Written Submissions

• 5.1 Definitions
• 5.2 Environmentally Sound Management
• 5.3 Waste Reduction Plans
• 5.4 Changes to International Agreements
• 5.5 PELES
• 5.6 Miscellaneous Issues

Environment Canada received eight written submissions following the workshops: 7 from industry representatives including both individual companies and industry associations, and one written submission from CEN endorsed by 14 ENGOs. Five of the submissions addressed all or most of the issues raised in the discussion paper, and two submissions commented on specific issues that applied to those organizations. Many of the submissions reiterated points raised during the workshops and so only those points unique to the written submissions are summarized below.

A number of the written submissions from industry supported the decoupling of recycling and disposal, but argued that this must be accompanied by a relaxation or removal of controls on recyclable materials. EC was urged to deal openly with the issue of residuals and to ensure that generation of hazardous residuals does not affect the status of bona fide recycling facilities. Two written submissions suggested that, if it can be demonstrated that a receiving facility meets ESM standards, then recyclable material destined for that facility should be treated as a product (and not be subject to the regulations).

The NGO submission stressed that the focus of the regulations should be on reducing hazardous waste, that this would be best achieved through reduced primary production, and that the regulations should not create incentives for increased recycling that does not lead to reduced primary production. During the workshop many NGOs opposed a more lax regime for hazardous recyclable materials unless "recycling" is strictly defined to mean that no hazardous waste residue is created as a result of the recycling process.

One of the written submissions from industry made some very specific proposals for classification that had not been discussed during the workshops:

• The regulations should clearly delineate two separate management systems: one for materials destined for final disposal and a separate system for materials destined for recycling. It is feasible that one particular material, (for example, end-of-life electronics) could be considered a waste in one instance when destined for landfill and would be subject to all applicable waste regulations, but when destined for recycling would be exempt from such waste regulations. This, it was suggested, would be a system similar to the US Universal Waste Rule under RCRA;
• Once the management of the material has been determined, it was suggested that specific conditions, tests or lists be applied to each management scenario. The key is that these conditions, tests, and lists should be differentdepending on the material and the management of the material. In particular, the application of the leachate test to materials that will never be landfilled was presented as a completely inappropriate test of hazard for recyclables. In short, it was argued that Environment Canada should first determine the management scenario, followed then by the development of conditions, tests and or lists appropriate for that management scenario;
• Facilitate recycling if facilities can prove ESM: If a facility can prove that it practices ESM (however it may evolve), the regulation should allow the facility to import recyclable materials in an unfettered manner. The onus to provide information to EC to prove ESM would fall to the facility, perhaps as part of its provincial permitting process.

An industry submission provided some suggestions on clarification of waste/non-waste criteria:

• Rather than asking questions that demand a yes or no answer, the criteria should assess the degree of risk to human health and the environment;
• EC should clarify its criteria of "sufficient transformation". According to the submission, it is not clear how much work, if any, is required to transform a waste into a product.
• Any criteria developed should be applied to the exporter of the material rather than the initial producer of the material. If the criteria are always applied to the initial generator of the waste it will be unclear when a waste from one industry could ever be recognized as a product, a valuable raw material for another industry.

One industry submission suggested that recyclable materials should be exempted from the ESM provisions in the regulation, while another suggested that ESM could be the means for exempting recyclable materials from notification requirements (as described above in 5.1.2).

The NGO submission made the following recommendations concerning ESM:

• The ESM provisions must be used to raise standards to the highest and not the lowest common denominator for the whole system. Special concern should be given to ESM requirements for storage and treatment of recyclables to balance the effect of "decoupling."
• Clear ESM criteria for treatment and disposal facilities that are at least as strong as those in the U.S. will also be necessary for hazardous waste import challenges under NAFTA and FTAA. To achieve this, a strong definition of ESM is necessary.
• ESM could be incorporated into an international certification system to ensure uniform high standards for waste movements but should only apply to OECD countries where controls and verification are possible.

While one industry submission questioned how this provision could be applied to facilities with "bulk" hazardous waste, another suggested that these companies be challenged to find markets for these materials as either products or recyclables, or they could become brokers and attempt to identify beneficial societal uses for their "wastes/materials" gathered.

The NGO submission had a number of specific points concerning waste reduction plans:

• The EIHWR regulations should be reciprocal; importers should show how they plan to reduce the generation of wastes they dump in Canada.
• Recyclable wastes remain a threat to the environment and should therefore also require reduction plans.
• Waste reduction plans, above and beyond the concept of Environmentally Sound Management, need to be partnered with pollution prevention programs (CEPA 1999) and any current or emerging provincial plans for waste reduction (CCME). Waste reduction plans should be developed to include all upstream linkages to the generation of the waste and be aimed at waste avoidance and elimination. All factors including manufacturing and production regimes, marketing and consumption patterns, alternative products, component materials and production techniques, trade regulations and international trade agreements (NAFTA, FTAA), should be considered in a waste reduction analysis and strategy;
• Voluntary waste reduction programs should not be substituted for regulated ones unless they are more stringent and proven dependably accountable.
• Each waste reduction plan must include specific reduction targets with timelines. To supply some level of accountability, above and beyond government compliance monitoring, these plans and their targets must be available to the public.
• Future permit applications from the same applicant should be refused if reduction targets outlined in waste reduction plans have not been met.
• Diversion of hazardous wastes from disposal into the recycling stream as an alternative to (or in avoidance of) reduction should be evaluated for its impact on overall reduction goals and net environmental impacts.

One of the industry submissions suggested that shipments of recyclables should be exempted from insurance requirements over and above what would be required for shipping a commodity.

The NGO written submission recommended that the revised regulation concur with the spirit of the 1999 Basel Protocol to set realistic minimum insurance requirements and strict liability of the exporter. They submitted that residual liability should remain with the generator as is done in the U.S. rather than being transferred to the receiving facility as is the current practice in Canada, and that Canada should consider adopting the US Superfund approach.

Two industry submissions recommended guidelines as to what criteria should be addressed under a PELES application, and how long a PELES is valid and a maximum period for deciding whether to issue or deny the permit.

The NGO submission recommended that PELES should not be part of the regulations.

One of the industry submissions referred to a consensus reached at the OECD concerning Certificates of Recovery that could be issued within 365 days of a material being "introduced" into a recycling process, and recommended that EC consider adopting this approach.

The NGO submission had a number of specific recommendations concerning accountability and information:

• EC should post notices of imports and exports on the CEPA Registry that include not only the name and country of the exporter or importer and the type of waste, but also the quantity and frequency of their shipments, the actual destination of proposed shipments and reduction plan information (including their past records of reduction). This information should be provided for the actual shipments - not just proposals for shipments;
• The company applying for a permit to export or import hazardous wastes for disposal or recycling should be required to provide public notice in the community that would receive the wastes. This notice should include the details listed in the previous paragraph as well as contact information for both the applicant and the government jurisdiction that the application has been made to, and a timeframe for making public comment;
• The CEPA Registry should be modified to make it easier for people to gather information on waste imports and exports. Postings should be made at least monthly (preferably weekly) and should be searchable by community, district or county, waste type, hauler, disposal or recycling company, and generator;
• The process for listing and de-listing of waste should include public involvement; and
• To ensure overall accountability of the whole system an Ombudsman for Hazardous Wastes Movements (both domestic and trans-boundary) could be appointed outside and independent of the Department.