6. Definitional Issues and Waste Reduction Plans
Certain definitional issues need to be addressed as key elements to the development of regulations for the 'export and import of prescribed non-hazardous wastes destined for final disposal', as some of these terms are not defined in CEPA 99. First, with reference to the term 'prescribed non-hazardous wastes', the new regulations require a definition of the term waste, and a list of materials that will be prescribed as non-hazardous wastes. Second, in reference to the term 'destined for final disposal', 'final disposal' needs to be defined. In both cases, it will be useful to consider the definitions contained in international agreements to which Canada is a Party, and relevant domestic definitions.
The last substantive issue relates to 'waste reduction'. Environment Canada has long held the position that while the transboundary flow of wastes remain possible (i.e. the borders remain open), such flows are to be minimized to the extent practical consistent with the principles of environmentally sound management. This position is consistent with both the Basel Convention as well as CEPA 99 (see Section 3). In the formulation of the proposed NHW regulations, therefore, the issue of what constitutes effective waste reduction planning needs to be addressed.
These issues are discussed in this section. As apparent, substantial reference has been made to input received during (and after) the February/March, 2000 stakeholder consultation sessions. This input is provided in Appendix D. Reference is also made to past studies and reports on the transboundary flow issue (Section 4) and this project's initial stakeholder contact survey (Section 2.3).
Whereas CEPA 88 contained a definition of hazardous waste, CEPA 99 does not as the intention was to define 'waste' by regulation. In that regard, Environment Canada has been working in concert with the provinces under the aegis of the Canadian Council of Ministers' Hazardous Waste Task Group (CCME) to develop a national definition of waste. Two multi-stakeholder consultation sessions (in December 1996 and January 1999) were held where the proposed definition of waste was presented and discussed based on the consensus of the CCME. The currently proposed definition is as follows:
This proposal is consistent with the definition of waste in the Basel Convention which defines wastes as follows: "wastes are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law."
Discussions on the definition of waste will continue as part of the regulatory development process. It is the intention of Environment Canada to incorporate the ultimately adopted definition in all federal legislation concerning the control of movements of wastes (pursuant to Division 8 Part 7 of CEPA 99), including any regulation concerning the export and import of prescribed non-hazardous wastes destined for final disposal.
As has been stated in several past reports (see Section 4), a clear and unambiguous list of which wastes will be 'prescribed' under the proposed regulations is also necessary. This issue is important to provide clarity to private and public sector entities involved in this trade.
This section should be read in conjunction with Section 6.2 which examines the definition of 'final disposal'. Depending upon the definition ultimately adopted for final disposal, some material streams will (as a result of their end fate) be effectively excluded from the proposed regulations, regardless of whether or not they might otherwise be 'prescribed' wastes.
It was suggested during the consultation sessions that the ultimately adopted list of prescribed NHW be consistent, as far as possible, with those in provincial regulations. There is much to be said for this suggestion, given that most waste regulation occurs at the provincial level. Concern was also expressed, however, that there is no consistent definition in the current provincial regulations. Such regulations are also subject to change.
The starting point when considering what wastes should be 'prescribed' might, therefore, be the Basel Convention. As noted in Section 3.1, Annex II of Basel includes "Other wastes" which lists two waste streams to be controlled as follows: household wastes and the residues from their incineration. The second point of reference would be the Canada-U.S.A. Agreement (Section 3.3). As amended in 1992, this Agreement also includes reference to "other waste" although in this instance this term is associated with municipal solid waste (as defined in domestic regulations) and incineration residue. Both terms arguably focus upon the origin of the waste stream.
