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Cross-border movement of hazardous waste and recyclable materials: response to comments  

1. Purpose

The purpose of this document is to provide a detailed summary of comments received from industry stakeholders following the publication of a discussion document on the proposed Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations (proposed regulations) in 2017Footnote 1.  This document also provides stakeholders with additional information where concerns were raised or clarifications were requested regarding changes put forward in the discussion document. Furthermore, the document answers where possible, questions related to the implementation of the proposed regulations by referencing new or upcoming functionalities of the Canadian Notification and Movement Tracking System (CNMTS). This document is intended to be read along with the discussion document and the proposed Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations that were published in the Canada Gazette, Part I on December 15th, 2018Footnote 2.

2. Consultation

The discussion document was published on August 23rd, 2017. Public comments were invited until October 6th, 2017. The objective of the consultation was to engage with stakeholders to get feedback on proposed changes to the regulatory requirements, and associated costs, for transboundary movements of hazardous waste and hazardous recyclable material under consideration for the proposed regulations.

The discussion document outlined proposed changes to regulatory requirements in a descriptive format and included some preliminary estimates of the potential administrative and compliance costs for businesses resulting from the proposed changes. Environment and Climate Change Canada (ECCC) received thirty-one (31) submissions from industry stakeholders. The feedback received was taken into consideration in drafting the proposed regulations and preparing the associated Regulatory Impact Assessment Statement (RIAS) which were published in the Canada Gazette, Part I on December 15th, 2018Footnote 3.  Additional comments that will be received as part of the formal 60-day consultation period following this publication will also be carefully considered as ECCC finalizes the proposed regulations.

The proposed regulations will come into force following the publication of the final regulations in the Canada Gazette, Part II. The suggested transition period can be found in the proposed regulations.

The following sections of this document are organized under the same subject headings as those in the discussion document.

3. Regulatory proposal in discussion document

3.1 Structure of the proposed regulations

Most stakeholders expressed support for combining the three existing regulations to eliminate inconsistencies and bring clarity to the regulatory requirements to manage hazardous waste and hazardous recyclable material. Stakeholders recognized this would provide more clarity and efficiency for both regulated parties and regulators. The importance of maintaining regulatory alignment with the United States was emphasized. This is important due to the significant volumes of waste moving across the border between Canada and the United States. Stakeholders had questions regarding how combining these three regulations would change the administration of international and interprovincial movements. These specific comments are noted in sections 3.2, 3.3, 3.4, 3.5 and 3.6.

ECCC response

The proposed regulations are organised according to the type of movement to be undertaken (export, import, transit, interprovincial, etc.). All the requirements related to one type of movement are grouped within the same section of the proposed regulations for ease of reference.

ECCC has been working closely with the United States Environmental Protection Agency (U.S. EPA) since regulatory provisions on the movement of waste were first put into place in the 1980s. Efforts to harmonize requirements as much as possible on both sides of the border have been made over time given the different regulatory context in Canada and the United States. The U.S. updated (December 31, 2016) their hazardous waste export and import rule to better harmonize with Canadian and OECD requirements. The proposed regulations maintain and, in some areas, improve alignment with requirements of the U.S. EPA. Cooperation with the U.S. will continue throughout the current regulatory development and implementation process.

3.2 Notification, permit and movement tracking for international movements

The following sub-sections outline stakeholder comments on the discussion document pertaining to these subjects within this category:

3.2.1 Permit applicant and permit holder

The use of the words "permit holder" received support from many stakeholders. Specifically, the expansion of the entities that may apply for permits was welcomed. Additional clarification on who can apply for a permit was requested. Questions received included whether the following parties could be permit holders:

In addition, the following questions of clarification were raised:

A stakeholder suggested that the responsibilities of the permit holder should be clear as well as the penalties associated with the failure to meet these responsibilities.

ECCC response

The concept of a permit holder is being introduced in the proposed regulations to clarify the use of the words “exporter” and “importer” in the current Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Export and Import Regulations). The permit would be issued to a person who meets the criteria to be an applicant set out in the proposed regulations which would include a corporationFootnote 4 (see sections 7, 19, 31, 42, 52 and 63 of the proposed regulations for the criteria related to each type of international movement). A broker or stewardship organization would be able to become a permit holder if they meet the criteria to be an applicant. The person to whom the permit is delivered would be referred to as the permit holder in the proposed regulations. The permit holder would be responsible for the movement of hazardous waste or hazardous recyclable material, as it is currently the case under the Export and Import Regulations.

A permit application is referred to as a notification in the proposed regulations. To apply for a permit, the applicant would create an account in the CNMTS. In many cases, applicants are corporations and, therefore, the account is the corporation’s account. The applicant, who becomes the account holder, manages the access to the account. Hence, the account holder decides who can log into the CNMTS and sign permit applications on their behalf as authorized representatives. For example, an authorized representative could be a third party such as a broker. All authorized representatives would have full access to the notification module of the electronic system and, eventually, also to the movement tracking module once that module is released. Different levels of access are not contemplated. Anyone with access to an account can complete an application for a permit, but it is the account holder, not the authorized representative, who is the permit holder and subject to the regulatory requirements.

As it is already the case under the current Export and Import Regulations, the permit holder is responsible for ensuring that activities conducted under the permit comply with the terms of the permit and the conditions set out in the regulations. Sections 14, 26, 38, 48, 59 and 70 of the proposed regulations outline the specific conditions that need to be fulfilled for each type of international movement. The proposed regulations would be made under the Canadian Environmental Protection Act, 1999 (CEPA); therefore, enforcement officers would, when verifying compliance with the proposed regulations, apply the Compliance and Enforcement Policy for CEPAFootnote 5. The policy sets out the range of possible enforcement responses to alleged violations. Following an inspection or investigation, when an enforcement officer discovers an alleged violation, the officer would choose the appropriate enforcement action based on the policy.

3.2.2 Electronic system

Stakeholders expressed general support for moving to a modern electronic tracking system provided that this system is secure and successfully enables regulated parties to submit, review and manage their information, notifications, movement documents and confirmations of disposal or recycling more efficiently. The few that expressed concerns with the modernization of the tracking system suggested allowing a paper-based back up process and a transition period of at least one year to adhere to the movement tracking system.

