3. Regulatory/Policy Background

Several regulatory and policy initiatives concerning the transboundary movement of wastes form part of the backdrop to this discussion paper. As described herein, many of these initiatives deal primarily with hazardous wastes, however they are relevant to any actions by Environment Canada in non-hazardous waste (NHW) control.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is an international treaty under the United Nations Environment Program. Notwithstanding the title of the Convention, it covers the final disposal and recycling of hazardous wastes and "other wastes"; the latter defined as household wastes and the residue from their incineration (Annex II). Recycling of wastes is encompassed within the term disposal for the purposes of the Convention.

The Convention opened for signature on March 22, 1989 and entered into force on May 5, 1992. Over 130 countries and other parties have ratified or otherwise accepted the Convention (Canada ratified in 1992) with the significant exception of the United States. The United States signed the agreement on March 22, 1990 but has not ratified it.

The Convention requires each party to take appropriate measures to (among other things):

The Convention places primary responsibility for control of transboundary movements on the exporting country and requires that the exporting country not allow such movements without the written consent of the importing country (i.e. a prior informed consent or PIC procedure). It also requires that parties ensure that any export is managed in an environmentally sound manner. The Convention further requires transboundary shipments to be accompanied by a movement document or manifest and provides that the advance notifications of proposed waste shipments may cover multiple shipments during a maximum period of twelve months.

Each shipment must be packaged, labeled, and transported in conformity with generally accepted and recognized international rules and standards. The exporter must also provide for readmission of exports if returned by the country of import. Both the exporter and the exporting state must be informed of the receipt and ultimate disposal of the waste. National legislation is to be in place to prevent and punish illegal traffic.

In accordance with the Convention, a party shall not permit hazardous wastes to be exported to or imported from a non-party. Article 11 of the Convention, however, recognizes existing bilateral, multilateral and regional agreements with parties or non-parties to the Convention at time of ratification provided that such agreements are compatible with the environmentally sound management of wastes. It also allows Parties to sign new bilateral, multilateral or regional agreements, provided these do not derogate from environmentally sound management. The Canada-U.S.A. Agreement, described below, is an example of an agreement that was in place prior to Canada's ratification of the Convention.

All exports, whether for recycling or disposal, are prohibited where the receiving country has banned or not consented to such imports. This may include some materials considered hazardous by the receiving country, but not by Canada.

Canada implemented its principal obligations under the Basel Convention with the Export and Import of Hazardous Waste Regulations under the Canadian Environmental Protection Act (CEPA) in 1992 as noted in Section 3.4, below.

The Organization for Economic Co-operation and Development (OECD) has also been active in attempting to control the transboundary movements of hazardous wastes and recyclable materials. A 1984 decision by the OECD requires the exporting country to provide adequate and timely information to the importing country. The appropriate authorities in the country of destination then have the option of consenting or objecting to the proposed shipment.

OECD Council Decisions are legally binding on all member countries that accept them. There are 29 member countries in the OECD including Canada and the United States.

Of particular interest is the three-tiered system (green, amber, red) developed in 1992 to apply to controls of recyclables. Green tier materials (non-hazardous recyclables) are to be subject to normal commercial controls only. Amber tier materials are those that pose a moderate risk. In this case, shipments can occur provided that a prior informed consent is obtained in advance of any shipment (the consent is either expressed, tacit or conditional), and the Council Decision also requires a valid written contract starting with the notifier and terminating at the recovery facility. In the case where a recyclable material cannot be managed as intended in the notification, financial guarantees for alternative recycling or disposal and required notification for re-export are further stipulated. Red tier recyclables are those hazardous materials deemed to pose a high risk. In this case, the same controls as with amber tier recyclables are mandated except that written consent prior to movement must be received from the importing and any transit countries.

In April 1997, the Environment Policy Committee of the OECD directed one of its subsidiary bodies, the Working Group on Waste Management Policy, to identify areas where it would be feasible and appropriate to harmonize the procedures and requirements of OECD Council Decision C(92) 39/Final (concerning transboundary movements of wastes destined for recovery operations (i.e. recyclables)) with those of the Basel Convention. A number of recommendations were made by the Working Group including that the OECD Control System should be harmonized with the Basel Convention by: (i) replacing the OECD green, amber and red lists of recyclables with Annexes VIII and IX of the Basel Convention; (ii) applying the green procedure to Annex IX wastes; and the amber procedure to Annex VIII wastes; and (iii) eliminating the present OECD Review Mechanism other than in exceptional cases.

