Workshop Discussion
Much of the discussion on definitions focused on harmonization. Specific recommendations included the need for a clear definition of treatment (to clarify rules on completion of treatment), and a distinction between broker/agent and generator in the regulations.
There was mixed support for the decoupling of the definitions for recycling and disposal with two polarized points of view presented at most of the sessions:
- The desire on the part of industry to legitimize and remove the stigma attached to the recycling industry and to remove unnecessary impediments to the flow of recyclable materials;
- The concern that recyclable material may not in fact always be recycled, or may not always be recycled in an environmentally sound manner, and the need for controls to avoid "sham recycling".
As CEPA 1999 was recognized as having resolved the debate on whether to have two definitions in favour of doing so, considerable debate took place on the balance to be struck in reconciling these two potentially polarizing positions.
There seemed to be general support for classifying material according to how it will be managed as opposed to how it could be managed (i.e. treat material as recyclable only if it is, in fact, recycled). NGO participants opposed the classification of materials as recyclable when their treatment creates hazardous waste residues. The merits of establishing criteria like a minimum "percentage of recycled material" for something to qualify as a recyclable were discussed. Several participants noted concerns with such an approach. For example, a participant in Edmonton argued that this would be a disincentive to recycling processes like the recovery of palladium from catalysts, where often less than 1 % of the material is recovered. An NGO participant suggested criteria that preclude materials that generate by-products containing CEPA toxic substances from being classified as recyclable. A number of participants argued that criteria should be material-specific, and could be linked to ESM criteria. Some industry representatives proposed that the distinction between waste and recyclables is significant enough to merit a separate regulation or, at least, two separate sections of the regulation.
During the workshop a four-level approach to classification based on the work of the CCME on definitions, tests and criteria was presented:
- Determination of whether the material is a waste or a recyclable based on where it is going;
- Determination if the material is a listed waste or recyclable material;
- Determination if the material exhibits defined hazardous characteristic; and
- Provision for a case-by-case testing out mechanism or condition exclusion.
In Edmonton and Toronto some participants voiced strong opposition to the hierarchy of the approach presented and the requirement to test-out. Some suggested that the approach should be more flexible with lists only required by those who do not want to test for hazardous characteristics. Some argued that the proposed hierarchy shifts EC's approach from an oversight role to a more "European" approach. Many urged EC to avoid burdensome test-out process like the de-listing protocol in the US. As one participant pointed out, a burdensome system creates a disincentive for reducing the hazard associated with the wastes and recyclable materials that generators produce. NGO participants suggested that the process should be transparent and also provide a mechanism for listing wastes.
Over the course of the workshops there were a number of proposals suggesting that lists should be included in the regulations: Basel Annexes XIII and IX; just Annex XIII; OECD Amber and Green Lists; and RCRA. Some participants suggested a protocol for characterizing waste. One participant suggested that the protocol be made specific to the individual management option specified (i.e. R or D option) and possibly linked to ESM. Some industry officials suggested that recyclable materials should not be subject to leachate testing if they are never going to be sent to landfill. Other participants believed this test remained important in relation to storage of recyclables on site or potential accidents. It was also recommended that EC remove imprecise R and D operations from the R and D lists. NGO representatives recommended that energy recovery should not be included in the definition of recycling operations.
Much of the discussion on this topic centered around the list of criteria included in the discussion paper for distinguishing between waste/recyclables and products. One participant suggested that this topic is complex enough to merit its own discussion paper and consultation process. Some participants found the criteria too vague and discretionary. There were conflicting opinions on whether the criteria should be included in the regulations or in a guidance document. It was suggested that EC should look more broadly at the management of hazardous materials and that the linkages in the regulatory regime between wastes/recyclables and products should be more explicit. More examples of how the criteria are used was thought to be needed before more meaningful comments could be provided.