Most stakeholders expressed support for the flexibility offered by a listing of required information to be submitted, and not require a specific form in the proposed regulations. They also noted the importance of being able to print documentation out from this system as needed and have this documentation serve as a paper shipping document to also fulfill the Transportation of Dangerous Goods Regulations (TDGR) requirements.

The following suggestions were made for the modernization of the tracking system:

In addition, there were some stakeholders that expressed a need for more clarity surrounding how requirements under the Basel Convention will be integrated into the modernized tracking system. Specifically, they asked the following of ECCC:

ECCC response

Subsequent to the launch of the notification and permitting external intake portal launched in 2015, ECCC released in June 2018, the internal module that allows for the electronic treatment of notices submitted online. This, in essence, completed the CNMTS for exports, imports and transits. The movement tracking module of the system, that includes movement documents and confirmations of disposal or recycling, is currently under development in consultation with stakeholders. Once released, this module will allow the production and transmittal to ECCC of movement document information, confirmation of disposal or recycling information as well as requests for returns and re-routings for international movements. For movements between provinces and territories, see section 3.6 of this document.

The exchange of movement document information by the involved parties during a shipment would mainly remain paper-based until further releases of the system’s components provide more flexibility to allow electronic exchange of information between parties and with ECCC. It is anticipated that a first release of the movement tracking module, prior to the coming into force of the proposed regulations, would be available in the fall of 2019 and a subsequent release would be made available at the time the proposed regulations come into force. Currently, all companies submitting permit applications use the electronic system. It is expected that, starting in the fall 2019, companies will also adopt the electronic movement tracking system so that by the coming into force of the proposed regulations, all companies will be fully on-board with the electronic system for both the notification and movement tracking. Carbon paper movement documents will gradually be phased out during the transition to the electronic movement tracking module. A significant benefit of the electronic movement tracking system will be the ability for users to pre-populate a movement document template with information from the permit, and to print it out as required. In the case of a major power outage or unforeseen situation, ECCC would allow paper forms as back-up. The vision for the CNMTS is to eventually make the notification, movement document and confirmation of disposal or recycling of exports, imports, transits, re-routings and returns of hazardous waste and hazardous recyclable material a completely paperless process.

ECCC will keep industry stakeholders informed about the details of the system development and implementation well in advance of the official launch of the movement tracking module.

ECCC plans to maintain business confidentiality in the modernized electronic system as it is already integrated in the current version of the electronic system. The permit holder would be responsible for filling in all pertinent information in CNMTS, which can be done by any authorized representative to which the permit holder provided access to his profile.

At the moment, the objective is for the CNMTS to allow for the preparation of a printed report that can be used by provinces and territories. However, ECCC is evaluating other means of facilitating data exchange with provinces and territories as well as with the United States. ECCC is currently discussing with the U.S. and Ontario on potential approaches. The longer-term goal is for the three organizations to develop interconnectivity between their respective systems to reduce burden on stakeholders. CNMTS currently exchanges notification information with the U.S. EPA system. The long-term goal is to enable the CNMTS to exchange additional information, such as movement tracking information, with other government authorities, such as Canada Border Services Agency (CBSA), provincial and territorial governments, U.S. EPA and Transport Canada. Because of the complexity of the different systems and the different plans for development, it will not be possible to develop and launch all the features at once. Systems will evolve over time to provide further gains in reducing the administrative burden associated with information exchanges between parties.

With respect to the questions regarding the possibility of submitting additional information in the CNMTS at the notification or movement document stage to fulfill other requirements (e.g. TDGR requirements, provincial requirements), the notification and printable movement document template will contain optional fields for such information. This would allow a permit holder to pull this information from the permit to populate movement documents rather than having to enter this information every time a movement document is required.

With respect to the stakeholder questions on the last paragraph of section 3.2.2, Canada is a Party to the Basel Convention, but the U.S. is not. Both countries are members of the OECD and implement the OECD Decision through their respective legislation. A Canadian importer does not need to include the Basel or OECD forms completed by the foreign exporter with the Canadian notification. ECCC receives these forms from the competent authority of the country of export. With respect to exports that involve other OECD or Basel Convention countries, it is possible that the authorities of those countries request OECD or Basel notification and movement document forms in addition to the Canadian ones. CNMTS does not currently offer functionalities to complete the OECD/Basel forms; however, it offers the possibility to submit OECD/Basel documentation to ECCC if necessary. A number of exporters have indicated that they already have the internal capability to complete the Basel/OECD forms. ECCC welcomes any further feedback from users on this issue. ECCC is also monitoring closely the development of similar systems internationally, as well as related multilateral discussions under the Basel Convention, to foresee possible impacts and opportunities to enhance the CNMTS’s capabilities and functionalities in the future.

3.2.3 Notification

This sub-category has three subjects of discussion within it, as follows:

Insurance and contract documentation required with a notification

Stakeholders expressed support for eliminating the need to submit all the documentation they are currently required to submit with a notification (i.e. proof of insurance and contracts) and to, instead, simply include a statement in the notification to the effect that the required insurance and contracts are in place and keep proof of insurance coverage and copies of contracts at their principal place of business in Canada. They also welcome any changes that reduce administrative burden and paperwork. It was suggested that the exporter, importer and carriers be responsible to keep their own insurance records instead of the permit holder.

It was suggested that a template for the contract be provided so that parties can ensure all requirements are met. Also mentioned, was the request for clarification as to whether a new contract is required for every notification or if an ongoing business contract can be in place between an exporter, importer and authorized facility.

Numerous stakeholders suggested a document retention time for contracts and proof of insurance of 2-3 years, rather than the 5 years proposed by ECCC.

ECCC response

Recent updates to the CNMTS have considerably improved the notification and permit issuance process. These proposed changes would further improve the timeliness of permit issuance.

The mandatory information required on the notification would be listed in a schedule of the proposed regulations. This would be the information reviewed by ECCC. In the electronic system, this mandatory information would be specifically identified and would be validated. As noted above, in section 3.2.2, the electronic system would include optional fields for additional information that may be required by other jurisdictions on the notification or for the movement document.

The changes proposed to reduce the amount of time required to process notifications and issue permits are as follows:

The permit holder would still be required to keep proof of insurance coverage and copies of contracts as they would still be responsible for ensuring that activities conducted under the permit comply with the terms of the permit and the conditions set out in the regulations, as it is currently the case under the Export and Import Regulations. The five year retention period for documents is proposed in an effort to standardize the record retention period for all regulations under CEPA.

