Appendix D: Minutes from Stakeholder Consultation Sessions Held During February and March, 2000

This appendix documents the input received from various potential stakeholders regarding the proposed non-hazardous waste (NHW) regulations. As described herein, this input was solicited over the course of several consultation sessions held in Toronto, Montreal and Vancouver. Prior to the meetings, participants were provided with some brief background documentation as well as an agenda. As the meetings were intended to both provide information and encourage discussion on behalf of participants, the discussions did not always follow the agenda.

Each of the sessions consisted of a formal presentation followed by open discussion. The formal presentation generally commenced with the identification of the purpose of the undertaking and pending (this) Discussion Paper, as well as the drivers for this initiative. As noted at that time, these drivers include policy/regulatory commitments (e.g. Basel Convention). Further, the desire to manage wastes at home was recognized. In the event that wastes are to be exported for disposal, such quantities were to be minimized through waste reduction programs and assurance should be forthcoming such that any waste ultimately sent for disposal will be handled in an environmentally responsible manner. Environment Canada's long stated policy to maintain open borders while imposing controls on the movement of waste was further mentioned.

The next stage of presentation consisted of an outline of the regulatory and policy background to this undertaking. This included discussions related to the Basel Convention, the Canada-U.S. Agreement, as well as OECD actions concerning transboundary movements. Also discussed were the Export and Import of Hazardous Wastes Regulations and recent amendments to the Canadian Environment Protection Act (CEPA).

Subsequent areas of presentation touched on background studies and reports (e.g. Ontario export studies and the previous pilot voluntary notification program) as well as current waste quantities exported or imported for disposal. Previously formulated macro-level options regarding transboundary movements were then reviewed (e.g., regulatory monitoring, economic measures, bans and restrictions).

The formal presentation also touched on the next steps in this process (i.e. submission of Discussion Paper, consultations by Environment Canada, publication of draft regulations, etc.).

As outlined in the following pages, input was then received on a variety of issue-specific areas as related to the proposed regulations (e.g., definition of 'prescribed' wastes and waste 'disposal', prior informed consent (PIC) and tracking/manifest requirements, etc.). Session participants included representation from private industry, provincial ministries, municipal government and non-governmental organizations (NGOs). As might be expected from such a diverse group, some of the input received is occasionally contradictory.

During the discussions, most comments received were in relation to non-hazardous wastes. On some occasions, however, reference was also made to hazardous wastes. This was partly because the concepts of "non-hazardous waste" and "final disposal" were not felt to necessarily mirror concepts and definitions currently found in provincial or state legislation from which such wastes originate or are sent to.

Following each session, participants were provided with an electronic copy of their session's minutes. In the event that the assembled minutes did not accurately represent the presented viewpoints, recipients were encouraged to notify the study team.

The following consolidated minutes outline the results from three consultation sessions held in Toronto in February, 2000 as listed below:

• non-governmental organizations (NGOs) - February 17 (9:30 am);
• provincial ministry conference call - February 17 (2:00 pm); and
• municipalities and private waste management firms - February 18 (9:30 am).

Session participants are identified in the stakeholder contact list in Appendix B. For the Toronto sessions, facilitators were: Grace Howland (Environment Canada); Doug Thomson (McCarthy Tetrault); and, Jonathan Read and Ted Taylor (SNC-Lavalin).

Definition of Prescribed Wastes

NGOs

• any mixed unsorted (prior to collection) waste or unprocessed (after collection) waste should be prescribed
• concerns about household hazardous waste necessitate that exporters be required to certify that no such waste included. Similar concerns exist for hazardous waste in commercial stream. The new regulations could be used as a lever to get generators to pull more hazardous materials out of the waste stream
• construction and demolition waste is very recyclable and, therefore, should be captured in regulations and discouraged from export
• future regulations should not be quantity specific, should be enforced for small loads as well
• refrigerators should be prescribed due to CFC/freon issue
  used tires and mixed plastics should also be prescribed wastes
• mixed waste sent to a compost or wet/dry facility should beprescribed waste. Some concern about use of product from mixed waste composting as landfill cover
• waste material sent for making a "fuel" is supporting incineration and, therefore, should be prescribed

Municipalities and Private Industry

• question if the Basel Convention or Canada-US agreement is driving the undertaking and why the Canada-U.S. Agreement expands the definition of non-hazardous solid waste from that in Basel
• Basel Convention is likely intended more for restricting waste going to developing countries. May not be as much of a need for regulations with U.S. - Canada movements
• the upside of regulating NHW is unclear, it is not hazardous and risk is minimum with most waste (except maybe tires).
• some U.S. sites take only construction and demolition (C&D) wastes and these wastes should be excluded (as more benign). Recognizing that there can be a component in C&D that is tainted, perhaps a minimum threshold of commingling could be defined
• further to the above, question if IC&I waste should be included
• must recognize special wastes from large industrial generators (e.g. expired cosmetics, paper sludge, foundary sand, etc.). Difficult to estimate quantities because they are handled internally and not typically captured by OWMA members, moving directly from generator to disposal facility
• it should be recognized that there are differences between transfer stations permitted for residential waste, IC&I waste, and those permitted for both. Further, waste flow is already regulated in the U.S. as well as in Ontario (by existing sites certificates and conditions of approval)
• what would happen if a State such as Michigan chooses to restrict waste imports and provides legislation to control this? Further, if the U.S. agrees to take wastes can Canada ban the movement?
• definition required as to when a material is a waste and not a recyclable. In this respect, some materials would change in classification in transit (i.e. from intermediate processing)
• market prices will often impact what a disposal facility will accept
• the Ontario MOE is trying to pull out recyclables from waste definition