At all sessions participants had questions concerning the relevance of the Basel and OECD lists. EC was requested to provide guidance on classification with the amended regulation, including which lists are relevant and how they relate. Participants encouraged EC to review international lists prior to making any decisions on what should be listed as a waste in Canada, and to make a concordance table cross-referencing Canadian, US, and International lists. There was no consensus on which lists should be included in the regulations.
There was general support for the principle of ESM. Both industry and NGO participants suggested that ESM should be applied at the facility level. Due to the early state of policy development on this issue and lack of detail provided in the discussion paper, participants questioned whether anything meaningful could be implemented in this regulation at this time. Some suggested that it would be premature to proceed with ESM implementation in Canada given the uncertainty on the international scene.
At a number of sessions EC was encouraged to use a multi-stakeholder process to establish Canadian criteria for ESM. There was some debate over who should set ESM standards: government or industry, but there was general agreement on the need for a backstop of regulation. One participant suggested that there should be clear CCME standards for ESM and not discretionary criteria. In Vancouver, a "non-circumvention criterion" was proposed to prohibit imports or exports where the receiving jurisdiction has a lower standard of management for a particular waste or recyclable material. As with the criteria for distinguishing between products and waste/recyclables, participants expressed concern about the Minister's discretionary powers, and suggested that these be subjected to a review or appeal process. Some participants expressed concern over both the "extraterritoriality" of imposing ESM on foreign importers and the potential erosion of provincial powers. Others had concern about leaving ESM to the discretion of the provinces, due to NAFTA considerations.
A number of industry participants supported the idea of a voluntary program to implement ESM supported by incentives. The importance of oversight/verification in such a regime was stressed, and EC was asked to identify who would be responsible for overseeing ESM at the domestic and international level, and to ensure that adequate resources would be in place.
During the workshop presentations, EC officials described one of the triggers for implementing ESM was the increase of imports due to perceived lower standards in Canada, specifically for landfilling. It was suggested by some stakeholders that waste and recycling options are generally environmentally sound, and that the authorities on ESM should be applied where problems exist and not universally.
At all sessions, EC was asked to provide clarification concerning the intent of this provision: is it to reduce the generation of waste, to reduce waste exports for disposal, or to promote diversion of wastes to recycling when possible? The answers to this question will impact the design of this requirement in the regulation. Participants suggested that implementation of these powers could create an incentive to send waste to inappropriate facilities or to encourage volume reduction over hazard reduction. While some industry representatives suggested that this requirement would be difficult to implement (particularly for small quantity generators and brokers), many NGO participants supported its intent but suggested that its scope of application was too limited and should be expanded to include recyclable materials. Some NGO's also complained that this issue has been structured to protect countries exported to and not Canada. EC was urged to ensure that waste reduction plans are part of a comprehensive integrated approach and that they take into account other pollution prevention planning initiatives and NPRI. A number of participants were concerned that waste reduction plans were an "end of pipe" approach and, to be effective, these provisions must take a life cycle approach that considers upstream activities, in particular including product design. There were a number of specific suggestions for implementing the authority for waste reduction plans, including:
- That they be targeted at specific sectors or to those areas where "problems" exist, based on an analysis of import and export data;
- That there be a trigger level, like NPRI;
- That they not be applied directly to small quantity generators, but that codes of practice and educational resources be developed and distributed when they apply for a permit;
- That there be a requirement to use best available technology; and
- That EC consider starting with a pilot project to test the concept.
Participants at all sessions asked how EC intends to apply the insurance and liability requirements in the regulation. It was suggested that EC should define the problem these provisions will address. Participants explained that, currently, insurance requirements are usually met by the carrier and only provide coverage during transport. At the Montreal session, it was stressed that responsible operators carry adequate insurance, and that the real problem is one of enforcement with those operators that do not carry the required level of insurance. Participants at all sessions questioned how the current insurance levels were set. It was suggested that the amounts seemed low, and it was recommended that they should be based on risk and hazard, not on whether the material is destined for disposal or recycling. The proposal to apply a rate per tonne as per the Basel Protocol was not widely supported. EC was encouraged to consult with the insurance industry in determining insurance requirements.