ECCC would not be providing a template for contracts. The proposed regulations would clarify the requirements to be included in contracts but it would be the responsibility of the regulated entities to ensure that all requirements of the proposed regulations are met in their business contracts and that the contracts are valid for the required duration. However, please note that a factsheet on contracts is currently available on ECCC’s website and this fact sheet would be updated to ensure that the information it provides is in line with the proposed regulations.

Notification process

With regard to ECCC’s proposed change to now require a new notification for any amendments or changes to the information on a permit, many stakeholders expressed concern that providing a new notification for administrative changes that are perceived to be simple would result in unnecessary processing delays. If a new notification for an amendment would result in more efficient processing time, then this should be more clearly communicated to stakeholders. The benefits and rationale for this proposed change were unclear to stakeholders. There were also concerns regarding unexpected emergency situations, and whether a new permit is required in those situations.

Many stakeholders expressed concern related to the time currently required to process a permit application. All stakeholders are in favour of changes that would speed up the notification process for both the applicant and ECCC.

ECCC response

In the proposed regulations, a new notification would be required for any modification to the required information on a permit, except to correct clerical errors. This change to the permitting process would result in more efficient processing time for permits. A new notification is administratively easier and faster for ECCC to review and match to a corresponding U.S. notification (for imports). Corrections to a notification and exceptionally to a permit for errors made by ECCC would still be possible (i.e. clerical type errors). Any change to an existing permit must receive the consent of relevant competent authorities. This process requires the same effort as processing a new notification. Currently, ECCC prioritizes the treatment of new notifications over modifications of existing permits to ensure that regulated parties receive their permits as quickly as possible. This change would also harmonize the Canadian process with the process in the U.S., therefore improving the efficiency of information exchange between organizations and making the process more efficient. Also, functionalities of the CNMTS for permit applications now allow applicants to easily and quickly send a new permit application based on a previous one. Furthermore, the proposed regulations include other changes (e.g. no need to attach contracts to application, no need to provide insurance information) that would further accelerate permit processing time for new notifications.

The recently launched features of the CNMTS improve the completeness and accuracy of submitted notifications, provide better access to files, and support efficient work by speeding up the overall processing time.

Also, the increased permit validity time would reduce the number of notifications to be reviewed. ECCC estimates that the overall outcome of the proposed regulations would be a net reduction in the number of notifications to be reviewed and a net decrease in the permit processing time.

With respect to an emergency situation, this is always prioritized when ECCC becomes aware of one. Emergency situations are dealt with on a case by case basis and would continue to be dealt with in this manner.

Codes required with a notification

Some stakeholders suggested that the proposed regulations should include a full list of the codes that would be required to describe hazardous waste and hazardous recyclable material and the proposal should highlight any proposed changes. There were also questions of clarification regarding whether the International Waste Identification Code (IWIC) would still be used by other OECD countries and if so, would exporters be required to use it. Some stakeholders were concerned the codes could change during the period of validity of a permit and that this would affect their operations. Concerns were also expressed about the Tariff Items (i.e. customs’ “HS” codes) that can be subject to change during the period of validity of a permit. Such a change creates inconsistencies between the permit and the information on the movement document at the time the shipment is exported or imported, because the up-to-date “HS” code must be used on the movement document. These inconsistencies can lead to problems at the border. One stakeholder recommended that the order of the fields be amended to align with TDGR requirements (specifically listing the UN number first).

ECCC response

Schedules of the proposed regulations include the full list of codes that would be required. These codes align as much as possible with codes used internationally. Where differences arise, the codes listed in the proposed regulations would take precedence while a shipment is in Canada. Some of the components of the IWIC are no longer used internationally. Therefore, listing the relevant codes in schedules of the proposed regulations would provide clarity and ease of reference for the Canadian notification and movement document. Any change to codes listed in the schedules of the proposed regulations requires going through a full regulatory amendment process, including consultations with stakeholders.

With respect to Tariff Items, ECCC recognizes that the Canadian Border Service Agency (CBSA) publishes updates to the Tariff Items (HS codes) on a regular basis. There is a possibility that an HS code on a permit is no longer current when the movement document is created. To avoid this, the proposed regulations would no longer require the HS code as mandatory information on the permit application. The HS code would only be mandatory information to be included on movement documents for international shipments.

3.2.4 Permits for international movements

This sub-category has three topics of discussion within it, as follows:

Permit suspension and revocation

Stakeholders agreed that there is a need for the proposed regulations to clearly specify the conditions under which ECCC would suspend or revoke permits, with criteria where appropriate, as well as the need for the regulations to provide clear direction on the appeal process. It was noted that it was important for ECCC to provide case-specific details for the reasons for its suspension. There were also specific questions raised about the conditions to be followed by carriers in the event of an unforeseen suspension of a permit while shipments are in transit.

ECCC response

The proposed regulations outline conditions under which ECCC would suspend or revoke an existing permit.

The conditions for the suspension or revocation of a permit include:

In the event of a suspension or revocation ECCC would provide a written notice to the permit holder including the reason for the suspension or revocation. There would be an opportunity for a permit holder to make written representation to explain why the suspended or revoked permit should be reinstated.

Permit refusal

The proposed regulations would also update the conditions under which ECCC would refuse to issue a permit. Existing criteria for refusing to issue a permit can be found in section 39 of the Export and Import Regulations. Some of the existing criteria are not directly linked with the actual considerations taken by the Minister when issuing a permit. The proposed regulations would therefore replace these criteria with new ones that better align with those considerations. These criteria include:

Extending the permit duration for hazardous recyclables

All stakeholders support extending permit validity to 3 years for the movement of hazardous recyclable material. However, there were questions regarding whether this would also be the case in the U.S. since most hazardous recyclable material is imported to or exported from the United States. Numerous stakeholders suggested also extending the permit validity to 2 or 3 years for all hazardous waste (not just hazardous recyclable material) which could improve the timeliness of permit issuance by further reducing the number of permits issued on an annual basis.

ECCC response

The authority to extend the permit validity period comes from the OECD Decision, not the Basel Convention. Therefore, it can only apply to movements of recyclable material between OECD countries. The proposed regulations would extend the maximum possible duration of a permit to 3 years for movements of hazardous recyclable material destined to pre-consented facilities within OECD countries, to reduce the administrative burden associated with the submission and review of notifications. The maximum duration of permits for movements of hazardous recyclable material to non-OECD countries and of hazardous waste would continue to be twelve months, consistent with the Basel Convention. Each country is responsible for developing its domestic legislation to implement international agreements. The proposed change to the Canadian regulations signals to other OECD countries (including the U.S.) that Canada would pursue such extended notifications for movements of recyclable material within the OECD.