Some of the issues and concerns noted by participants in the stakeholder consultation sessions with respect to these terms included:
- the terms household waste and, particularly, municipal waste are ambiguous and require clarification. It was suggested that waste is difficult to classify according to its point of origin;
- the identification of other waste as household waste in Basel appears to be expanding under the Canada-U.S.A. Agreement and, possibly, CEPA without apparent rationale. It was also suggested that the Basel Convention requirements were intended more for restricting waste to developing countries and there is not as much of a concern with American transboundary movements (Note: the Basel Convention requires Parties to control all transboundary movements, whether they are destined to developing or developed countries);
- neither term adequately address the way in which NHW is currently handled (i.e. collection trucks may pick up both municipal and commercial waste and waste transfer facilities may receive and co-mingle both residential and IC&I waste);
- both terms may exclude certain materials that are more commonly exported and destined for final disposal (such as construction and demolition debris). It was suggested that such excluded materials are still capable of generating adverse environmental impacts after disposal while also being very recyclable - they should, therefore, be discouraged from export (Note: the basis for the proposed regulations is a Prior Informed Consent procedure, and not the discouragement of transboundary waste movements); and
- a number of other special wastes, not explicitly handled by hazardous waste or non-hazardous waste definitions, would be left unattended.
Given the above, the issue of what materials should be prescribed should be carefully considered.
Further to the preceding, certain specific waste streams were identified as of concern during the stakeholder consultation sessions. These included: refrigerators* (CFC/freon issue); used tires; mixed plastics; special wastes from large industrial generators (e.g. expired cosmetics, paper sludge, foundary sand, etc.); gypsum; asbestos wastes*; residual material reused in an industrial process; contaminated soil*; autoclaved biomedical* or other sterilized wastes; international shipping (cruise ships) and airline wastes; as well as sewage treatment plant screenings. Some session participants expressed the concern that if these wastes were not 'prescribed' they should be subject to some other form of regulation (Note: preceding waste streams denoted with an asterisk (*) are already partly covered by the Export and Import of Hazardous Wastes (EIHW) Regulations).
Several alternative approaches to the definition of prescribed wastes were suggested during the stakeholder sessions. These alternatives, and some of their potential issues, are described below.
As outlined earlier, the CCME undertook a thorough review of the definitions and criteria which apply to the classification of hazardous waste and, more to the point of relevance to this report, the definition of 'waste' itself. The CCME has proposed the following definition of 'waste' as:
Recyclable material, as proposed to be defined by the CCME would include: "any material that is being recycled, destined for recycling or is required to be recycled, and does not include waste or any material used for its original purpose".
Based on the forgoing, one possible approach may be to prescribe all materials captured by the CCME's definition of 'waste' and that are not "hazardous wastes" under the Export and Import of Hazardous Wastes Regulation. This would provide for complete coverage of wastes under the federal regulatory scheme without the possible complications of inconsistent provincial definitions (alternatively, a limited number of non-hazardous waste streams could be prescribed -see Section 6.1.4). The key definitional issue under this approach, therefore, would be that of 'final disposal', which would operate to exclude from the regulation non-waste related activities and legitimate recycling.
This approach would also capture certain commonly exported materials (e.g., construction and demolition debris) that have been suggested as still capable of generating adverse environmental impacts after disposal while also being very recyclable. It may also satisfy some of the concerns related to the previously mentioned special wastes which are not explicitly handled by hazardous waste definitions.
The key disadvantage to this approach as noted by the private sector relates to the concern over 'expanding definitions' of subject wastes from that in the Basel Convention and the Canada-U.S.A. Agreement (and the corresponding impact on cost of operations). As was argued during the consultation sessions, some waste streams under this definitional approach may be essentially comprised of innocuous or inert materials.
One other (minor) disadvantage with such defined waste streams is that they will still have a portion of hazardous waste (e.g. household hazardous waste) mixed in with the waste loads.
Essentially the premise of this approach is that any material that has a negative economic value (i.e. one has to pay to get rid of it) is a waste. Conversely, any material that has a positive economic value (i.e. someone pays you for it) is not a waste but is a recyclable material. While elegantly simple in its approach, several potential weaknesses for this definitional approach are apparent:
- the market value of materials can fluctuate widely over relatively short periods. What has a positive economic value one day may have a negative value thereafter, even though the subject material may still be considered as recyclable;
- further to the preceding, if a material that is recycled does not generate a profit, does that make it a waste?
- private sector firms wishing to circumvent a negative value to hauled waste may set up shell, non-arms length companies with which to trade falsely valued materials; and
- while a waste may have an associated cost for disposal, it may also have a positive avoided cost (i.e. net cost/savings may be positive if it is cheaper to dispose of elsewhere).
