7. Implementation of ESM Criteria

The revisions to CEPA provide an opportunity to improve Environment Canada's ability to ensure that all exports and imports are managed in an environmentally sound manner. The current regulations require importers and exporters to "take all practicable" measures to ensure that hazardous wastes and recyclable materials will be treated in an environmentally sound manner. This language was taken directly from the Basel Convention. Facilities must also be authorized as per their provincial license or certificate of approval to manage the hazardous wastes or hazardous recyclable material in question.

Some general guidance has been developed under the Basel Convention to define environmentally sound management (ESM), including technical guidelines on several waste streams and disposal/recycling operations as well as a framework document on the preparation of technical guidelines for the environmentally sound management of wastes subject to the Basel Convention. This framework document sets out guiding principles and general requirements for ESM.

CEPA, 1999 seeks to address this problem by enabling Environment Canada to establish criteria for ESM that can be applied by importers and exporters in seeking to ensure the wastes and recyclable materials they export will be treated in an environmentally sound manner. It also gives the Minister the discretion to refuse to issue a permit if satisfied that the material will not be handled in an environmentally sound manner. In such a case, the Minister is required to consult with the government of the jurisdiction of destination before refusing to issue a permit.

As set out in a July 2000 news release, the Minister of the Environment has called the provinces to action to develop and implement a new national regime for ESM. While this was largely as a response to the increasing imports of hazardous wastes due in part to lower landfill standard in Canada than in the United States, this national regime will be implemented for both domestic and international movements.

Work under this initiative has been started and will include a review of various CCME guidelines for the management of hazardous waste and an examination of the liability regime for hazardous waste and hazardous recyclable materials in Canada. By working together, the provinces and the federal government can ensure that a harmonized national ESM regime is established, which would be implemented by the provinces for domestic shipments and by Environment Canada for international movements.

At the same time, at the last Conference of the Parties, the Basel Convention adopted a Ministerial declaration, a Decision and a workplan to increase its efforts to define and promote environmentally sound management of hazardous waste, including hazardous recyclable materials.

It is important to recognize that the upgrading of standards for the management of hazardous wastes and hazardous recyclable material is a continuous and step-wise process. As such, a flexible mechanism is required to ensure that the core elements of ESM for international movements are integrated into the EIHWHRMR, while ensuring that the evolving national regime for ESM can easily be implemented even after the 2003 time frame for the amendment. It may be necessary to implement ESM in phases as the regime evolves.

Another important consideration is how the ESM criteria that are adopted are implemented for international movements, recognizing the provincial role in authorizing facilities. There are many ways in which this could be achieved which will need to be investigated, including:

• specific inclusion of the criteria in the regulationsthat Environment Canada could use in evaluating import and export notices
• development of separate federal regulations on ESM which could apply to shipments under EIHWHRMR, the proposed upcoming regulations on interprovincial movements of hazardous waste and hazardous recyclable materials as well as the regulations on hazardous waste management at federal facilities;
• leaving it to the provinces to integrate ESM in the licensing of facility, either through reference to federal ESM regulations or by virtue of provincial legislation;
• adoption of some third party standard (e.g. some ISO or equivalent national standard) that must be complied with in order to import or export; or,
• a voluntary approach with periodic auditing or reporting.

A combination of approaches may be necessary. For example, there may need to be ESM criteria that are specific to transboundary movements, such as how to take into account the proximity principle, that go beyond those technical standards that may be adopted in the national regime for ESM at the facility level. Particular attention will also be placed on substances have been deemed "CEPA toxic" which are subject to the Toxic Substances Management Policy and Environment Canada's Strategic Options Process.

However, since both domestic and international work in this area is only in its early stages, this issue will have to be periodically re-examined as these initiatives proceed in parallel with the amendments to the current EIHWR. At the same time, by developing its own ESM regime, Canada will be in a better position to influence the development of ESM criteria internationally.

It is not intended that the consultation process on the EIHWHRMR duplicate or replace any discussions of ESM under this national regime or within the Basel Convention. However, any stakeholder input provided at this and future stages of the consultation process for the EIHWHRMR will be very useful in both the domestic and international ESM initiatives.