With respect to questions regarding permit processing time, see the response above in section 3.2.3 for how proposed changes would decrease the time required to process notifications.

3.2.5 Tracking international movements

This sub-category has three subjects within it, as follows:

Movement document information

Stakeholders had numerous questions about how the movement document would work.  Specifically, clarification was requested for the following:

ECCC response

The first two questions have been addressed earlier in section 3.2.2 of this document. For international movements, regulated parties would be required to use ECCC’s modernized electronic system, CNMTS, to create a movement document that would include a reference number, and to submit information to ECCC. Regardless of whether another system is also used, such as a provincial system, the use of CNMTS would still be required as the federal authority. As mentioned in section 3.2.2, ECCC is engaged in regular communications with the Government of Ontario and the U.S. EPA on the development of their respective electronic systems dealing with hazardous waste and hazardous material movement. It is a longer-term goal for all three organizations to eventually develop interconnectivity between the systems to reduce burden on stakeholders. Similar efforts would be made should other provinces develop tracking systems. These systems will evolve over time to provide further gains in reducing the administrative burden associated with information exchanges between parties.

With respect to documentation required to be available during transportation for emergency purposes, the CNMTS will include a feature allowing the permit holder to print the movement document information in a template also designed to suit as much as possible requirements from other jurisdictions, as well as Transport Canada’s Transportation of Dangerous Goods Regulations. ECCC works collaboratively with the provinces and territories to share information related to  respective requirements and systems development. The long-term goal is to share relevant data with each jurisdiction through a system to system data exchange, where applicable, to reduce duplicative entry of data into separate systems by regulated parties. ECCC appreciates stakeholders’ understanding and patience during the development of these systems and the long-term process involved in achieving integration.

The mandatory information on the movement document is identified in a schedule of the proposed regulations and also in the CNMTS. Optional fields would be available in CNMTS for other information required by other regulations such as the TDGR or by another jurisdiction such as a province. While the generation of the movement document would be done in CNMTS, a paper version of the movement document (printed out from CNMTS) would be used by the involved parties during the shipment. Its layout would be similar to the current form. It is a longer term goal to eventually eliminate the paper copy used during the shipment, as systems evolves in the future. ECCC will keep stakeholders informed of progress.

Carriers crossing the border would be required to write the date and location of each border crossing in the applicable box, in Part B of the movement document. The proposed regulations would allow the flexibility to provide movement document and permit information to CBSA in advance of the shipment physically crossing the border when CBSA allows such advance transmittal of information. Carriers would not be required to indicate if a shipment is being transferred to another carrier or to a receiving facility. The printed movement document template would allow for multiple carriers to appear on the form in a similar fashion as it is currently done when the “multiple carriers” form is used.

At all times during transport, carriers would be able to immediately produce a copy of the movement document and of the permit. Each movement document would be allowed to contain many types of hazardous waste or hazardous recyclable material (i.e. lines), as long as they are shipped from the same facility, travel together at all times, and are delivered to the same receiving facility under permits held by the same permit holder. Carriers should have in their possession as many movement documents as the number of shipments on board (see Definition of Shipment below) to ensure there is always a movement document for each shipment. This is not a change from what was previously required, but the proposed regulations would further clarify these requirements to avoid uncertainty.

Definition of shipment

Stakeholders were generally supportive of including a definition for “shipment” in the proposed regulations. However they suggested that the definition of shipment should incorporate shipments that may be divided and reassembled.

ECCC response

The definition for “shipment” should clarify any ambiguity which currently exists regarding the use of this term. The draft proposed regulatory text defines a shipment as follows:

“Shipment means cargo, in one or more containers or in bulk, that is transported as a unit and that:

(a) in the case of a return to Canada or to a foreign country of origin, is shipped to the facility from which it was originally shipped or to the facility identified in the permit for the return;

(b) in the case of a movement within Canada, is shipped by a consignor to a site that is located in another province and that is owned, operated or otherwise controlled by a consignee; and

(c) in any other case, is shipped by one person from one facility in the country of origin to a receiving facility in the country of destination.”

A key element of this definition for every type of movement under the proposed regulations is the notion of “transported as a unit”. In other words, the content of the shipment that is recorded on a movement document (i.e. each type of waste or recyclable material and the associate quantity) needs to travel together (i.e. as a unit) at all times. The content of a shipment may include many types of hazardous waste or hazardous recyclable material, may be in several containers, railway carts, etc., but, in order to be recorded on a single movement document, the content described on the movement document needs to be traveling together from the time it was shipped until it reaches its destination. Conversely, if several containers of hazardous waste are to travel together at all times, they need to be recorded on the same movement document.  Therefore, a shipment cannot be divided, but many shipments could use the same vehicle for part of the travel and then be separated again later on. Each shipment would have its own movement document at all times during the transportation. Note that conditions, under paragraph (a), (b) or (c) would also need to be met depending on the type of movement.

For example, for an international shipment falling under paragraph (c), say two truckloads are being shipped from the same person, but from two distinct facilities and are to be delivered at the same receiving facility. Say also that each truck carries a number of containers filled with distinct types of hazardous waste or hazardous recyclable material each of which are registered on distinct lines of the two movement documents. For the first segment of the trip, the two truckloads will make their way to a train station; then, the two shipments will travel on the same train for a segment of the voyage and finally go back on two separate trucks to finish the voyage.  At the start, each truck would have a movement document for the shipment they carry, the train would be provided with the two movement documents and would keep them separate. After the train segment, each truck that is continuing on with one of the two shipments would be provided with the movement document pertaining to the shipment they carry. The same would be true if the two trucks had left from the same facility at the beginning. Therefore, the content of multiple shipments can be combined on a vehicle, but separate movement documents remain. The carrier simply carries more than one movement document that together describe the load on board.