Prior Informed Consent

NGOs

• current hazardous waste notification system doesn't work
• with regards to notices, simply putting them in Gazette is not acceptable. Should also go into the local newspaper of the host and exporting community
• also, post notices/applications in CEPA Registry (at a minimum). As this doesn't help non-professionals or those outside the country, further need public notification prior to consent along with a suitable period for public comment. Minster's decision should take into account input from public notice
• recommend a plebiscite in host community. Environment Canada to suggest options under 185(2) to show community consent is considered in determining ESM
• recognize, for example, that Smithville voted to accept a PCB incinerator to handle a local wastes but voted against OWMC's facility that would have taken material from farther afield
• do not need PIC for each truck load, blanket notices for multiple loads to a single facility are possible. Use the manifest system to ensure compliance
• philosophical problems with exporting waste in that it effectively reduces public and waste generator involvement in how it should be managed
• waste export should not be made too easy

Provinces

• some concern that the new regulations would add needless bureaucracy, especially if a province has other systems in-place
• PIC may not be necessary, if put in place, however, question need for every shipment
• the requirement for reduction plans and tracking/reporting generally valid

Municipalities and Private Industry

• if PIC put in place, it must be simple
• rather than identify a single disposal site, should be able to provide a list of potential landfills that might be used (while showing that they are properly permitted)
• also, requirement to identify single port of entry should be removed (or allow several to be listed)
• further, it is difficult to predict the quantities for a year. The government does not need to know these numbers, rather could provide an actual total at end of year (i.e. a rear view annual report showing total wastes shipped)
• if several waste haulers are bidding on the same contract and intend, if successful, to ship the waste quantities to a particular site in Michigan (for example), what use are all these duplicate figures to the subject state or jurisdiction
• there is potential for competitive abuse if some companies tie up available U.S. landfill capacity in the above manner
• consider listing certain jurisdictions (countries) where there are concerns, and apply different rules for those jurisdictions (i.e. exemption for U.S.)
• with regards to frequency of Notice, suggest filing a maximum of once a year (pre-approval)
• the Ontario MOE would not be so concerned about quantities coming in as there are service area and tonnage restrictions in landfill certificates of approval. If province of receipt doesn't care, why would the federal government be concerned?
• tacit consent procedures supported (if don't hear from receiving jurisdiction within 30 days -at most - should assume consent)

Tracking and Manifest Issues

NGOs

• tracking/manifest records should be public information without need for industry consent
• manifests are necessary as part of an enforcement scheme. They should be filled out and carried by all parties that handle the waste regardless of the number of times it changes hands
• a carbon paper manifest is not a burden given that trucks already need to submit papers to get over the border (the manifesting should be carried out from cradle to grave)
• manifest can also be electronic, similar to systems used by courier companies
• should be a manifest for each shipment, i.e. not for blanket approvals as for PIC. Individual manifests necessary to support monthly (for example) reporting
• if filing weekly/monthly reports, still need individual shipping document by the truckload as well as "death certificates" at landfill
• Environment Canada should provide annual reports for both hazardous and non-hazardous transboundary waste movements
• Resilog states how much waste was applied for in a shipment but does not state how much was actually shipped

Provinces

• some provinces have become very focused on removing red tape and do not want to make industry uncompetitive. Environmental risks with NHW don't warrant the same precautions as with hazardous waste
• a simplified tracking system is suggested v.s. a full manifest system
• need to consider creative, practical approaches

Municipalities and Private Industry

• as not dealing with hazardous waste there is no need to follow hazardous waste manifest guidelines/protocols
• question the purpose of shipment tracking
• the more documentation generated the less important each piece of paper becomes
• suggest use of electronic keys at the border. Government has capability of allowing trucks to use such keys to help automatically track the shipments. OWMA previously suggested this approach
• consider a simple annual report with audits conducted to ensure data is valid

Waste Reduction Plans

NGOs

• the obvious target is the generator to submit waste reduction plans
• could ask hauler to confirm that a municipality or business has completed a diversion plan. However, this may be easier for Environment Canada to do
• waste transporter may have to attach waste master plan or reduction plan for originating municipality as a condition of 185 permit
• would also need to ensure that reduction plans have been implemented over the previous permit period and that targets were met prior to re-applying for/approving a subsequent new permit
• could require transportation service provider (hauler) to offer waste reduction services
• possible models for waste diversion plans could include: Section 56 Pollution Prevention Plans template with respect to the need to set targets, Ontario Regulations or Massachusetts example
• question if the new regulations should contain waste reduction targets
• question if there is a National waste management plan that feds have established for their own departments. If not, need for a federal waste reduction plan noted

Provinces

• the requirements for waste reduction plans are a good idea
• question what a recycler would have to go through to prove recyclables are going for recycling
• when does recycling become disposal?

Municipalities and Private Industry

• should defer to each province to set waste reduction goals or 'level of equivalency'
• what right exists to refuse permits if province has a waste reduction plan? Should not layer on more requirements
• question who is defined as the exporter (i.e. municipality or the hauler). This can be a function of the contract terms between the hauler and municipality/generator
• unclear how the Minister plans to apply this discretionary authority
• need a special definition of waste generator for the purposes of the new regulations
• haulers won't be interested in reducing waste because they are in business to haul and have no incentive to reduce quantities
• in some cases, the need for waste export may occur if diversion plans are successful and quantities drop off drastically, reducing the requirement for new landfill capacity to the extent that its becomes too expensive to locally establish
• for border municipalities, it may be more enviromentally friendly to go over border for landfill capacity
• under 188, authorities could deny approval to move waste if reduction plans not implemented satisfactorily
• question what would happen if province or exporter challenged by an NGO that waste diversion targets have not been met - could this lead to a blanket cancellation of permits, in case of province being challenged
• concerned that recycling markets are in a constant state of flux, as the value of materials decrease, recycling levels decrease

Definition of Waste Disposal

NGOs

• waste disposal definition should include landfill, incineration, EFW, thermal processing (e.g. pyrolysis), wet/dry without pre-processing and, storage pending disposal
• aim to promote source separation and processing
• anything exported for processing will have a portion directed to landfill
• consider all waste systems as disposal unless proven recycling. Recycling capacity for a particular waste stream in other country would have to be demonstrated
• material sent across the border for recycling would require proof that material is recyclable and that a market exists for the material
• as long as cheap disposal exists in the U.S., recycling programs will be undermined in Canada

Municipalities and Private Industry

• need to be aware of sham recycling. This issue is complicated in that some legitimate facilities will change the amount and type of material they recover based on market conditions
• question if there is a % of processing and material diversion that has to occur to be considered recycling v.s. disposal
• question if facilities would be treated any differently if, for example, a landfill is providing gas recovery or an energy producer wants to burn tires for replacement of coal
• some parties pay haulers to get rid of recyclables (PVC and drywall) - causes a grey area

NGOs

• has there been any changes to the U.S. regulatory environment in this regard? Have amendments been made to RCRA to allow controls to be put into place in U.S.?
• RCRA public consultation process does not include the point that some waste will come from Canada
• is Quebec's law restricting waste import under challenge?
• also concerned that there is a sizeable quantity of waste waiting to come into Quebec
• any new federal regulations shouldn't be allowed to override Quebec's prohibition of waste import or Ontario's landfill service area restrictions, for example. Don't want to open the door for overturning existing provincial positions
• in 1985, wastes were coming to Toronto's Keele Valley landfill from as far away as Kentucky when tip fees at this landfill were as low as $18/tonne
• Ontario appears to be moving in the opposite direction to Quebec with respect to landfill service area boundaries
• if waste is restricted from disposal in a province, but is allowed for disposal in U.S., does it constitute a non-environmentally sound management practice? We should not accept as ESM elsewhere, what we wouldn't accept here
• no wastes should be exported as it impedes development of 3Rs programs (consistent with Basel Convention). Also, environmental concerns with respect to fuel usage and the problem of transferring waste from good to poor economic jurisdictions
• Section 186 provides the Federal Minister the authority to prohibit waste movement. What are the trade implications if Environment Canada wanted to shut borders?
• how broadly will "waste to be landfill in an environmentally sound manner" be defined?
• will existing contracts be grandfathered?
• would support Option 3 (fees) or Option 4 (bans)

Provinces

• provinces would like to see Discussion Paper after produced but before being made public
• question if the process is formally going through CCME (if not, when?)
• how would the new regulations affect imports to a provincial landfill? Would they function without an equivalent American set of rules?
• are there any NAFTA-related issues?
• question if landfills currently importing waste would have to go through a new set of approvals
• British Columbia has regional waste management plans which include service areas approved by Regional Directors. This controls trans-jurisdictional movements
• why should Canada have to carry out extra due diligence to confirm U.S. facilities have sound environmental practices? This may be appropriate for other countries, however
• need to be creative in developing the rules on how we treat U.S. versus other countries

Municipalities and Private Industry

• has consultation been undertaken with other provinces that don't export or import?
• as Quebec doesn't have waste reduction plans, question their ability to move waste
• could American firms get approval to receive Canadian waste?
• consider notion of equivalency be introduced between provinces
• has Industry Canada or others (Competition Bureau, trade groups, etc.) had any participation at a macro level? This will become an economic issue as much as an environmental one
• has participation of CCME been considered or involvement of provincial ministries other than environment ministries
• shouldn't use regulations to restrict trade or jobs
• are waste import issues as much of a driver as export issues?
• all should understand that there will be local disposal options available (i.e. Kirkland Lake)
• if border cut off you remove options available to private sector
• is there an aim by Environment Canada to recover costs?
• concerned about being denied permits under 185(2). For Minister consent would need to ensure facilities environmentally sound

The following minutes outline the results from two consultation sessions held in Montreal in February, 2000 as listed below:

• waste management industry representatives - February 24 (9:30 am); and
• Quebec Ministry of the Environment (MENV) and environmental groups - February 24 (1:30 pm).

