takes place, and to report information on these exports. An estimated six carriers would also be subject to tracking requirements of the Regulations as a result of the expanded definitions of “hazardous waste” and “hazardous recyclable material.”

The total annualized administrative costs for newly regulated businesses to comply with the regulatory requirements over a 10-year time frame would be approximately $594 for all stakeholders (or $50 per business, $95 per exporter and $7 per carrier). (see footnote 2)

The administrative activities, and associated assumptions, include the following:

Small business lens

The proposed Amendments would increase the administrative burden of approximately six small businesses that are expected to have fewer than 100 employees. However, the total cost of the proposed Amendments would be less than one million dollars, and the additional costs to small businesses would not be disproportionately high (about $7,200 per business per year). The small business lens therefore does not apply to the proposed Amendments. Exporters, which are expected to be small businesses, would need to fulfill the administrative requirements as mentioned above in the “‘One-for-One’ Rule” section ($95 per business per year), as well as purchase liability insurance ($6,900 per business per year) and develop contracts ($200 per business per year).

Consultation

In November 2015, consultations were held with the regulated community, as well as other stakeholders that may be implicated in exports of waste or recyclable materials from households. A discussion document describing the proposed Amendments and the estimated administrative and compliance costs for businesses affected by the proposed Amendments was sent to more than 800 stakeholders.

Comments were received from nine stakeholders, including municipalities, provinces, and industry. There was general support for the proposed Amendments, and no major concerns were raised.

Comments on the expanded definitions of “hazardous waste” and “hazardous recyclable material” suggested aligning the definitions with those of the Basel Convention, including using the relevant codes for waste collected from households. The Department agrees and the definitions in the proposed Amendments have been aligned with those of “hazardous wastes” and “other wastes” in the Basel Convention.

With respect to returning a refused shipment, a stakeholder suggested that the return and disposal or recycling should occur within 90 days. The Department agrees that such a return should occur within the 90 days or other agreed-upon period, to better align with the requirements of the Basel Convention.

Comments were also received regarding potential delays in the issuance of permits as a result of an increased number of notices that may need to be reviewed by the Department. An increased departmental workload has been considered in planning for effective implementation of the proposed Amendments.

There was also a comment that the costs of the proposed Amendments may have been underestimated. This comment was taken into consideration in the cost estimates for the proposed Amendments.

Comments on other aspects of the export and import of waste and recyclable material that were outside of the scope of the proposed Amendments were also received and will be taken into consideration in the development of new regulations to control the international and interprovincial movements of hazardous waste and hazardous recyclable material. These new regulations would replace the Regulations (including the proposed Amendments), the Interprovincial Movement of Hazardous Waste Regulations, and the PCB Waste Export Regulations, 1996.

Rationale

The definitions of “hazardous waste” and of “hazardous recyclable material,” in the Regulations, do not fully encompass all wastes subject to the Basel Convention. The proposed Amendments would strengthen Canada’s ability to seek the consent of an importing and transit country to any export from Canada of waste or recyclable material subject to the Basel Convention and to avoid exporting waste or recyclable material that would be refused.

Approximately 155 Canadian exporters and importers of hazardous waste and hazardous recyclable materials are subject to the current Regulations. Additional Canadian companies that could be affected by the change of definition of “hazardous waste” and of “hazardous recyclable material” in the proposed Amendments include those that

About 98% of all waste and recyclable material that is exported from or imported into Canada is traded with the United States. Since the United States does not prohibit or control imports of household waste or recyclable materials, and their definition of “hazardous waste” is already in line with the definitions of “hazardous waste” and of “hazardous recyclable materials” under the Regulations, the proposed Amendments would not have an impact on Canadian companies that export these types of waste and materials to the United States.

Only a small number, an estimated six Canadian companies and six carriers, is expected to be affected by the proposed Amendments. Exporters would be required to notify the Minister of planned transboundary movements in order to obtain a permit to comply with the tracking requirements of the Regulations for each shipment, to purchase liability insurance ($6,900 per business per year) and to develop contracts ($200 per business per year). Carriers would be required to complete movement documents to track their shipments. Based on current information, it is estimated that six Canadian exporters would submit six notices for 12 shipments per year. Additionally, the six carriers that would transport the 12 shipments of waste or recyclable material would need to complete a portion of the movement document. Given that the revised definitions of “hazardous waste” and of “hazardous recyclable material” would ensure that these exports are made only with the consent of the importing country, it is not anticipated that there would be costs associated with returns, except under exceptional circumstances. The total annualized cost of the proposed Amendments is estimated to be about $43,000.