Each shipment needs to be recorded on a distinct movement document. In general, quantities of the same type of hazardous waste or hazardous recyclable material collected from different locations need to be recorded on distinct movement documents, unless the total quantity can be consolidated at one location before the transboundary movement. For international shipments, a movement document can relate to one or more permits (as long as the permits are held by the same permit holder and pertain to the same shipping facility and receiving facility). A movement document can contain many types of waste and many types of recyclable material if they are to travel together at all times. Further to the example provided above, hazardous waste or hazardous recyclable material on the same truck going to different facilities would be separate shipments requiring separate movement documents.

Confirmation of disposal or recycling and interim operations

The concerns that were raised on this topic are:

With respect to interim operations, some stakeholders had concerns regarding the proposal to change the requirement to undertake the interim operation in the same country as the final disposal or recycling operation, because they felt it would affect companies who have the capacity to accumulate recyclable material in Canada and ship it to another country for the final operation. Their other concern was that the current Export and Import Regulations allow only one interim accumulator (e.g. R13) prior to the final recycling operation which restricts their ability to ensure material is segregated and recycled efficiently.

ECCC response

The conditions for requiring confirmation of disposal or recycling are outlined in the proposed regulations in sections 17 (imports) and 29 (exports). This requirement is not new, but it is being clarified in the proposed regulations.

In addition to the clarifications provided in the proposed regulatory provisions, ECCC would like to offer the following information on this subject to respond to the comments received:

The Export and Import Regulations already require that each type of hazardous waste and hazardous recyclable material on each movement document be reported once a disposal or recycling operation is completed (no matter if the operation is interim or final, both need to be reported). ECCC must receive the confirmation within 30 days after the interim and final operations are completed. Several confirmations can be provided at once (e.g. several confirmations provided at the same time or on a regular basis every 30 days). The proposed regulations would not change those requirements, but would clarify the language. However, in order to improve compliance with confirmations of disposal or recycling, new language has been introduced, in paragraphs 14(1)(j) and (k) and paragraphs 26(1)(k) and (l) of the proposed regulations. This language would need to be included in contracts to which a receiving facility or a final authorized facility is party to better describe contractual requirements on those facilities to assist the permit holder in complying with the confirmation of disposal or recycling requirements.

Once the electronic movement tracking module is available, the permit holder would be able to provide ECCC with the confirmation of disposal or recycling received from authorized facilities. The permit holder is ultimately responsible for providing this information to ECCC; again this is not a change from the current requirements under the Export and Import Regulations.

The proposed regulations do not include a requirement for the interim and final operation to be conducted in the same country. However, these situations would trigger an additional administrative step in the permitting process because ECCC would need to make sure the permit for the second leg of the movement (export or import for the final operation) is processed prior to issuing the permit for the first leg of the movement (export or import for the interim operation).

3.2.6 Returns and re-routing

Stakeholders expressed concern with the proposal that a request for the return or rerouting would require a notification, and they requested an accelerated approval process for re-routing, or that ECCC consider the possibility of including a re-routing facility in the initial notification.

The following questions were also raised:

ECCC response

The requirement for a country of export to take back a waste or material that cannot be managed as intended is an obligation of the international agreements to which Canada is a party. The proposed regulations include clarifications to the conditions and procedures to be followed for returns and re-routings. All returns would need a notification under the proposed regulations, in line with current practice. This practice was put in place to ensure that the hazardous waste or hazardous recyclable material is properly described on the return permit and the return movement document. The proposed regulations would not allow re-routing facilities to be included on the original permit as re-routings are exceptional measures that should only be used in unforeseen circumstances. It is noteworthy, however, that new features of the CNMTS for notifications, to be launched in 2021, would provide the ability for permit holders to request, track, manage and obtain their return permits and re-routing letters online.

Re-routings do not require a new permit under the current Export and Import Regulations and this would not change under the proposed regulations. The proposed regulations would better describe the information to be provided to ECCC to request a re-routing and the requirements that need to be fulfilled. Once ECCC receives re-routing information, consent from the authorities of the importing jurisdiction need to be obtained. Once consent is obtained, ECCC issues a re-routing letter that allows the re-routing to another authorized facility. This letter is added to the movement document. To re-route a refused shipment to another facility in the importing country, the information provided to ECCC would include the disposal or recycling operation at the other facility which does not need to be the same D or R code that was provided in the export permit. Also, the provisions of the proposed regulations would clarify that the other facility needs to perform a final disposal operation or a final recycling operation. This final operation would need to be completed within one year after the re-routing arrangements are completed. Note that the international agreements do not differentiate between interim and final operations, so once an interim operation has been completed, the waste or material is considered a domestic issue. 

3.3 Definitions and exclusions

There were a number of clarifications and changes presented within this sub-category of the discussion document, as follows:

3.3.1 Toxicity characteristic leaching procedure

Overall, there were few comments received on this proposed change, but one stakeholder indicated they were not in favour of the full application of this methodology for recyclable materials because recyclables are usually kept contained with limited contact with the environment, runoff or groundwater, and recyclables are not intended to be landfilled. The stakeholder felt that the TCLP method is best suited for waste that is going to be landfilled and exposed to the environment. The stakeholder is concerned that this methodology would impact their recycling business negatively, as there is significant potential for more types of material being considered hazardous as a result of the full application of the testing method, but could not identify specific classes of materials that would be affected until engaging in laboratory testing of these materials which could be expensive. 

ECCC response

The TCLP methodology is used as a means to evaluate the mobility of certain substances in waste and recyclable material. After giving close consideration to the comments received, ECCC maintains its proposal to reference the entire methodology for both international and interprovincial movements, so that waste or material undergoing testing would need to be shredded to meet the procedure’s specific particle size requirements. This approach would harmonize the use of the methodology with other jurisdictions in North America. The amount of additional waste or recyclable material that would be captured by this change alone is not expected to be significant given that the methodology is applied in such a way in the U.S. and in a number of Canadian provinces. Stakeholders are welcome to provide specific information on additional types of waste and recyclable material that would be regulated because of this proposed measure and on the potential impacts of this measure.

3.3.2 Small quantity exclusion for mercury

Two stakeholders raised concerns with respect to the proposed removal of the small quantity exclusion for mercury (currently 50 mL per shipment in the Export and Import Regulations) combined with the harmonization of definitions between international and interprovincial movements. One stakeholder pointed out that an absolute zero was not practicable given the mixed nature of some of the waste and material. Another stakeholder pointed out that a small quantity exclusion would be useful to collect small quantities of mercury waste or recyclable material across Canada to direct them to proper disposal or recycling.

