7. Prior Informed Consent & Manifest Approaches
Building upon the discussions on key definitional issues in Section 6, this section addresses Prior Informed Consent (PIC) and manifest/tracking alternatives for the proposed prescribed non-hazardous waste (NHW) regulations.
As with the key definitional issues, 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 has also been made to past studies and reports (Section 4) and this project's initial stakeholder contact survey (Section 2.3).
Prior Informed Consent (PIC) is one of the key components of Canada's international obligations in regulating the transboundary movement of NHW.
In this regard, representatives from both the private and public sectors indicated during the consultation sessions (see Appendix D) that the level of control or requirements under PIC should be developed in proportion to the actual environmental risks involved. Concern was noted that the proposed regulations could add an inordinate level of control and bureaucracy. A desire was noted to keep whatever was implemented as simple as possible (e.g., "A contractor should not have to fill out 50 pieces of paper to move a load of garbage"). When dealing with 'one-off' waste streams, further, potential time delays in getting approvals for removal were raised.
It was recommended that a balance be sought between economic efficiency (adherence to new regulations should not waste money) and effectiveness (regulatory structure should not be prone to abuse). In most cases there appeared to be widespread support that the proposed regulatory requirements should be less onerous than for hazardous waste (considering the relative levels of risk involved).
It was also suggested that the proposed regulations probably had more merit when considering transboundary flows to developing countries. In this respect, a list or database might be developed by Environment Canada identifying those jurisdictions (countries) where concerns exist with waste management practices. The full weight of the regulations would then be applied in those situations. With regards to countries with established environmental protection protocols (e.g., United States), the PIC requirements might be minimal.
A variety of more specific PIC-related issues were discussed during the stakeholder sessions. These are reviewed in this section.
A substantial range of opinions were offered during the stakeholder sessions regarding the degree of public consultation that should accompany a PIC process. At one end of the spectrum, it was suggested that notices should be placed in the Gazette, the CEPA Registry, as well as the local newspapers of the host and exporting communities. A suitably defined period for public comment would then follow, perhaps supported by a plebiscite in the host (receiving) community. All gathered input would be considered in the Minster's decision.
Such a substantial degree of public consultation was rationalized based upon past experiences with public acceptance of waste facilities for local disposal but strong opposition concerning the importation of materials to the same locations. It was also recognized, however, that those suggesting such extensive consultation were fundamentally opposed to the concept of export and sought to make export approval as difficult as possible to obtain.
As might be expected, others questioned the need for any consultation to take place. This position was largely based on the non-hazardous nature of the subject waste stream, as well as the public consultation process that is part of disposal facility approvals in many jurisdictions.
Many alternative approaches are possible between the two ends of the spectrum identified above. In their future consideration, a balance will need to be sought between potential environmental risks and public transparency. Associated costs and time delays incurred in implementing any significant level of public involvement must also be given serious scrutiny.
It was suggested during the stakeholder sessions that proof of compliance with current regional, municipal or district solid waste management plans or the concurrence of the authority administering such plans be required in order to obtain an export or import permit. This was thought appropriate in order to help the jurisdiction administer and facilitate local 3Rs initiatives (particularly with regard to IC&I wastes). The exporting province and/or municipality would, as a result, have the right to approve of waste exports (note: this would be in addition to the federal authority contained in CEPA).
The other side of this issue was represented by the suggestion that PIC applications be 'non-generator specific'. In other words, Environment Canada would allow pre-set blanket approvals without the need to identify where the wastes are exported from, and certainly without the consent of the exporting province or municipality.
As with the public consultation issue outlined in Section 7.1.1, many alternative approaches are possible between these two positions. With respect to the first alternative, however, it is questioned how (i.e. with what authority) an exporting province/municipality could legally prevent transboundary movements of industry-generated waste. Any authority in this regard rests with the federal government. Again, associated costs and time delays with any significant degree of government interjection must be given serious consideration.
A wide variety of opinions were forthcoming from this project's consultation program on the necessary frequency for submitting both Notices of Intent as well as for receiving PIC. Ranging from the most intensive to the least intrusive, these included:
- Notices/PIC applications required with every shipment/truck load;
- Notices/PIC applications covering multiple export loads to be filed annually (and be valid for one year);
- application frequency determined by length of tendered contract (e.g., 3 years if working under a 3 year municipal tender) covering all loads transported under the contract; OR
- a one-time, open-ended application with new submissions only triggered by changes in material flows (exporter might be required to file a statement declaring annual status).