Session participants are identified in the stakeholder contact list in Appendix B. For the Montreal sessions, the facilitators were: Charles Cormier (Environment Canada); Katia Opalka (McCarthy Tetrault); and, Luc Massicotte (SNC-Lavalin).

Morning Meeting with Industry Stakeholders

Definition of Prescribed Wastes

• request for a clear definition of "wastes" in upcoming regulations and that such definition be consistent with those found in provincial regulations. For example, wastes should be classified by function of their level of dangerousness rather than by means of generic criteria
• noted that the process of determining which wastes will be prescribed will involve reference to multilateral agreements
• questioned if a residual material reused in an industrial process would be held to be a waste under the new framework
• Quebec's notion of "special wastes", which falls outside of the definition of solid waste found in the Solid Waste Regulation (Quebec), was recognized
• suggested that materials such as ashes from waste treatment facilities and home appliances should not be considered as dangerous wastes
• requested that a classification and definition of "non-hazardous wastes" be made available before the next consultation meetings
• suggested that the concept of raw materials must be defined in the context of any future regulations
• noted that borders between provinces are real, particularly with regards to waste classes, which are not always harmonised
• noted that as the U.S. are not signatories to the Basel Convention, they must amend their legislation in order to harmonise their waste classifications
• hope expressed that certain "niches" which currently exist for the disposal of certain types of industrial waste will not be lost (are materials which can be reused in industrial processes wastes or products?)
• noted that Canada has adopted the U.S. leachate test for the purpose of facilitating classification

Definition of Waste Disposal

• hope expressed that re-use for energy purposes would not be included in the definition of final disposal

Prior Informed Consent

• agreed that it is too soon to discuss details of notification requirements including those in connection with multiple shipments from the same location in the course of one year, who will be required to give such notification (the notion of "exporter"), or what the content of such notification should be
• remarked that the prohibition on importing wastes found in the Solid Waste Regulation stems from the government's reaction to media reports and is not in the best interest

Tracking and Manifest Issues

• concern expressed that transport movements across provinces remain un-impeded
• noted that no manifests are required for recyclable wastes
• certain examples of regulatory discrepancies between provinces were raised. An Ontario transporter can operate and tip certain wastes at sites in Ontario while Quebec industry can not. A Quebec hauler must register a place of business in Ontario
• the example of hazardous substances was raised, where a Canadian hauler must operate through a U.S. transhipment facility, which sends the shipment to another state using an American hauler
• the problem of tracking imported and exported wastes was raised - without a clear waste classification, difficulties were recognized in carrying out inspections and identification work in connection with prescribed wastes

Waste Reduction Plans

• the export of used tires, having little or no tread, as "products", is an example of problems associated with the definition of waste reduction. In addition, certain metals used and reused as raw materials in industrial processes could, depending on the applicable definition, become wastes
• suggested that there should not be any controls on the movement of recyclable hazardous wastes
• in Quebec, the adoption of a new policy regarding residual materials is expected to result in an increase in the cost of waste disposal, given MENV's intention to encourage the regionalization of waste processing and disposal

Other Issues

• industry stakeholders asked that the upcoming consultative review of the proposed regulatory framework encompass all elements of the upcoming legislation
• Environment Canada encouraged to create an environment which will standardise requirements across provinces and make them equitable from one province to another
• question why a bilateral agreement with only one country couldn't be an option (i.e., why not simply modify the existing Canada - U.S. agreement?). Is the adoption of regulations which meet the requirements of multilateral agreements absolutely necessary?
• question raised regarding NHW; i.e. should the legal framework be seen as a "common clause"? Noted that amendments to CEPA are suppletive to provincial regulations
• the Centre Patronal de l'Environnement du Québec registered its interest in working with Environment Canada in the current process and asked that every effort be made to avoid imposing a heavy administrative burden on industry
• noted that the U.S. federal government has the power to impose minimal environmental standards on states, something which cannot be done in Canada

Afternoon Meeting with Environmental Groups and MENV

Definition of Prescribed Wastes

• certain clarifications provided by representatives of the MENV regarding the Solid Waste Regulation (Quebec) and the classification of certain materials (wastes or not, special wastes, other)
• noted that it would be difficult to harmonise the notion of NHW with the notion of "residual material" now found in Quebec legislation
• estimated that only 1% of materials sent to recycling are recycled outside of Canada. Consequently, the decision not to include recyclable materials within the upcoming legislation will have little or no impact
• residual materials could be classified in function of their calorific or agricultural value
• importance of clear waste classifications was underscored

Definition of Waste Disposal

• while the dumping of used tires is similar to final disposal, it is considered to be a storage activity
• stated that permanent storage cannot be considered to be a form of final disposal
• noted that many materials imported for the purpose of reclamation undergo only a small amount of processing and are then sent to landfills
• the burning of plastics was agreed to not be a sound environmental practice

Prior Informed Consent

• asked whether the federal government intends to create standards governing the decision of a province to accept or refuse materials coming from outside its boundaries

Tracking and Manifest Issues

• "confidentiality" issue worries certain environmental groups because it limits the public's right to know about waste movements
• all present agreed that voluntary measures are doomed to failure and were pleased to learn that, based on past experience, voluntary initiatives would not be entertained. Participants then mentioned the voluntary program being advanced by Recyc-Quebec
• as Transport Canada will gradually withdraw from the field of hazardous wastes, question who will ensure control over such wastes. Suggested that arrangements be made with provinces to allow shipping documents, for example, to be monitored by provincial ministries of the environment
• MENV representatives noted that they are aware that Quebec transhipment facilities are used to import (hazardous) wastes to Quebec illegally. They stated that MENV keeps close track of such activities
• for transhipment facilities, it was asked whether wastes transiting through such locations will be regulated and if so, how

Waste Reduction Plans

• recycling noted as a concept which is defined in multilateral agreements and relates to uses. As a result, it cannot be classified as an activity that generates non-hazardous prescribed wastes
• stated that reduction at source should be of concern since a significant percentage of consumer products sold in the Canadian market originates outside the country
• hope expressed that upcoming legislation will favour the reuse of home appliances and that the reuse of industrial wastes in manufacturing processes will be encouraged
• relevance of proposed legislation called into question in light of the upcoming implementation of Quebec's action plan for the management of residual materials
• asked how the federal government will ensure that an exporter's action plan (for waste reduction) is complied with once materials have left Canada

Other Issues

• noted that a major landfill is set to be closed and that most landfills in Quebec are owned by a single company. Concern expressed that in the near future, exports of Quebec wastes to Ontario or the United States will increase
• also noted that in Quebec, the import and export of NHW is not a significant problem and that the current legislative initiative could have the undesired effect of sparking interest in exports
• questioned what the Canadian government's interpretation of "ecologically efficient management" concept will be, given that this is now the guiding principle in waste management matters
• cautioned that low meeting turn-out should not be interpreted as sanctioning a one-sided process. The importance of providing government funding, given the groups' extremely limited financial resources highlighted
• current federal legislation noted to have certain weaknesses. An example was given of asbestos wastes from another province being sent to Newfoundland with the approval of Environment Canada. It was said that the approval was granted on the basis of "ecologically-efficient management" even though from a technical perspective, the project was not entirely sound
• question whether necessary resources (personnel and funds) will be available to implement the new legislation (example given of hazardous waste imports of questionable legality by an American company from a location in the Saguenay; neither the federal nor Quebec government have investigated)
• general agreement that the Basel Convention was a victory for the environment

The following consolidated minutes outline the results from a consultation session held in Vancouver on March 10, 2000, beginning at 9:45 am. Session participants included representation from non-governmental organizations (NGOs), British Columbia Ministry of Environment, Lands & Parks, local regional districts, and private sector waste management firms.

Session participants are identified in the stakeholder contact list in Appendix B. For the Vancouver session, the facilitators were: Doug Thomson (McCarthy Tetrault); and, Jonathan Read (SNC-Lavalin).

Definition of Prescribed Wastes

• question if everything that isn't in Basel as listed wastes would be prescribed wastes
• should focus definition on end-use/fate of transported wastes (i.e. anything sent for disposal is a prescribed waste)
• concern about small quantities of hazardous wastes in NHW loads
• further to the above, consider a rule/guideline for allowable levels of hazardous wastes
• would be concerned if demolition and construction waste was made exempt, this waste is not benign with associated leachate problems noted in some existing sites
• definition of prescribed wastes should be consistent as far as possible with provincial laws
• question about status of contaminated (non-hazardous) soils and if they would fall within the proposed regulations
• definition status of gypsum or asbestos wastes questioned as well as other materials with regards to the materials being hazardous or not hazardous
• need to be very sure as to what is a special or a hazardous waste
• substantial quantities of contaminated soils currently transported out of British Columbia (last few years quantities have ranged from 10,000 to 80,000 tonnes/year)
• further questions about autoclaved biomedical or other sterilized wastes, international shipping (cruise ships) and airline wastes, as well as sewage treatment plant screenings
• if not included, these other wastes are left hanging and should be subject to some form of regulation
• jurisdictional issues need to be addressed

Definition of Waste Disposal

• question about waste sent to a disposal site that is ultimately meant for land reclamation (site might be intended for conversion to pasture land, for example). This is a beneficial use - still considered as waste disposal?
• such waste material used for land reclamation/rehabilitation actually conserves use of clean soil in such a process
• further to the above, question about materials used for engineering purposes, such as for road bed material
• opinion offered that post closure use of 'disposal site' should not have an impact on definition of waste disposal
• suggested that waste disposal be defined as something you have to pay for (i.e. if you have to pay to get rid of it, it's a waste). Conversely, if the waste material has a positive economic value it may be a recyclable waste
• concern expressed that something may have a cost for disposal but the costs might be less than what would be incurred locally. Therefore, there is an associated cost but a net cost reduction/saving
• a concern with the preceding was suggested that using 'net' costs as a definitional issue may result in front companies being established to hide the money flows
• suggested that receiving jurisdiction should have to prove that waste is not going for disposal
• query as to what percent residue is appropriate for a 'recyclable' material stream
• noted that EFW is defined as material recovery in British Columbia. Regardless, it was suggested that the regulations should still track the associated wastes
• transported unprocessed mixed waste should be considered as going to disposal
• question about materials used as fertilizer or for soil additives

Prior Informed Consent

• need to find the right balance between economic efficiency (adherence to new regulations should not waste money) and effectiveness (regulatory structure should not be prone to abuse)
• proposed regulatory requirements should be less onorous than for hazardous waste
• private sector concerned that whatever is implemented should be simple. A contractor should not have to fill out 50 pieces of paper to move a load of garbage
• suggested that proof of compliance with current regional solid waste management plans be required
• further, proof of regulatory status (certificate of approval and statement from local jurisdictional authority that the facility is in compliance) was identified as a PIC requirement
• alternative PIC approaches suggested included: have a one-time application that is open-ended with new PIC applications only triggered by a change in material flows; use a term definition longer than 1 year (e.g. 5 years, noted that municipalities don't award 1 year contracts - if they did they would be continually letting new contracts); allow the exporter to file a statement saying no change from previous year (if no substantial change in status)
• requirement for proof of contract should not mean that contractual details would be provided to Environment Canada (contract terms should be protected)
• concern expressed about one-off waste streams (e.g. contaminated soils from a site cleanup/remediation project) and possible time delays in getting approvals for removal
• suggested that local region (where waste originates) should approve of export in order to help administer/facilitate/promote local 3Rs efforts. The exporting province and/or municipality should have right to know and approve of waste movements. This was noted as more of an issue for IC&I wastes
• suggested that PIC applications be 'non-generator specific' (i.e. allow pre-approved blanket approvals without the need to identify where waste will be coming from)

Tracking and Manifest Issues

• question if a Freedom of Information request would allow one full access to Environment Canada records
• suggested that a balance is required between transparency and privacy. Some private information has no implications to the environment. Should let industry propose the appropriate level of disclosure
• electronic reporting on an annual basis suggested by industry. Spot audits can then be carried out.
• for contaminated soils, approvals and manifest requirements were suggested to be based on total project volume
• alternative tracking approaches might include putting bar codes or permit numbers on trucks or, bar codes on the manifest, to allow Customs to efficiently record information
• noted that bills of lading (custom manifests) currently accompany shipped loads of recyclable materials

Waste Reduction Plans

• consider allowing private industry, prior to export, to address waste reduction issue by simply stating that they fall within a particular region that has a waste reduction plan (e.g. approved Regional District Solid Waste Management Plan)
• noted that Environment Canada could be in the position of denying export in a province that is behind in implementing waste reduction programs
• heavy industry waste stream (e.g. mill rejects, metals waste) do not fall within local waste reduction plans. This does not mean Environment Canada can't step in and request some demonstration of waste reduction plans for these industries

• question why U.S. did not enter into Basel Convention
• question how Section 190 (equivalent level of safety) is assessed; i.e. against what benchmark
• question if Subtitle D is still an issue in the U.S.
• concern about the proposed regulations becoming a free trade issue and possible challenges by the U.S. under NAFTA
• noted (by DINA) that proposed regulations might also benefit the First Nations. If applied to reserve boundaries the regulations may help add a level of control over reserve disposal sites

Consultation meeting date: February 18^th, 2000

The Ontario Waste Management Association (OWMA) represents 319 member companies and individuals involved in the waste services industry in Ontario. OWMA has been an active stakeholder in the development and implementation of waste management regulatory initiatives at all levels of government - federal, provincial and municipal. While OWMA membership have diverse business interests in areas such as landfills, transfer stations, material recycling facilities and hazardous waste; the majority of member companies are waste material 'haulers'. OWMA members facilitate the movement of waste both within Ontario and to various US states. Our members handle over 80% of the solid waste in Ontario and 95% of the solid waste moving across the US border.

OWMA has a very significant interest in any initiative to regulate the transboundary movement of solid waste between Canada and the Untied States.

The OWMA has had the opportunity to review the background documentation related to the current study commissioned by Environment Canada and has received formal presentations from SNC Lavalin, McCarthy Tetrault and Environment Canada representatives. A select group of OWMA member company representatives as well as the OWMA Executive Director attended the stakeholders discussions convened in Toronto on February 18^th, 2000.

The following issues and/or queries were the subject of discussion at the stakeholders meeting and are of concern to OWMA.

The Context of International Obligations:

The rationale for the current exercise to consider regulatory options for the export and import of solid waste between Canada and the US is claimed to be embodied in the Basel Convention of which Canada is a signatory and the US is not. While the Basel Convention is primarily directed at hazardous waste movements, it does include reference to 'other wastes' - presumably non-hazardous solid waste. Similarly the US - Canada Agreement on the Transboundary Movement of Hazardous Waste has been amended to include non-hazardous waste destined for final disposal. The Canadian Environmental Protection Act (CEPA), 1988 has allowed Canada to move towards a regulatory framework.