ECCC response

The proposed regulations would remove the small quantity exclusion for mercury given the high toxicity of mercury and the environmental and health related problems it can cause. The development of the Minamata Convention, which came into force in 2017, recognized globally the high toxicity of mercury. Domestically, the Products Containing Mercury Regulations (2014) were put in place to prohibit the manufacture and import of products containing mercury in Canada. The removal of the threshold for exclusion from the definition of hazardous waste or hazardous recyclable material aligns with these efforts to strengthen the controls on mercury. Additional information from stakeholders is welcome on specific waste and recyclable material that would be regulated because of this measure and on potential impacts of this measure.

3.3.3 Adjustment to recycling operations R14

The following questions of clarification were raised with respect to the change to R14:

A number of stakeholders supported this alignment with the Basel Convention and OECD Decision which also better aligns with the U.S.

ECCC response

The proposed change is to only remove a few words from R14, but the rest would remain unchanged. However, note that under the proposed regulations, the numbering of disposal and recycling operations would also be adjusted to align the numbering with the numbering used in the Basel Convention and OECD Decision. R14 in the current Export and Import Regulations would become code “RC1”, as this recycling operation is only used in Canada.

The text that would be removed is the part that reads “use or re-use of a recyclable material”. This change is proposed to further align regulatory provisions with international guidelines under the Basel Convention. This change may result in some recyclable material no longer being captured and defined as hazardous (such as used material that is to be used directly in another process that is not listed as a recycling operation in Schedule 1 of the proposed regulations). For example, batteries being exported for re-use would no longer fall under the definition of hazardous recyclable material; as opposed to batteries being exported for metal recovery (R4) which would be captured.

3.3.4 Other clarifications

Schedule 4 codes

There were some questions of clarification surrounding ECCC’s proposal with the Schedule 4 codes, commonly referred to as the F&K lists. Stakeholders felt it was important to keep the codes in a schedule to maintain alignment with the U.S. definition of hazardous material, in addition to providing information about the generating process of the waste which is also important for some provincial hazardous waste facility permits.

ECCC response

ECCC agrees that the list of hazardous waste and hazardous recyclable material from specific and non-specific sources (“F&K list”) plays an important role for harmonization with U.S. legislation. These codes would still be required under the proposed regulations on notifications and movement documents. These codes can be found in Schedule 12 of the proposed regulations. The codes are simply no longer referenced in the definition of hazardous waste and hazardous recyclable material, but this has no impact on those definitions because these wastes and recyclable materials are already captured if they meet the criteria of Classes 2 to 6, 8 or 9 of the TGDR. Therefore, in practice, this proposed change would have no impact.

New definition for interim and final disposal and recycling operations

Stakeholders expressed a need for clarity regarding the definition of interim and final disposal operations, as well as responsibilities and timelines for sending these confirmations to ECCC.

ECCC response

The proposed regulations would include specific definitions for interim and final disposal and recycling operations, as well as for receiving facility. These definitions would be introduced to simplify the language of the proposed regulations and clarify which operations are considered interim as opposed to final as well as to distinguish between the receiving facility and the other authorized facilities that conduct a final operation after an interim operation was conducted by the receiving facility.

The use of these defined terms would also help clarify the time allowed for completing the disposal or recycling operation. For operations completed at a receiving facility, an interim operation would need to be completed within six months after the date on which the shipment arrived at the receiving facility, while a final operation would need to be completed within one year after the date on which the shipment arrived at the receiving facility. When the final operation is conducted at an authorized facility other than the receiving facility, this final operation would need to be completed within eighteen months after the date on which the shipment arrived at the receiving facility. This wording provides more clarity with respect to the moment at which the periods start and it provides additional flexibility in the timing to complete the operations when two authorized facilities are involved.

As it is currently the case under the Export and Import Regulations, the permit holder would be responsible for providing the confirmation of disposal or recycling to ECCC. Once the electronic tracking module of the CNMTS becomes available, it will be possible for the permit holder to provide this information to ECCC electronically.

As it was already mentioned in section 3.2.5 above, the proposed regulations would introduce new language, pertaining to the confirmation of disposal or recycling, to be included in contracts to which a receiving facility or a final authorized facility is party (see paragraphs 14(1)(j) and (k) and paragraphs 26(1)(k) and (l) of the proposed regulations). This language would better describe the contractual requirements on those facilities to assist the permit holder in complying with the confirmation of disposal or recycling requirements.

Adding CAS numbers for substances in schedules of the proposed regulations

There was support for the addition of CAS numbers among stakeholders, but also some questions of clarification: whether the CAS numbers would be required on notifications and movement documents and whether the CAS numbers would be automatically added by the modernized electronic system.

ECCC response

CAS registry numbers would be added to the schedules, where applicable, on an indicative basis only to improve searches for substances in the schedules and facilitate their identification in a waste or material. The sole purpose for this proposed change is to help regulated parties identify substances. The textual description of substances listed in schedules to the proposed regulations would remain the basis of what is regulated. CAS numbers would not be required on notifications or on movement documents. Drop down menus of the CNMTS would show the CAS numbers, where applicable, but the CAS numbers would not be included on electronic notifications and movement documents.

Documentation requirement for excluded recyclables within the OECD

Stakeholders expressed concern for the proposed requirement to provide documentation for excluded recyclables. Generally, they were not supportive; indicating that only regulated material should be documented, not non-regulated material. Others requested specific guidance on what type of documentation would be required to confirm the exclusion, and whether documentation would need to be submitted to ECCC or not.

ECCC response

Subparagraph 4(2)(g)(iii) of the proposed regulations was drafted to avoid creating additional burden as much as possible. The intent is that existing documentation that normally accompanies such shipments (e.g. regular paperwork required by CBSA or the importing OECD country, the carrier’s bill of lading, etc.) would be sufficient to satisfy this requirement. Documentation would not be required to be submitted to ECCC. This documentation should simply accompany the shipment and be presented to support any claim from the exporter or importer that the material in the shipment met the exclusion. ECCC does not intend to develop a form for this requirement to allow as much flexibility as possible.

New exclusion for waste and recyclable materials from normal operations of a ship

There were not many comments received on this proposed change. One stakeholder noted that they were in support of the new exclusion.