While system transparency would be facilitated by more frequent application frequencies, the associated costs and level of effort involved must be taken into account as well as the relatively lower (as compared to hazardous waste) environmental risks inherent in the management of NHW. On the other hand, it might be argued that open-ended or multi-year application frequencies are only paying 'lip service' to the notion of PIC. More fundamentally, neither the Basel Convention nor the Canada-U.S.A. Agreement contemplate covering a period of more than twelve months.
Many participants at the stakeholder consultation sessions appeared to see some merit in requiring proof of regulatory compliance as part of the PIC process. This would appear, however, to be duplicating or second-guessing the PIC process to a significant degree. A difference in opinion was also noted regarding the identification of specific sites versus multiple disposal locations. Alternatives discussed in this regard were as follows:
- require the identification of a single, specific disposal site; OR
- allow the listing of multiple potential landfills under a single application.
As with most other PIC related issues, public transparency and system monitoring would be facilitated with a more focused and specific application process (i.e. the identification of a single disposal location). Taken together with the waste quantity issue discussed in Section 7.1.5 below, an approach allowing multiple listings in PIC might further be regarded as an unworkable departure from the requirements of Basel and the Canada-U.S.A. Agreement. Listing multiple receiving sites would, however, likely be welcomed by the private sector in that it increases program flexibility in their transport/disposal operations while also being reflective of the non-hazardous nature of the handled wastes.
It was also suggested during the consultation sessions that a pre-approved (by the importing jurisdiction) list of acceptable NHW disposal facilities be maintained by Environment Canada, indicating tonnage or other relevant restrictions if applicable. Unless associated environmental concerns were noted, or public opposition had been registered, consent could automatically be granted for their use. Such a system would recognize that some jurisdictions (e.g., the United States) have adequately stringent and comparable standards for landfill design and operations. Such a list would obviously have to be updated on a regular predetermined basis. It would further only work if Canada was able to secure consent from other countries to a departure from the process contemplated by the Basel Convention (or, in the case of the United States, the Canada-U.S.A. Agreement).
As might have been anticipated from Environment Canada's experience with the 1995 pilot voluntary notification program (see Section 4.4), a substantial level of opposition exists with some private firms regarding the notion of listing waste quantities on the export notice. The OWMA, for example, does not support any requirements for the advance prediction and notification of potential waste quantities. They consider environmental criteria to be of more significance and note that advanced predictions of tonnage will be unreliable and misleading. This latter concern is actually supported by Environment Canada's own experience with the notification regulation for hazardous waste exports and imports (they report that the number of applications for such waste far exceeds the actual movements that take place).
Further, the OWMA point out that many companies anticipating securing the same disposal contract will include the same volumes in their individual export or import applications, thereby creating a vastly overstated export potential. This situation could be exploited by a company that might quickly file a Notice of Intent (or overestimate waste quantities) with the objective of 'tying up' approved disposal capacity. The receiving host (importing) jurisdiction may also find itself in the position of having to deny approval for 'real' imports for a particular site on the basis of prior approved export applications. The usefulness of several sets of duplicate figures to the receiving jurisdiction was, as a result, questioned.
For waste imports into Canada, certain provincial environment ministries were suggested to be relatively unconcerned about subject quantities as there are often existing restrictions (service area and tonnage limits) in landfill certificates of approval which must be complied with by the operator. In such situations, the necessity for this information to be provided to the federal government was questioned.
Notwithstanding the preceding, it is difficult to conceive how the PIC process can work effectively or efficiently without waste quantities being part of the required information. In fact both the Basel Convention and the Canada-U.S.A. Agreement require this information.
A further concern of the private sector related to waste quantity reporting is the possibility of future assigned fees or duties (should Environment Canada move to make the application of the proposed NHW regulations economically self-sustaining). One alternative for Environment Canada in this regard may be to simply collect fees with the permit applications, without tying the fee structure to waste quantities.
Several other issues related to the PIC process were also raised during the stakeholder consultations. Outlined below, these issues are grouped together as they did not receive any significant degree of conflicting opinions with regards to their application.
- Proof of Contract - The basic issue raised by the private sector here was that any requirement for proof of contract should not mean that contractual details would be provided to Environment Canada (i.e. commercial contract terms should be protected).
- Tacit Consent - As contemplated by the Canada-U.S.A. Agreement, tacit consent is assumed by the exporting jurisdiction if no objection is filed within 30 days of issuing the Notice of Intent. Such a process is also favoured by private sector waste management firms for the proposed NHW regulations.
- Port of Entry - Several options are theoretically possible concerning the identification of port of entry to the receiving country. These include: identification of a specific port of entry (as with hazardous waste); allowing several ports of entry to be listed (increases flexibility for hauler); and, removing the requirement to identify port of entry. Both Basel and the Canada-U.S.A. Agreement require port of entry information to be provided on the Notice, however.
Tracking and manifest requirements will, to a certain extent, be dependent upon the type and degree of information collected under the Notice of Intent or PIC process. For example, if waste quantities were not to be reported under the initial application procedures, it would not be necessary to subsequently track this information.
As noted during the consultation sessions, some provinces have become very focused on removing red tape and do not want to hinder the competitiveness of private industry. They further recognize that the environmental risks with NHW don't warrant the same precautions as with hazardous waste. The need for creative, practical approaches to tracking and manifest requirements was emphasized by several parties. The Canada-U.S.A. Agreement specifically contemplates this for 'Municipal Solid Waste' transboundary movements.
Alternative approaches with regards to tracking and manifest issues are discussed below.
The concept of a self-administered (honour) system in which waste exporters/importers would file reports on some pre-established frequency (i.e. quarterly or annually) was discussed during the consultation sessions. Such reports would be periodically (or randomly) confirmed/checked at Environment Canada's discretion to look for possible discrepancies.
While most session participants recognized the benefits of simple and practical approaches to tracking and manifest requirements, most also felt that the system should not be voluntary. This opinion was based, in part, on Environment Canada's lack of success with the 1995 pilot voluntary notification program (see Section 4.4).
As noted in Appendix D, some participants at the consultation sessions felt that tracking and manifest records held by Environment Canada should be made public without the need for prior industry consent as is the current practice. This issue was of particular concern to environmental groups who believe that the public has a right to know about waste movements. There was also the concern that a request under the federal Access to Information Act might not allow one full access to these records.
It was further suggested by some, however, that a balance should be struck between transparency and privacy. Some private information, it was suggested, would have no implications to the issue of environmental protection. Additional discussions were recommended with the private sector on an appropriate level of disclosure.
While a variety of approaches to tracking and system reporting were suggested by session participants, they were generally classified as being either electronic or paper-based. Input in this regard included:
- multi-carbon papered manifests should be completed manually and carried through all parts of journey (i.e. from cradle to grave). Such a system might be supported by permit numbers on the trucks to allow Customs to efficiently record information; OR
- electronic based manifests, similar to systems used by courier companies, could be employed. The use of bar codes on trucks and/or manifests were also suggested to speed up information processing at the border. The OWMA further suggested the use of electronic keys at the border (it was noted that the government has the capability of allowing trucks to use such keys to help automatically track shipments).
While, as noted above, a variety of opinions were received on this issue, there also did not appear to be any significant opposition to the use of an electronic system, particularly for tracking purposes. Most participants recognized the inherent advantages of such an approach.
A variety of opinions were forthcoming from session participants as to an appropriate reporting frequency. Options suggested in this regard included:
- weekly or monthly reports to be submitted;
- annual reporting; OR
- electronic tracking in place of any reporting requirement for the exporter (government can compile at whatever frequency it deems appropriate).
With any approach, periodic audits or spot checks might be employed to ensure compliance. In the event that longer application periods are deemed appropriate for PIC requirements, the necessity of submitting weekly or even monthly reports is questioned. Annual reporting or electronic tracking appeared to receive the most support during the stakeholder consultation sessions.
Probably the most debated topic relative to tracking and manifest issues was the degree of reporting required from the waste hauler. While the merits of a simple approach were recognized by some parties, others felt that a full manifest system as in-place for hazardous wastes should be employed. Related options suggested in this regard essentially fell between the following two approaches:
- Manifests be prepared for each shipment (i.e. not blanket approvals as for PIC), to support regular data analysis. Further, manifests to be filled out and carried by all parties that handle the waste regardless of the number of times it changes hands. As with hazardous waste protocols, a copy would be dropped off at Customs and the final section of the manifest would be completed by the receiving facility (i.e. essentially acting as a "death certificate"). The receiving facility would also be required to certify that the particular waste process intended to be carried out was indeed implemented; OR
- Manifests not required with transported shipments. Further, certificates from the receiving facility as to the fate of the imported waste need not be submitted (it is being disposed of in an approved facility) and no additional paperwork (over that presently in place) would be necessary for Customs.
Associated issues related to the above are similar to those described earlier with other PIC and tracking/manifest approaches (i.e. public transparency and system monitoring vs. cost effectiveness and flexibility). Regardless of the ultimate approach adopted, it was suggested that Environment Canada prepare an Annual Report to inform the public of how much waste is crossing border and where it is going to (or coming from).
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