Due to these difficulties, regulators have in the past refrained from defining wastes using an economic value, and have preferred to provide more clarity to the regulated community.
Under such a scenario, allowable pre-established percentages (by mass or volume) of waste stream components would be stipulated for transboundary material flows. For example:
- in the event that the proposed regulations are specific to only certain components of the NHW stream, a maximum percentage of residential waste could be set. For instance, if construction and demolition materials were not designated in the regulation and a truck load of such waste contained residential refuse in excess of this percentage, the shipment could be deemed to be designated wastes; and/or
- should concerns exist that hazardous waste is contained within NHW flows, a maximum limit of hazardous materials (e.g., HHW waste) could be stipulated - this may in turn motivate generators to pull more of these materials out of the waste stream.
Disadvantages of such an approach include difficult, time consuming and costly enforcement requirements, especially considering the somewhat limited resources of customs agents and environmental inspectors. Further, such a regulation may be particularly susceptible to abuse in that higher than permitted proportions of designated materials might be easily hidden in transported loads.
Alternately, all waste streams of concern could be listed. Such a list would have to include both waste streams of Annex II of the Basel Convention (household wastes and residues from their incineration), and any other waste stream of concern.
A substantial degree of discussion took place in the stakeholder consultation sessions concerning the definition of 'final disposal'. As with the definition of prescribed wastes, this issue must also be addressed both to provide clarity to private and public sector entities involved in waste export and import and to ensure that there are no adverse impacts on the legitimate waste diversion sector.
As with the preceding section on prescribed wastes, the following discussion cannot be considered in isolation. Depending upon the definition ultimately adopted for 'prescribed waste', some material streams may be effectively excluded from the proposed regulations regardless of whether they would otherwise be considered to be destined for 'final disposal'.
Defining final disposal as per Schedule I, Part I of the EIHW Regulations would be the simplest and perhaps most easily enforced regulatory approach. It might also be argued as the most consistent approach to meet the intent of the international legislation which entails the foundation for the proposed regulations, as Schedule I, Part I of EIWHR is based on Annex IV of the Basel Convention. In this respect, a notification would be triggered if a shipment of prescribed non-hazardous waste is destined to any of the disposal operations listed, whether they are environmentally sound or not.
When reviewing Schedule I, Part I of the EIHW Regulations, it is apparent that most if not all of the shipments of concern would be destined to two specific operations: Item 5 which is "Specially engineered landfilling, such as placement into separate lined cells that are capped and isolated from each other and the environment" and Item 10 which is "Incineration on land".
Such an approach would likely receive the most support from the private sector (to the extent that it supports the proposed regulations) and should be the simplest to confirm and police.
The primary disadvantage with such an approach is that it is not responsive to the concerns from certain sectors (particularly from non-governmental organizations) that have expressed a desire for a more aggressive approach to promote waste recycling/diversion. With respect to the concern that some landfills may be considered to not meet the concept of environmentally sound management, it should be noted that CEPA will give the Minister permission to refuse permits to such substandard facilities.
Some questions were raised during the stakeholder consultation sessions as to whether disposal facilities would be treated any differently if, for example, the site is providing energy recovery (i.e. as per Schedule I, Part II, item 1. of the EIHW Regulations, an operation using waste as a fuel in an energy recovery system is defined as recycling, which might not be controlled under a regulation concerning the export and import of prescribed non-hazardous wastes destined for final disposal). The issue of a disposal site receiving waste for the ultimate purpose of land reclamation was also raised with the suggestion that this is beneficial in that it conserves the use of clean soil or fill (again, with reference to Schedule I, Part II of the EIHW Regulations, item 10 defines land treatment that results in agricultural or ecological improvement as a recycling operation). Other questions concerned the use of waste materials for road bed construction, as fertilizer or for soil additives, and whether any or all of these should be considered 'final disposal'.