ECCC response

The proposed regulations would include a new exclusion for hazardous waste and hazardous recyclable material generated through the normal operations of a ship. This exclusion would further harmonize the proposed regulations with the Basel Convention, which excludes this waste under article 1, paragraph 4, of the Canada Shipping Act, 2001 where the discharge of the excluded waste or recyclable material is controlled. The new exclusion appears under paragraphs 2(2)(e), 4(2)(e) and 4(3)(e) of the proposed regulations.

New exclusion for residue in empty containers

Stakeholders pointed out that it is unclear whether residue in empty containers is excluded under the current Export and Import Regulations and whether it would be excluded under the proposed regulations. They also pointed out that residue in empty containers are currently excluded under the TDGR, the U.S. rules, and Ontario’s regulations.

ECCC response

The proposed regulations would add a new exclusion for waste or recyclable material that is to be transported in a container after the contents of that container have been removed to the maximum extent feasible and before the container is either refilled or cleaned of its residual content. This exclusion would clarify that such waste or recyclable material is not captured by the definitions of hazardous waste and hazardous recyclable material. This exclusion can be found under paragraphs 2(2)(b), 4(2)(b) and 4(3)(b) of the proposed regulations.

Clarification on exclusions related to Schedule 8 of the Export and Import Regulations

One stakeholder wanted confirmation that Schedule 8 exclusions under the Export and Import Regulations would remain as they are.

ECCC response

Former Schedule 8 in the Export and Import Regulations would be Schedule 9 in the proposed regulations. The only change to that schedule would be adjustments to the wording of item 3, to make it clearer given the additional items for electronic equipment and batteries added to Schedule 6 of the proposed regulations (formally Schedule 3 of the Export and Import Regulations).

3.4 Exports of waste and recyclable material containing PCBs

Under the current PCB Waste Export Regulations, Canadian owners of PCB (polychlorinated biphenyl) waste can export such waste to the U.S. for treatment and destruction (excluding landfilling) when the waste is in a concentration equal to or greater than 50 milligrams per kilogram (mg/kg) and when the requirements of those Regulations are met. The 50 mg/kg threshold has been the generally accepted threshold for several decades and is used by all Canadian jurisdictions, as well as in United Nations treaties, the European Union and the United States. However, since July 1997, the import into the United States of waste containing PCBs at 2 mg/kg or above is effectively banned. Therefore, there are currently no exports from Canada of waste containing PCBs.

Stakeholders were in favour of ECCC’s proposal to remove the partial prohibition on exports of waste containing PCBs in a concentration equal to or greater than 50 mg/kg. This would provide access to more facilities that can ensure their safe destruction in an environmentally sound manner, while continuing to honor international agreements. However, some stakeholders suggested that the temporary on-site storage limit of PCB waste is not aligned with the length of time it typically takes to apply for and receive an export permit.

ECCC response

The proposed regulations would remove the partial prohibition on exports of waste containing PCBs in a concentration equal to or greater than 50 mg/kg. This measure would provide access to the nearest authorized facility that can manage PCBs in an environmentally sound manner. Similar to current requirements, PCBs in a concentration greater than 50 mg/kg would be required to be destroyed or irreversibly transformed. This would be consistent with the provisions of the Stockholm Convention and current regulations under CEPA. Exports and imports of PCBs would still require a permit, as well as a movement document and confirmation of disposal.

With respect to timelines, PCBs managed in Canada would still need to comply with the PCB Regulations. A regulated party would need to apply for a permit in advance of the planned shipment of PCBs offsite or comply with storage requirement. As noted previously, a recent update to the notification module of the CNMTS has significantly improved permit application review timelines and should have alleviated this concern.

3.5 International movements of electrical and electronic equipment

With respect to the options presented in the discussion document for how to list designated equipment, generally, stakeholders preferred the least prescriptive list to allow the broadest inclusion possible. Stakeholders pointed out that a prescriptive list of equipment would quickly become obsolete. Also, a broader type description would better align with the Basel Technical guidelines.

There was some confusion as to whether the designation would apply to equipment destined for reuse, repair and refurbishment as well as equipment destined for recycling or disposal. One stakeholder was opposed to distinguishing between equipment coming from OECD countries or non-OECD countries.

There was support for listing batteries as a separate item so that they are clearly regulated for international movements, but one stakeholder was concerned that this would impact their Permit of Equivalent Level of Environmental Safety (PELES) permits to move batteries unregulated across provinces and territories for the purposes of recycling. Clarity was requested on any differences between international and interprovincial movements of batteries.

ECCC response

In line with the comments received, the proposed regulations would use a broad category to designate the equipment that would be hazardous when destined for a disposal or recycling operations. An item with code “HAZ7” would be added to Schedule 6 of the proposed regulations (formally Schedule 3 of the Export and Import Regulations) that would read as follows “Circuit boards and display devices and any equipment that contains them”. ECCC welcomes any further feedback from stakeholders on this proposed description.

The proposed regulations would not capture used equipment destined for reuse, repair, or refurbishment. There are still ongoing international discussions under the Basel Convention to determine the appropriate approach to deal with such equipment. Designated equipment would only be captured if destined for a disposal or recycling operation as set out in Schedule 1 of the proposed regulations. The exclusion for designated equipment moving within Canada and OECD countries would be maintained.

In addition to the above, the proposed regulations would also list rechargeable and non-rechargeable cells and batteries in Schedule 6, as Item 8 (HAZ8 code) to ensure that all types of batteries and cells are regulated when destined for a disposal or recycling operation. Therefore, all batteries would be captured for both international and interprovincial movements, except for small quantities, personal effects or if mingled with non-hazardous household waste. However, ECCC will consider requests to update existing PELES, should they still be warranted in relation to the proposed regulations. Please inform ECCC as soon as possible should an existing PELES need to be updated prior to the coming into force of the proposed regulations. ECCC welcomes additional feedback from affected stakeholders on this topic.

3.6 Movements between provinces and territories

Within this category, there are three subjects:

Aligning definitions between international and interprovincial movements

A number of stakeholders expressed concern that the alignment of hazardous waste and hazardous recyclable material definitions between international and interprovincial movements would result in an increased amount of waste and recyclable material classified as hazardous which are currently not classified as such when moved interprovincially (e.g. used oil filters, used medical equipment). This increase would mainly result from the application of Schedules 3 and 5 of the Export and Import Regulations to interprovincial movements. Some stakeholders were particularly concerned with Item 60 of Schedule 5 (creosote) and its impact on interprovincial movements of used railway ties. Stakeholders noted that the alignment would result in additional costs because of the need to complete a movement document and use authorized carriers to transport shipments interprovincially and that this change could limit recycling options because the recyclable material would be captured as hazardous.

Some stakeholders holding a Permit of Equivalent Level of Environmental Safety (PELES) to move hazardous waste and recyclable material interprovincially wanted to know if they would be able to continue using their PELES under the proposed regulation.

The following suggestions were also made:

There were also specific questions as to whether the proposed regulations would exclude the following categories of waste:

ECCC response

The proposed regulations would result in additional waste or recyclable material being regulated for interprovincial movements as definitions are harmonized between international and interprovincial movements. It is important to have consistent definitions for hazardous waste and hazardous recyclable material for all types of transboundary movements under CEPA. This is one of the main objectives of the proposed regulations. However, ECCC will consider requests to update existing PELES, should they still be warranted in relation to the proposed regulations. Please inform ECCC as soon as possible should an existing PELES need to be updated prior to the coming into force of the proposed regulations. ECCC welcomes additional feedback from affected stakeholders on this topic.

With respect to the exemption for electrical and electronic equipment moving interprovincially, this exclusion currently exists under the Export and Import Regulations and applies to recyclables moving within OECD countries. In harmonizing the definitions between international and interprovincial movements, the OECD exclusions are being applied to interprovincial movements as Canada is an OECD member country.

ECCC gave careful consideration to the proposals from stakeholders for additional exclusions. Given that one of the main objectives of the regulatory initiative is to harmonize definitions of hazardous waste and hazardous recyclable material for international and interprovincial movements, the proposed regulations would apply elements of Schedule 3 and 5 of the Export and Import Regulations to interprovincial movements. Further work to review these definitions is currently ongoing at ECCC and internationally. The Basel Convention recently launched a review of a number of its annexes, which may affect the scope of the Convention. ECCC will consider potential exclusions as well as new additions to the definitions more broadly as part of this work. ECCC welcomes additional information from stakeholders on these issues.

With respect to the specific questions related to household waste and material being returned to manufacturers, the proposed regulations would include the following exclusions to avoid having, for example, interprovincial shipments of mixed municipal solid waste captured as hazardous under the proposed regulations:

Paragraphs 4(3)(c) of the proposed regulations would read:

“...hazardous waste does not include anything that is mingled with non-hazardous waste or non-hazardous recyclable material and collected as part of the regular collection of non-hazardous waste and non-hazardous recyclable material by or on behalf of a municipality unless it is separated from that waste or recyclable material during or after the collection”;

and Paragraphs 4(3)(d) of the proposed regulations would read:

““...hazardous waste does not include anything that is personal or household waste of the individual who transports it”.

These exclusions also apply to international movements (see paragraphs 2(2)(c) and (d) and 4(2)(c) and (d) of the proposed regulations).

With respect to materials being returned to a manufacturer or supplier, a specific exclusion was not warranted as these materials would not be captured unless they are moved across a border for the purpose of performing one of the disposal or recycling operations set out in Schedule 1 of the proposed regulations. This is usually not the case when they are being returned to the manufacturer.

Requirements for a movement document

Although many stakeholders supported not having a prescriptive movement document for interprovincial movements, but rather a list of the information it should contain, one stakeholder preferred a prescriptive movement document so that omissions would be avoided. Stakeholders noted their strong preference for not having a prescriptive movement document form in the regulations. They also voiced the need for an electronic movement document system for interprovincial movements to simplify the tracking of all types of movements. At least one stakeholder was concerned that they would have a greater burden to identify all the separate requirements from provincial and federal authorities if different movement documents were utilized.

The following suggestions were made:

ECCC response

The mandatory information on the movement document to fulfill the requirements of the proposed regulations for interprovincial movements would be identified in a schedule (Schedule 4 of the proposed regulations). The movement tracking module of the CNMTS will include functionalities to generate a movement document for interprovincial movements including the movement document reference number. Additional fields would be available on a printable movement document form to manually enter information that may be required by other jurisdictions or the TDGR. At all times during transport, the carrier would need to be able to immediately produce a copy of the movement document. Each shipment would require the completions of a separate movement document (see the definition of shipment in section 1 of the proposed regulations and further information provided in section 3.2.5 of this document).  

As indicated previously, ECCC works collaboratively with provinces and territories to share relevant information related to requirements and systems development. The objective is to share relevant data with each jurisdiction and where applicable, through a system to system data exchange. Stakeholder engagement on the functionalities of CNMTS will continue until the system is fully developed and finalized.

Record retention

A few stakeholders expressed concerns with the requirement to keep copies of movement documents for 5 years as opposed to the 2 years currently required under the Interprovincial Movement of Hazardous Waste Regulations.

ECCC response

The proposed regulations would require that movement documents be kept for five years. The five-year retention period is proposed in an effort to standardize the record retention period for all regulations under CEPA.

4. Costs of regulatory proposal for businesses

Two stakeholders indicated that ECCC’s cost assumptions were reasonable for the proposed regulatory changes. However, others were of the opinion that that they were under-estimated.  They specifically made reference to the time estimated to review the proposed regulations and train employees in relation to the changes to the requirements. Also, some pointed out that the additional costs related to the harmonization of the definitions of hazardous waste and hazardous recyclable material between international and interprovincial movements were not adequately represented. However, no figures were provided to assist in better estimating those costs.

Some stakeholders pointed out that features under development for the movement tracking module in the CNMTS such as prepopulating movement documents with information from the permits would potentially reduce the administrative burden.

ECCC response

ECCC has adjusted its estimates for the administrative costs and compliance costs of the proposed changes. The time required to get familiar with the requirements of the proposed regulations has been increased and administrative and compliance costs estimates related to interprovincial movements have been added to reflect that additional waste and recyclable material would be classified as hazardous, which would increase the number of movement documents to be completed for those movements, and that those wastes and recyclable materials would need to be transported in accordance with the Transportation of Dangerous Goods Act and Regulations.

Note that the development of an electronic system for permitting and tracking movements is progressing in parallel with this regulatory initiative. Costs have already been incurred for this multi-year project. As a result, the system’s development costs and savings were not taken into consideration.

The revised estimates can be found in the Regulatory Impact Analysis Statement that has been published in Part I of the Canada Gazette with the proposed regulations. ECCC welcomes additional information on those cost estimates.

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