6. Clarifying Definitions and Scope

• Decoupling recycling and disposal
• Harmonizing with Canadian definitions, tests and criteria
• Updated international waste lists
• Clarifying what is a waste, recyclable material and product

One of the most important elements in any regulation is the definition of the scope of activities or substances involved. Anyone involved in the sector would agree that defining hazardous waste or what is a recycling process is not easy and that there are numerous different views on what these definitions should be.

In the current EIHWR, hazardous wastes subject to the regulations include any waste dangerous good as defined in the TDGR or any item in the list of hazardous wastes in Schedule III of EIHWR that is destined for one of the listed disposal or recycling operations. When they were developed, these lists of hazardous wastes and disposal and recycling activities were largely based on those set out in OECD Council Decisions.

The language of CEPA, 1988 meant that hazardous recyclable materials were included in the definition of hazardous waste along with materials destined for final disposal. CEPA, 1999 now allows the definitions to be decoupled.

The current EIHWR already provides for modified controls for most hazardous recyclable materials consistent with OECD Council Decision C(92)39, including tacit consent mechanisms, lower insurance requirements, the possibility of facilities being pre-approved and allowing exporters to be brokers. Environment Canada will change the wording of the letters issued to permit exports, imports and transits to reflect the decoupling of wastes and recyclable materials to reflect the language of the new CEPA.

The international agreements, which the EIHWR implement, require control both hazardous wastes and hazardous recyclable materials. However, this review of the current EIHWR will take into account the changes to the OECD Council Decision on recyclable materials as well as experience in the implementation of the current regulations. Consequently, alternative approaches that minimize any unnecessary interference with the trade in recyclable materials while maintaining controls that are in keeping with Canada's international obligations may well materialize, and each can be considered on its own merits.

The most recent Canada-wide work and draft recommendations on this come from the CCME Hazardous Waste Task Group (HWTG). Over the last several years the HWTG has developed and held stakeholder consultations on proposed harmonized national definitions for "waste", "recyclable materials", "disposal" and "recycling". The HWTG has also done extensive work on the classification system for environmentally hazardous wastes and hazardous recyclable material.

The Canadian approach is and will continue to be defining "hazardous" as it applies to waste and recyclable materials through reference to lists of materials know to be hazardous as well as a series of hazard criteria and tests. Generators, importers and exporters can use these tests and criteria to demonstrate that their material is not hazardous and therefore not subject to the controls for hazardous wastes and hazardous recyclable materials.

There is significant harmonization internationally and in Canada in the lists, tests and criteria for acutely hazardous wastes and recyclable materials, such as those for gases, flammability, toxicity and corrosivity (TDGR hazard classes 2 to 6.1 and 8). There are no internationally recognized classification schemes for infectious substances/biomedical wastes or for chronically hazardous, environmentally hazardous or leachable toxic wastes or recyclable materials. Therefore each country must develop its own regime.

In Canada, most jurisdictions make reference to the hazard criteria as had been set out in the current TDGR. As environmental controls for hazardous wastes and hazardous recyclable materials are shifted from TDGR to regulations under CEPA, 1999, these references will need to be up-dated, including in the EIHWHRMR.

As part of its recent work, the HWTG has proposed clarifications for the definition of infectious substances/biomedical wastes and a more substantial change in the way environmentally hazardous and leachable toxic wastes and recyclable materials are classified. This involves adopting the US Toxicity Characteristic Leaching Procedure (TCLP) and changing the list of contaminants subject to testing. Because neither the Basel Convention nor the OECD has developed such criteria, it is proposed that the regulations be updated to include a reference to the new HWTG proposal.

For more information on the HWTG proposals, please refer to the background paper for the most recent stakeholder consultations.

Over the last few years, both the Basel Convention and the OECD have updated and clarified the lists of wastes and recyclable materials subject to the Convention and the OECD Council Decision. To ensure on-going compliance with these agreements, it is proposed that the EIHWHRMR make appropriate reference to these new lists.

The new Basel lists of waste (and recyclable materials) that are or are not subject to the Convention can be found in Annex VIII and IX of the Convention.

The OECD has just recently finalized updating the list of recyclable material in Council Decision C(92)39. The main goal of this work was to harmonize these lists with Annex VIII and IX of the Basel Convention. As part of this revision the current three-tiered list (red, amber, green) has been replaced with a two-part list, similar to Annex VIII and IX of the Basel Convention.

While hazardous classification involves scientific tests and criteria, distinguishing between wastes, recyclable materials and products is much more difficult. "Is my recyclable/secondary material/by-product subject to EIHWR?" is a question that Environment Canada is frequently asked. It will be important for the amended regulations to provide enhanced clarity on this issue.

Both the OECD and the HWTG have developed guidance criteria, which are essentially those which Environment Canada has been using when answering questions from industry on whether a material is a waste/recyclable material or not. The following are criteria have been used by Environment Canada to characterise materials to be considered as wastes or recyclable materials. (It is important to emphasise that these criteria need to be examined as a whole.):

• It is unavoidably produced in the generation of another material or it is at the end of its useful life.
• It is intended for final disposal (including storage) or it is a recyclable that requires recovery/treatment before it can be used.
• Its production is not subject to adequate quality control or national/international standards.
• It may meet industrial requirements for use as an ingredient only under certain circumstances or only in one facility.
• It has a low or negative economic value.
• Its markets are not well defined, unstable or are very limited.
• Its use/reuse generates wastes that must be further treated in excess of those which may result from the use of virgin input.
• It has a great potential for contamination that would make it more hazardous than the product it replaces.

Even in using these criteria, members of the regulated community have, at times, come up with different conclusions than Environment Canada. As the amendment process evolves, further discussions with stakeholders will be required to develop a more common understanding of how these criteria are to be applied. Environment Canada will examine the possibility of developing further the criteria under the new regulations (e.g. inclusion in the regulations, reference to a guidance manual). Since the HWTG has also considered the use of these criteria for interprovincial movements, it will be important to consider harmonization of criteria for international and domestic controls.