The suggestion was made at some of the consultation sessions that any receiving facility that takes unsorted and even unprocessed waste materials should be viewed as a waste disposal facility. This would include a wide variety of waste management facilities such as landfills, incineration and energy-from-waste (EFW) facilities, plants producing refuse derived fuel (RDF), or other processes (pyrolysis, gasification, mixed waste processing operations, and possibly composting facilities) that accept waste materials that have not been pre-sorted or possibly preprocessed. The rationale in part for this position was that even legitimate mixed waste processing facilities can involve significant disposal and that some of these technologies are unproven in terms of their real diversion potential.
Such an all-inclusive definition was suggested by certain session participants even though it was recognized that in various jurisdictions, some such processes (e.g. EFW in British Columbia) are defined as recovery. Other session participants expressed the hope that re-use for energy purposes would not be included in the definition of final disposal. Others questioned the merits of exempting waste exports from this regulatory scheme where an energy producer wished to burn tires as a replacement for coal.
One suggested refinement of such a definitional approach was that all waste systems should be considered as final disposal unless full product recycling is proven. Recycling capacity for a particular waste stream in another country would have to be demonstrated by the exporter jurisdiction and markets must be shown to exist for the targeted materials. In this same vein, it was asked how the federal government would practically monitor compliance.
Such an approach should act to not impede the historic trade in bona fide recycled materials (e.g., it should allow flows of baled paper destined for recovery to be clearly distinguished and excluded). A wide net for the definition of 'final disposal' would, however, help ensure that specific facilities with a disposal function do not by-pass the regulation's control.
Disadvantages with this form of definition include the extensive degree of non-hazardous waste movements that would be captured by the regulation. Further, if most waste management facilities are considered as 'disposal-oriented', there may be less impetus to send materials to facilities that provide real waste diversion.
As noted in Section 3, the Basel Convention requires signatory countries to take measures to minimize both waste generation as well as transboundary movements, subject to local limitations with regards to social, economic and technological factors.
Currently, although national guidelines exist with respect to waste diversion (e.g., CCME's 50% target for reducing waste by the year 2000), waste reduction is generally understood to fall under the primary jurisdiction of the provinces and territories. As might be expected, there is not a consistent approach on the part of these jurisdictions. Not infrequently, responsibility for waste diversion is left to local municipalities or districts.
Most provinces address waste minimization and recycling through various acts and supportive regulations and guidelines focusing upon environmental protection, quality and enhancement. Many of these legislative initiatives have a heavy emphasis on the municipal sector with the degree of attention paid to the IC&I sector varying significantly. In some cases, specific corporations and/or resource recovery funds (some industry based) have been set up to encourage and support 3Rs activities as opposed to imposing direct government interjection. Promotional and public education programs are common as are initiatives aimed at beverage container and tire recycling. Some provinces stipulate mandatory actions with regards to such activities as blue box or leaf and yard waste composting programs. Further, some provincial initiatives also include a focus on waste packaging supported by coordinated action at the national level.
With regards to the development of the subject regulations, concerns were expressed during consultation as to how the Minister plans to apply this new authority in relation to waste reduction planning. Interference with provincial jurisdiction was an issue for some stakeholders although it was recognized that the federal government has the jurisdiction to manage international trade. Most participants, however, agreed with the general aim of CEPA 99 and the proposed regulations to promote waste reduction, subject to clarification on who would be considered to be the "exporter" for the purposes of these provisions (Note: the general aim of CEPA 99 is not 'waste reduction' per se but more the phasing out or reducing of exports destined for final disposal).
Several alternatives are possible in considering potential approaches to requirements for demonstrating waste reduction planning. These are discussed in this section.
Under this option, the Minister would not exercise his new authority under CEPA to require waste reduction plans given that waste generators are assumed to already be complying with their applicable provincial requirements. To the extent that waste reduction progress is seen to be lagging in this regard, it was argued by some that it is the province's (and not the federal government's) responsibility to promote reduction.
This approach relies on the premise that all jurisdictions in Canada (and the U.S. in the case of imports) are already taking satisfactory measures to minimize transboundary movements of waste for disposal. The primary advantage of this alternative is that it eliminates the need for Environment Canada to extend its mandate into an area considered by many to be provincial jurisdiction (again while recognizing that the federal government has jurisdiction over international trade). Instead, each province would set waste reduction goals appropriate to local circumstances. Consideration could be given to equivalency agreements if existing provincial programs address the need to phase out or reduce exports of wastes destined for final disposal as per CEPA 99.