It is expected that the proposed Amendments would capture up to 1 000 metric tons of additional hazardous waste and hazardous recyclable material exported each year. This would be a small amount (less than 0.2%) of the total volume of hazardous waste and hazardous recyclable material exported each year. Only exports would be affected by the change of definition of “hazardous waste” and of “hazardous recyclable material” in the proposed Amendments. There would be no implications for imports into Canada.

The provisions requiring the return of a shipment if a country withdraws its consent in the proposed Amendments are not expected to result in any additional returns. Currently, only a small number of shipments of hazardous waste and hazardous recyclable material exported in accordance with a permit are not accepted (less than 1%). As well, a withdrawal of consent has never occurred for the above-mentioned exports and only once for imports of hazardous waste and hazardous recyclable material since the Regulations came into effect in 2005.

Strategic environmental assessment

As required by the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted and concluded that there would be no expected important environmental effects, either positive or negative; accordingly, a strategic environmental assessment is not required.

Implementation, enforcement and service standards

The proposed Amendments are expected to encompass new potential regulatees that would not have been previously subject to the Regulations, and may not be well versed in the requirements of the Basel Convention. As a result, significant compliance promotion efforts would be undertaken immediately prior to and following publication of the final Amendments. Compliance promotion materials and activities would be focused on highlighting changes for existing permit holders, potential new regulated companies (due to newly expanded definitions of “hazardous waste” and of “hazardous recyclable material”), and for other key stakeholders such as municipalities, transportation companies, and trade associations. Compliance promotion tools may include a combination of the following: Frequently Asked Questions, information sheets, Web site notifications, leveraging communication opportunities with trade associations, and direct mail-outs to Canadian export companies.

It is anticipated that the proposed Amendments would not have an impact on current service standards and performance indicators for issuing export permits under the Regulations. (see footnote 3)

The Department’s Compliance and Enforcement Policy (see footnote 4) for CEPA will be applied when compliance with the proposed Amendments is verified. This policy sets out the range of possible responses to alleged violations, including warnings, directions in case of release, environmental protection compliance orders, ticketing, ministerial orders, injunctions, prosecution and environmental protection alternative measures (which are an alternative to a court prosecution after the laying of charges for a CEPA violation). In addition, the policy explains when the Department of Environment and Climate Change will resort to civil suits by the Crown for cost recovery.

When, following an inspection or an investigation, an enforcement officer discovers an alleged violation, the officer will choose the appropriate enforcement action based on the following factors:

Contacts

Gwen Goodier
Director
Waste Reduction and Management Division
Environment and Climate Change Canada
Place Vincent Massey
351 Saint-Joseph Boulevard, Room 09-062
Gatineau, Quebec
K1A 0H3
Email: ec.mt-tm.ec@canada.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Environment and Climate Change Canada
Fontaine Building
200 Sacré-Cœur Boulevard, Room 1084
Gatineau, Quebec
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Governor in Council, pursuant to section 191 of that Act, proposes to make the annexed Regulations Amending the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations.

Any person may, within 60 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Regulations or a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Gwen Goodier, Director, Waste Reduction and Management Division, Environmental Stewardship Branch, Department of the Environment, 351 Saint-Joseph Blvd., Gatineau, Quebec K1A 0H3 (fax: 819-938-4553; email: ec.mt-tm.ec@canada.ca).

Any person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, March 24, 2016

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations

Amendments

1 (1) The portion of subsection 1(1) of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (see footnote 5) before paragraph (a) is replaced by the following:

Definition of hazardous waste

1 (1) For the purposes of Division 8 of Part 7 and Part 10 of the Act and these Regulations, hazardous waste means anything that is to be disposed of using one of the operations set out in Schedule 1 and that

(2) Subsection 1(1) of the Regulations is amended by striking out “or” at the end of paragraph (f), by adding “or” at the end of paragraph (e) and by repealing paragraph (g).

2 The Regulations are amended by adding the following after section 1:

Waste considered hazardous for export

1.1 Anything that is to be disposed of using one of the operations set out in Schedule 1, even if it is not hazardous waste within the meaning of subsection 1(1), is considered to be hazardous waste for the purposes of Division 8 of Part 7 and Part 10 of the Act and these Regulations if it is to be exported to a country of import or conveyed in transit through a country and

3 (1) The portion of subsection 2(1) of the Regulations before paragraph (a) is replaced by the following:

Definition of hazardous recyclable material

2 (1) For the purposes of Division 8 of Part 7 and Part 10 of the Act and these Regulations, hazardous recyclable material means anything that is to be recycled using one of the operations set out in Schedule 2 and that

(2) Subsection 2(1) of the Regulations is amended by striking out “or” at the end of paragraph (f), by adding “or” at the end of paragraph (e) and by repealing paragraph (g).

(3) The portion of paragraph 2(2)(d) of the Regulations before subparagraph (i) is replaced by the following:

(4) The portion of paragraph 2(2)(e) of the Regulations before subparagraph (i) is replaced by the following:

(5) Subparagraph 2(2)(e)(iii) of the English version of the Regulations is replaced by the following:

4 The Regulations are amended by adding the following after section 2:

Recyclable material considered hazardous for export

2.1 Anything that is to be recycled using one of the operations set out in Schedule 2, even if it is not hazardous recyclable material within the meaning of subsection 2(1), is considered to be hazardous recyclable material for the purposes of Division 8 of Part 7 and Part 10 of the Act and these Regulations if it is to be exported to a country of import or conveyed in transit through a country and

5 (1) The definition authorities of the country in section 4 of the Regulations is repealed.

(2) Section 4 of the Regulations is amended by adding the following in alphabetical order:

competent authority means, in the case of a country that is a party to the Convention or is subject to OECD Decision C(2001)107/Final, the authority that is designated as the competent authority by that country under the Convention or under OECD Decision C(2001)107/Final, as the case may be, and, in the case of the United States, the United States Environmental Protection Agency. (autorité compétente)

6 Subsection 7(4) of the Regulations is replaced by the following:

Language

(4) In the case of an export or a transit, if English or French is not a language used by the competent authority of the country of import or transit, the notice must be submitted in English or French and in a language used by that competent authority.

7 (1) Subparagraphs 8(j)(ii) and (iii) of the Regulations are replaced by the following:

(2) Subparagraph 8(n)(ii) of the Regulations is replaced by the following:

8 (1) Subparagraph 9(a)(ii) of the Regulations is replaced by the following:

(2) Subparagraph 9(e)(ii) of the Regulations is replaced by the following:

(3) Subparagraph 9(f)(v) of the Regulations is replaced by the following:

(4) Clause 9(f)(vi)(D) of the Regulations is replaced by the following:

(5) Subparagraph 9(p)(i) of the Regulations is replaced by the following:

(6) Subparagraph 9(p)(ii) of the English version of the Regulations is replaced by the following:

(7) Subparagraph 9(p)(iii) of the Regulations is replaced by the following:

(8) Section 9 of the Regulations is amended by striking out “and” at the end of paragraph (o) and by adding the following after paragraph (p):

9 (1) Subparagraph 16(a)(ii) of the Regulations is replaced by the following:

(2) Subparagraph 16(e)(v) of the Regulations is replaced by the following:

(3) Clause 16(e)(vi)(C) of the Regulations is replaced by the following:

(4) Subparagraph 16(o)(i) of the Regulations is replaced by the following:

(5) Subparagraph 16(o)(ii) of the English version of the Regulations is replaced by the following:

(6) Subparagraphs 16(o)(iii) and (iv) of the Regulations are replaced by the following:

(7) Section 16 of the Regulations is amended by striking out “and” at the end of paragraph (n) and by adding the following after paragraph (o):

10 Subparagraph 38(1)(a)(ii) of the Regulations is replaced by the following:

11 Schedule 1 to the Regulations is amended by replacing the references after the heading “SCHEDULE 1” with the following:

(Subsection 1(1), sections 1.1 and 4, subparagraphs 8(j)(i) and (viii) and 9(f)(iv), paragraphs 9(n) and (o), subparagraph 16(e)(iv), paragraphs 16(m) and (n) and subparagraph 38(1)(a)(i))

12 Schedule 2 to the Regulations is amended by replacing the references after the heading “SCHEDULE 2” with the following:

(Subsection 2(1), subparagraph 2(2)(e)(iii), sections 2.1 and 4, subparagraphs 8(j)(i) and (viii) and 9(f)(iv), paragraphs 9(n) and (o), subparagraph 16(e)(iv) and paragraphs 16(m) and (n))

Coming into Force

13 These Regulations come into force on the day on which they are registered.

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