While the OWMA recognizes Canada's role in the world community and the need to meet international obligations, it is also important to recognize the evolution of regulatory frameworks from hazardous waste into the realm of 'other wastes'. It is important to recognize that the impetus for the international actions were based on the serious environmental and health risks associated with the uncontrolled disposal by developed countries of large volumes of hazardous waste in developing countries. These recipient countries had little or no environmental controls or safeguards and were disadvantaged by the economic pressure to receive such wastes. In these circumstances it was more than reasonable that the international community took action. The international philosophy, Conventions and Agreements are now being applied to a totally different situation. The transboundary movement of solid waste in North America is between two sophisticated and highly environmentally regulated and safeguarded nations. The regulatory framework for waste management in each nation is at least equivalent and in some cases superior in the US, meaning that waste movements are not occurring to circumvent environmental controls. As such the need to regulate exports and imports between Canada and the US in any manner should be considered. We respectfully suggest that the need for such regulation does not exist despite Canada's perceived need to meet international obligations. We suggest that Environment Canada thoroughly investigate the existing waste management regulatory framework at both the provincial and state levels before concluding what, if any shortcomings really exist in terms of meeting the intent and commitments associated with the Basel Agreement and CEPA.

If a regulatory approach is adopted it must be minimal in terms of additional government red tape and the 'layering' of government jurisdiction and control. Any changes should be implemented in a manner that they enhance rather than simply add to or duplicate existing requirements. Regulations must not restrict trade and commerce nor be an economic burden to the industry and economy.

Fundamentally, it is our belief that the current regulatory systems that exist on both sides of the US-Canada border provide adequate environmental protection and minimal risk to human health, and with some very minor enhancements will meet the intent of the Basel Agreement and CEPA.

Definitions:

The term 'waste' also requires clear definition to distinguish between waste for disposal and materials for recycling or reuse. The economics of recycling must be incorporated into the definition to reflect the fact that a 'waste' today is a recyclable material tomorrow because of changes in market conditions.

Both the Basel Convention and the Canada - US Agreement refer to 'other waste' but the definition appears to be different in each document. The respective definitions of 'household waste' and 'municipal waste' are ambiguous and require clarification in terms of any proposed regulation. It is extremely difficult to classify waste according to 'origin'. The definition of 'other waste' as 'household waste' in the Basel Convention appears to be expanding under CEPA with no apparent rationale. These definitions will create difficulties for Ontario facilities that process and dispose of 'mixed' household and IC&I wastes and accentuate waste definition anomalies between Ontario and US states.

A clear definition of 'final disposal' is also required to assist in clarifying waste versus recyclable materials. It has been suggested that the regulation must address situations in which material exported under the guise of being recycled is intended for disposal. While this is recognized as an issue in the most blatant circumstances, any attempt to find a regulatory solution must not interfere with the legitimate export and import of waste and recyclable materials. The definition issues mentioned previously accentuate the difficulty of a regulatory approach.

Prior Consent Principle:

The need for a regulatory system requiring the receiving jurisdiction to provide prior informed consent for waste export and the perceived inadequacy of the current provincial and state regulatory systems with respect to this issue is understood to be a key concern.

It is important to recognize that in the early 1990's, RCRA Subtitle D was promulgated in the United States, bringing into effect perhaps the most stringent municipal solid waste landfill design and operating standards anywhere in the world. States including Ohio, Michigan and New York responded by developing their own regulatory programs that had to meet these minimum Federal standards. Many states went and remain beyond the Federal regulatory requirements.

The landfill permitting system in the US is at least as stringent as that in Ontario, and each landfill permit has restrictions placed upon it based on the outcome of extensive pre-approval investigations that include environmental review and public consultation. If a US disposal facility is permitted under a state or federal regulatory program to accept waste from another state or Canada, then in our view this constitutes prior approval. Therefore we suggest that Environment Canada assemble a roster of all disposal facilities permitted to accept solid non-hazardous waste from Canada, indicating tonnage or other relevant restrictions if applicable. Environment Canada should then provide a blanket prior consent for waste disposal at any of the facilities listed. This roster should be updated and communicated as changes occur or annually at a minimum.

Information specifying exact ports of entry should not be required because of the flexibility in disposal site utilization required for the reasons indicated previously.

OWMA does not support any requirements for the advance prediction and notification of potential annual tonnage. The attempt to control waste exports on the basis of volume not environmental criteria, is an unreasonable restriction of trade. Advanced predictions of tonnage will be unreliable and misleading. Many companies anticipating securing the same disposal contract will include the same volumes in their individual estimates thereby creating a vastly overstated export potential. Such a requirement could also allow a company to vastly overestimate waste exports with the intent of 'tying up' approved export tonnage. It is conceivable that the receiving jurisdiction may be tempted to refuse additional 'real' imports on the basis of large tonnage estimate increases early in a year.

Tonnage is controlled at the receiving disposal site by permit restrictions both by volume, type of waste and by origin (service area).