The Canada-U.S.A. Agreement on the Transboundary Movement of Hazardous Waste (including hazardous recyclable materials) came into effect in November, 1986 and is renewed every five years unless a Party withdraws. Under this Agreement, the two countries are responsible for ensuring that domestic laws and regulations are enforced regarding transportation, storage, treatment, and disposal of transboundary shipments.

The basic scheme of the Canada-U.S.A. Agreement is similar to that of the Basel Convention. It provides for notification to the country of import by the country of export of proposed transboundary hazardous waste shipments (including recyclable materials) covered by the Agreement. As with the Basel Convention, the notice may cover an individual shipment or a series of shipments extending over a twelve-month period. Under the Agreement, the country of import has thirty days from receipt of notice to respond, indicating its consent, (conditional or not) or its objection. If no response is received within that period, the country of import is deemed to have no objection and the export may take place conditional upon compliance with the laws of that country. Shipments of wastes and hazardous recyclable materials require a manifest. The exporter must provide for readmission of exports if returned by the country of import.

The Canada-U.S.A. Agreement was amended in November, 1992 to also cover "other waste", defined to mean Municipal Solid Waste that is sent for final disposal or for incineration and the residue arising from the incineration of such waste (as per Annex II of the Basel Convention). Municipal Solid Waste is to be interpreted as defined by each country's respective national legislation and implementing regulations.

The 1992 amendments noted that manifest-related requirements in the original Agreement could, with respect to other waste, be substituted by alternative tracking requirements. As there were no supportive Canadian federal regulations in place, it was indicated at that time that during the five year review of CEPA, the Department of Environment (DOE) would seek authority for regulating control mechanisms on the import and export of these wastes.

The Export and Import of Hazardous Wastes Regulations, promulgated under CEPA in 1992, were designed to fulfill Canada's international obligations for hazardous waste export and import (including hazardous recyclable materials). The regulations provide a control/monitoring function requiring hazardous waste exporters to obtain prior consent for transboundary shipments, meet environmental liability insurance requirements, and take all practicable measures to ensure that the disposal or recycling in the receiving country is environmentally sound.

The regulations, monitored by the Transboundary Movement Division of Environment Canada, ensure that transboundary movements handling and disposal of hazardous wastes occur in approved facilities and in a manner that is protective of human health and the environment. Definitions of hazardous wastes and hazardous recyclable materials are consistent with those of the Basel Convention and OECD Council Decision C(92)39/Final. The regulations included the three-tier system of waste controls (green, amber and red) noted above in Section 3.2.

Key to the regulations is a notification and manifest system. This system requires that a Notice of proposed export, import or transit be submitted to Environment Canada prior to shipment. This allows the receiving jurisdiction to review the hazardous waste or hazardous recyclable material in relation to its destination and to provide consent to Environment Canada before shipment. Each Notice is valid for up to a year and may represent a number of shipments over that period.

Once a Notice has been approved, shipments are accompanied by a Canadian Waste Manifest, which describes the hazardous waste along with a copy of the Notice and confirmation letter issued by Environment Canada. A copy of the Manifest is sent to Environment Canada by the exporter when the shipment leaves a facility and a copy is dropped off at Customs when crossing the border. This copy is also to be forwarded to Environment Canada. A third copy is to be sent to Environment Canada by the receiver of the waste/recyclable material. Once the hazardous waste has been disposed of or the material has been recycled, a Certificate of Disposal/Recycling is also to be forwarded to Environment Canada confirming the completion of the operation.

CEPA 99, which revokes and replaces CEPA, came into force on March 31, 2000 and contains revisions which pertain to the control of prescribed non-hazardous waste destined for final disposal (Division 8 of Part 7, CEPA 99: Controlling Pollution and Managing Wastes). It should be noted that there is no authority provided therein to control the export and import of prescribed non-hazardous wastes when they are destined for recycling.

Section 185 in CEPA 99 addresses notification and permitting issues as follows:

Section 187 in CEPA 99 requires the Minister to publish information on proposed imports, exports and transits. Section 188 gives the Minister authority to require an exporter, or a class of exporters, to submit a plan for reducing or phasing out the export of prescribed waste for final disposal and also to implement that plan. The Minister is permitted to refuse a permit to an exporter who does not comply. In accordance with Section 191, such plans should take into account the benefit of using the nearest appropriate disposal facility, and changes in the quantity of wastes generated due to increased production of goods. Section 190 of CEPA 99 allows the Minister to issue permits based on equivalent environmental safety levels for any waste import, export or movement activity that does not comply with the revised Act or the regulations.

Section 191 of CEPA 99 gives the Governor in Council authority to make regulations for the purpose of carrying out the foregoing provisions (e.g., notice information requirements, waste and material classifications, etc.). It is this authority which forms the basis of the regulatory initiative that is the subject of this discussion paper.