In practice, under this approach, a waste hauler might be required to reference an approved municipal/district waste master plan or reduction plan as a condition of permit. Disadvantages of this approach include:
- it is arguably not consistent with Canada's obligations under the Basel Convention to reduce waste generation;
- not all jurisdictions have the same level of enthusiasm for waste reduction or the same coverage of sectors generating waste (somewhat illustrated by a lack of statistical data supporting decreasing levels of waste export for final disposal); and
- provincial policies in this regard may change with each election.
With this approach, duplication should be avoided in any reporting requirements between the different levels of government.
Under this option, as part of the Prior Informed Consent procedure (see Section 7.1), effective waste reduction planning would be required to be demonstrated specific to the waste generator. This requirement would extend to all sectors (municipal and IC&I) and to all waste streams for which export permits are requested. Upon the submission of a waste reduction plan, annual reporting might then be stipulated to demonstrate the projected implementation and success in meeting the stated targets prior to receiving any subsequent permits. All relevant supporting documentation would have to be initially obtained from the generators by the exporter and then submitted to Environment Canada.
While it might be suggested that private sector waste management firms involved in the export be defined as "exporters" for this purpose and assume responsibility to demonstrate effective waste reduction (or, as suggested during the consultation sessions, be required to offer waste reduction services) such an approach may be impossible or impractical in practice and at a minimum would result in potentially significant costs and burdens. Private sector haulers have no legal authority over their generator clients and little meaningful ability to influence their waste generation. Waste generators might also start to 'shop the market' for firms that are more pliable in enforcing waste reduction planning.
This issue might be less of a concern depending upon the definition of 'exporter' employed. Taking general guidance from Section 6(e), Conditions on Exports for Disposal, of the Export and Import of Hazardous Wastes Regulations, an exporter may be defined as a person:
- whose activity generated the waste;
- who is removing the waste, from a site that the person owns or operates, for disposal; OR
- who collects or receives the waste and then processes it for disposal.
Based on the above, private sector firms that simply collect and transport wastes would not be defined as waste exporters.
Another disadvantage with the mandatory submission of waste reduction plans includes the significant federal government resources that would be required for permitting, review and policing. This is particularly true if each generator (municipal, commercial, industrial and institutional) was required to develop and file a waste reduction plan.
This option could be streamlined in the future with a more focused approach on the part of Environment Canada. In this respect, a data base could be assembled over time to demonstrate achieved levels of success in waste reduction planning. As some exporters would fall behind the average for their sector, Environment Canada could use the accumulated data to progressively focus its attention to these areas. Such focused approaches are discussed in more detail below.
This option is premised upon the recognition that some exporters are of less concern than others. For example, some exporters or classes of exporters may be widely considered to be lagging generally accepted practices with regards to waste diversion. Further, as was suggested by some during the stakeholder consultation sessions, certain sectors (e.g., construction and demolition) may be perceived as generating waste materials that are of lesser concern. This option, therefore, could take several different approaches, including:
- focus requirements on known significant exporters (e.g., larger waste generators) or classes of exporters and consider setting a threshold (by regulation) for annual waste exports above which the requirement to develop, submit and implement waste reduction planning would apply;
- 'pre-approve' certain sectors that demonstrate a level of equivalency with some form of pre-determined standard;
- focus requirements away from less environmentally significant waste streams (e.g., construction and demolition debris); and
- concentrate requirements for waste reduction planning upon those sectors with more established end markets that are supportive of material recycling (e.g., beverage containers);
- OR, concentrate requirements for waste reduction planning upon those sectors with emerging and less established recycling infrastructures that could benefit from some degree of regulatory support (e.g., plastics).
The basic premise behind more focused requirements for waste reduction planning is to lessen the number of plans that must be prepared and reviewed while being consistent with Canada's Basel obligations. A focused strategy would also direct attention and limited public sector resources to those areas of more apparent concern. One key disadvantage with such focused approaches is that different rules for different sectors could be viewed by some as discriminatory and, depending upon how they are developed and applied, arbitrary. Compliance with international obligations is a further concern.
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