It would be more meaningful to require actual export tonnage to be reported at the end of each approval period. This would result in accurate real tonnage statistics and would eliminate any potential for abuse that is inherent in an advance prediction requirement.

The concept of 'flow control' has been judicially rejected in most US jurisdictions as anti-trade.

Waste Reduction Plans:

The requirement for waste reduction plans is not supported by OWMA as an effective program is already in place under provincial jurisdiction. Additional layering of reduction requirements at the federal level will be counter-productive. The requirement of waste reduction plans is discretionary for the Minister and Environment Canada should invoke the concept of equivalency in respect to the Ontario waste reduction program. Difficulties exist in respect to the definition of 'exporter'. Any successful program would need to be focussed on generators not exporters.

The following issues / comments were raised by waste industry representatives and discussed at the stakeholder meeting.

• The Canada - US border must remain 'open' to the transboundary movement of solid waste.
• Any requirement for individual 'load' tracking and individual shipment manifests is unwarranted given the non-hazardous nature of solid waste and the associated low environmental and human health risks. There must be clear recognition of the differences between hazardous waste and non-hazardous solid waste.
• Economic penalties (i.e. fees, levies, surcharges etc.) to discourage solid waste exports is an unwarranted interference in trade and commerce and not appropriately contained in an environmental regulation.
• Any form of regulation of transboundary solid waste movement will have impacts on the industry, municipalities (taxpayers) and the economy. These impacts should be clearly assessed and publicly documented with any proposed regulation.
• Environmental regulations in the US and facility permitting requirements and restrictions are comprehensive and equivalent to Canadian jurisdictions and in particular, Ontario.
• The question was asked as to what the 'benefits' to Ontario or US businesses, taxpayers and the environment would result from this regulatory initiative. None are obvious, but this question is important and needs to be answered.
• The issue of how or if this regulation will affect private IC&I waste was raised and identified as very important to the private sector.
• Construction and demolition waste should be exempted from any regulation because of the benign nature of the material.
• Large industrial waste generators with plants on both sides of the border may ship waste materials for disposal, processing or treatment at captive facilities. Will this regulatory initiative apply to them also?
• Concern was expressed that the Minister may add conditions to export permits with no clear guidelines for the Minister as to what is an acceptable area of interest requiring additional restrictions or conditions. There is no need for 'Export Permits'.
• The question was asked as to whether export consent can be withheld if a waste was not processed for recyclables first.
• The regulatory environment in the US is superior to most other countries thereby minimizing the need for the stringent requirements of international agreements. Is it possible to exempt certain countries like the US, while including others?
• There is no apparent benefit in tracking individual waste shipments. What is to be gained versus the cost to all parties?
• It was confirmed that US waste disposal sites could acquire Canadian export permits under a potential regulation.

A fundamental problem with Environment Canada's position and initiative is that it does not understand the landfill permitting and waste management regulatory processes in the US, and therefore does not know if or where the 'gaps' truly exist in order to meet the Basel Agreement and CEPA commitments. SNC Lavalin should undertake a 'gap analysis' between the US and provincial regulatory systems using the specific requirements of the Basel Agreement and CEPA as the guideline. Then they will understand what if any disparities need to be addressed and the most efficient existing regulatory instruments to utilize so that 'red tape' and regulatory 'layering' is avoided.

March 13, 2000

E-Mail Received From: Helen Spiegelman, Society Promoting Environmental Conservation
Received on: March 11, 2000

Dear fellow stakeholders in the waste export consultation. I found yesterday's meeting (in Vancouver) very interesting. Here's what I observed in our multi-stakeholder encounter:

• government has a need to protect the public interest;
• businesses have a need to create economic opportunities;
• NGOs have a need to keep both of you honest!

Or to put it another way:

• the government are the referees;
• the businesses are the players;
• the NGOs are the true fans.

As an avid fan, I want the regulators to do their job so the players don't take unfair advantage of each other or tear up the playing field so no one can play (ecological collapse is bad for business). But I don't want the referees to interfere so much that it affects the play and the game's no fun.

Regulators feel that the safest way to ensure good behaviour is to cover every detail with a procedure. Businesses feel exasperated that unnecessary bureaucratic procedures waste time/money. What we can't seem to find is balance:

• balance between (economic) efficiency and (environmental) effectiveness,
• balance between (public) transparency and (business) privacy

It was interesting to watch the stand-off several times yesterday. Regulators saying 'what kind of rules do you want?' and haulers saying 'less rules'.

It was depressing to think that after two years of meetings in fancy boardrooms (at public expense), we could end up with another set of rules that will be seen by the industry as a challenge to get around -- or, failing that, as an unnecessary expense that will drive up costs unproductively.

Here's a thought I tried to put on the table yesterday, but I don't know if the facilitators noted it on their flipchart. Unlike bureaucracies, businesses operate in the international marketplace. This positions them well to design streamlined measures to ensure the necessary flow of information to make regulations that are efficient as well as effective.

Why can't the haulers design a cost-efficient regulatory scheme that they thought was economically efficient and show it to the regulators - and challenge them to find reasons it wouldn't meet the need for environmental effectiveness. Turn the process on its head.

This approach brings to mind another kind of balance: balance between trust and vigilance.