Provincial legislatures also have the ability to control NHW imports and exports indirectly through legislation and regulations directed at the use of provincially permitted waste disposal facilities.

For example, in Ontario, the province can and does impose service area restrictions on NHW disposal sites under the Ontario Environmental Protection Act. Counties that assume the waste management powers of their lower tier municipalities are given "flow control" powers under the Ontario Municipal Act by which they can direct the flow of municipal waste to County-owned recycling and disposal facilities. Material bans have further been enacted at some municipal sites to maximize material diversion.

Section 115(2) of the Regulation respecting Solid Wastes adopted pursuant to the Environment Quality Act of Quebec prohibits any landfilling of waste generated outside specific regional jurisdictions. In 1988, the Quebec government noticed an increase of imported waste for landfilling, especially in the Eastern Townships, close to the American border. The Sanipan site was receiving most of this waste. The Regulation resulted in a court challenge by Les Enterprises de Rebuts Sanipan Inc.

According to Quebec Superior Court, the Environment Quality Act showed an intent to control land use which was taken to also affect the use landfill operators could make of the land. The Government considered it necessary to stop waste imports both because a saturation of available landfills was foreseen as well as to prevent serious heritage (land-based) impacts. The issue of wastes being a potential source of environmental contamination was also noted.

The Court held that because a landfill's only activity is to bury waste and the province has exclusive constitutional jurisdiction over its land, and as the Regulation's purpose was to reduce the quantity of waste disposed and the number of landfills, in accordance with Government policy aimed at preventing further soil contamination, the Court concluded the Regulation was constitutionally valid. An argument against the Regulation based on the North American Free Trade Agreement was rejected as it was not domestic (Quebec) law and because the Court considered that importing waste could not be considered as trading goods.

Further to the preceding, other examples of provincial policies or regulations in place to prevent or discourage waste imports include:

Attempts continue in the U.S. Congress to introduce legislation imposing limitations on the receipt of out-of-state municipal solid wastes (MSW) and to authorize state and local controls over the flow of such waste. Four such Bills have been introduced in the most recent 106th Congress, although none of the proposals have resulted in a change in US federal policy so far.

H.R. 1190, the Solid Waste Interstate Transportation and Local Authority Act of 1999, would amend the Solid Waste Disposal Act to prohibit a landfill or incineration facility from receiving out-of-state MSW unless the waste is received pursuant to a host community agreement or an exemption from this prohibition. The Bill also authorizes states and local governments to establish limits on the amount of out-of-state waste received annually for disposal at each facility. The Bill further allows states to pass laws to deny or refuse to renew a permit for construction, major modification or operation of a MSW disposal facility if the state has approved a MSW management plan and such denial is based on a determination that there is no need for the facility in the state. Finally, the Bill allows states to impose cost recovery surcharges on the processing, combustion or disposal of out-of-state waste.

Three similar Bills (S.533, S.663 and 872) were also introduced in the U.S. Senate in the 106th Congress. Hearings were held on all three by the Senate Committee on Environment and Public Works in June of 1999.

New criteria for landfill design and operation were incorporated in the U.S. Resource Conservation and Recovery Act (RCRA) Subtitle D regulations promulgated in 1991. The regulations became effective October 1993. The Subtitled Regulations imposed strict controls over American landfill operations and set forth minimum criteria with respect to location, operation, design, monitoring and corrective action, closure and post closure care and financial assurance. The regulations were expected to result in the closure of some sites which could not meet the new criteria.

Some American sites reduced fees in 1992 to attract more waste in advance of the stricter regulatory requirements. Few landfills actually closed, however, and relatively low prices have persisted at many sites. The economies of scale available at larger regional landfills have been suggested as one reason for prices to have remained low. Other factors in this regard are likely the presence of long term contracts, hauler obligations, and the use of integrated company facilities.

European Council Regulation (EEC) No. 259/93, February 1993, deals with the supervision and control of waste shipments within, into and out of the European Community. One of the aims of this regulation is to "....enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health." Its general intent and scope is similar to the regulatory scheme currently in place in Canada at the federal level for the export and import of hazardous wastes. That is, requirements are stipulated for prior notification, the control of illegal traffic, financial guarantees or equivalent insurance, etc.

As defined therein, "waste" is any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force. "Disposal" encompasses both: the collection, sorting, transport, treatment and storage/tipping of waste; as well the transformation operations necessary for re-use, recovery or recycling. Household wastes are specified under Annex III as being in the amber list of wastes, and are identified with other wastes as to be re-examined as a priority matter by the Review Mechanism of the OECD.

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