There was broad support for the concept of residual generator liability. However, most participants suggested strongly that it not be modeled on the US "Superfund" regime. Some suggested that apportioning liability is a very complex topic and would be difficult to enforce. It was recommended that there be a joint liability scheme shared between the generator and the trucker and that this could be incorporated into the contract.
At those sessions where participants commented on this issue, NGO's expressed strong support for Canada to ratify the Basel Ban amendment. In Toronto, EC was asked when it will make a decision on this issue. One participant indicated that there had been UN studies that suggested that the Basel ban amendment would have the opposite effect from its intention.
There was general support for the amendments to OECD Decision C(92)39 presented at the workshops. EC was asked to consider increasing the small quantity exemption to one drum (205l) for recycling operations to allow for testing. It was also suggested, however, that for some high risk materials there should be no small quantity exemption. At the session in Moncton, a question was raised as to where the substances on the disbanded Red List will be placed (i.e. under full Basel controls or under the OECD amber list controls).
Although there was general support for the concept of PELES, some participants argued that they would be unnecessary if the regulation was right in the first place. NGO representatives were concerned that they could create loopholes through a politicized decision-making process. EC was urged to harmonize this process with that in the Interprovincial regulations. Participants who had experience with the TDG permitting process found it very time consuming and cumbersome. It was recommended that EC establish adequate resources to administer the program, set a specified time for consideration of a permit, and, due to the discretionary nature of this authority, that there be a review or appeal mechanism. A number of participants wanted to ensure that there was provincial input to the process. There were several of suggestions for openness and transparency in the process, including the requirement for public hearings or posting PELES applications in local and major newspapers. Questions were raised about the precedential nature of PELES -- whether the issuing of a permit will create rights for others in similar situations. Some recommended that provision be made for emergency PELES. Some also recommended that EC should incorporate the provisions of some PELES into the regulation over time.
Participants generally agreed that carrier requirements are addressed by TDG and provincial standards and that these should not be duplicated. Training and testing for requirements specific to this regulation (i.e. documentation and customs requirements) would be appropriate - possibly as an endorsement added to a TDG certificate. One recommendation was for EC to develop standard carrier numbering modeled on the U.S. system. Participants at one session supported the idea of a list or registry of approved carriers. It was recommended that EC provide more guidance on requirements at the border.
Issues concerning the completion of shipment were seen as primarily administrative, requiring clear direction from EC. It was suggested that the particular problem of U.S. receivers not handling Canadian manifests properly would be alleviated through an e-filing and tracking system. One participant recommended that those facilities that do not comply should be "de-certified", and not permitted to receive future shipments. Participants who had experienced trucks being tied up for extended periods of time as a result of off-specification shipments, suggested a mechanism to allow for the timely return or rerouting of shipments without penalty.
There were a number of suggestions from participants to provide flexibility on the proposed one year time limit for completion of treatment, including: allowing an increase of up to three years for recycling operations or setting up a mechanism for granting an extension of the time limit. The difficulty in tracking the treatment of liquids and some solids that are "bulked" was also discussed with no specific suggestions made except that EC should provide guidance.
At each of the sessions there was a discussion of the trade-offs between the need for business confidentiality and the need for local citizens to know what is going on in their communities. Many industry participants felt that adequate information is available already through provincial facility reporting requirements and NPRI. A number of NGO participants indicated that it is difficult to find and interpret this information, and that this is complicated by different policies across Canada on the release of information. It was suggested that there are two levels of information: aggregate public policy reporting information, and more specific local information. An NGO representative in Toronto suggested the type of information required: type and quantity of waste, importer and exporter, and location of facility. Industry representatives countered that final destinations can be confidential business information, and urged EC to provide context when presenting information to the public.
Other issues touched on briefly during the workshops included clarification of additional definitions and improving enforceability, as well as reducing paper burden. There was broad support for the use of e-filing and a specific suggestion in Vancouver to set up a bar coding system modeled on those used by couriers including a centralized notice and tracking system.
Page details
- Date modified: