9. Environmentally Sound Management

See footnote 6.

What Is Environmentally Sound Management? The Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal, which came into force in 1992, places responsibility on both exporting and importing countries for prohibiting shipment of wastes which they have reason to believe will not be managed in an environmentally sound manner.

The Convention defined "environmentally sound management" (ESM) as "taking all practical steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against adverse effects, which might result from such wastes." More specific ESM guidelines for specific R and D operations and waste streams have been developed under Basel to provide more specific guidance.

In recent years, there has been a growing recognition of the need to review and improve the standards for environmentally sound management of hazardous wastes and hazardous recyclable materials in Canada and internationally. While federal and provincial/territorial governments in Canada have regulatory and other systems in place to control such materials, there is a need for continuous improvement in the way hazardous wastes are managed in today's rapidly changing world.

In developing effective regulatory and voluntary tools to strengthen hazardous waste management, Canada's expansive geography and the need for cooperation among its various jurisdictions must be fully taken into account. In developing such a framework, Canada is also in a position to influence current international initiatives.

In July 2000, the Minister of the Environment issued a call to action to the provinces and territories, urging them to work with Environment Canada to strengthen the standards for all facilities that accept hazardous waste. Accordingly, a working group under the Canadian Council of Ministers of the Environment has been engaged in the development of a national framework for environmentally sound management (ESM) of hazardous waste and hazardous recyclable materials.

This process is intended to result in a set of core criteria for the environmentally sound management of hazardous wastes and hazardous recyclable materials at all facilities in Canada, including the development of guidelines for safe treatment and disposal for specific wastes or processes.

While such criteria will constitute a key part of a Canadian framework for environmentally sound management of hazardous wastes and recyclable materials, Canada is also working toward the development of criteria in an international context. Specifically, Canada is working with Mexico and the United States through the North American Free Trade Agreement (NAFTA) Commission on Environmental Cooperation (CEC) to develop a North American approach to environmentally sound management of hazardous waste and hazardous recyclable materials.

Canada is also contributing to international efforts to develop ESM criteria, stemming from the Basel Convention and the OECD Decision on recyclables. Canada's involvement in these international processes will help to ensure that Canadian and international efforts are compatible.

Although it is intended that the development of core criteria, as noted above, will be the basis for standards applicable to all hazardous waste and hazardous recyclable management facilities in Canada, the subject of this stakeholder consultation is the management of hazardous wastes and hazardous recyclable materials that are imported to, or exported from, Canada.

The export and import of hazardous wastes is presently controlled in Canada under the Export and Import of Hazardous Waste Regulations (EIHWR) under the Canadian Environmental Protection Act (CEPA). While transboundary movement of hazardous and hazardous recyclable materials wastes pose special issues within the total picture of developing an ESM Framework in Canada, consistent principles and criteria will be applied in that respect.

⁶ Since this concept is still being developed this section of the paper does not propose specific provision but rather a discussion of the issue.

While the volume of hazardous waste and hazardous recyclable materials exported out of Canada has not changed substantially, the volume of hazardous waste imported from the United States for landfilling had increased between 1997 and 1999. This increase has led to heightened interest on the part of stakeholders and regulators, in ensuring that Canada does not inherit environmental problems as a result of accepting hazardous waste where Canadian standards are different from those in the exporting jurisdiction.

The EIHWR were put in place in 1992 to control transboundary movements of hazardous wastes and hazardous recyclable materials in accordance with Canada's international obligations. The Regulations implement Canada's international commitments under the Basel Convention, the OECD Council Decision C(92)39 on wastes destined for recovery, and the Canada-USA Agreement on the Transboundary Movement of Hazardous Waste.

Subsection 185(2) of CEPA, 1999 authorizes the Minister to refuse to issue a permit for transboundary movement of a hazardous waste or hazardous recyclable materials, if the Minister believes that the waste or material will not be managed in a manner that will protect the environment and human health.

While the Act allows for implementation of ESM criteria by regulations, there are currently no regulations prescribing these criteria. In discussions with representative public and industry stakeholders, some possible approaches have been discussed for developing such criteria. However, further development of the principles and implementation mechanisms for such criteria is required.

As a key part of an overall ESM framework, Environment Canada has proposed to introduce, more specific criteria for the management of exported/imported hazardous waste and hazardous recyclable materials. Stakeholder input is sought on the development of such criteria for imports and exports. At the same time, this round of consultations provides initial opportunity for stakeholders to provide input to the development of a broader ESM framework for managing hazardous wastes in Canada, integrating it with components that already exist or are in development⁷.

The purpose of this Discussion Paper is to stimulate the exchange of ideas on the development of such criteria and implementation mechanisms, by proposing a general model with some alternative configurations.

The overall effect being sought is that exported/imported hazardous wastes or recyclable materials are managed in a manner that will protect the environment and human health. A number of principles must be adhered to in order to achieve this outcome. While some principles apply to any facility managing hazardous wastes, others apply specifically to wastes which are subject to transboundary movement. In the more general context, some of the important principles include the following:

• The proposed treatment/disposal technology is appropriate for the waste or recyclable material type being treated or disposed.
• Emissions from the facility are within the regulatory limits of the jurisdiction in which they operate.
• The receiving facility monitors its emissions.
• Appropriate corrective action is taken where warranted.
• Persons involved in the management of hazardous wastes or hazardous recyclable materials are adequately trained in this capacity.
• The facility has an appropriate decommissioning plan and financial security for environmental damage, consistent with the type of facility and the risks its operations poses.
• Management of specific waste streams complies with relevant standards, guidelines, codes, including those at the international level.
• The proportion and nature of hazardous residue from a recycling process is at an acceptably low level.
• The volumes of hazardous wastes requiring treatment and/or disposal are minimized through source reduction or other means.

⁷ CEPA, 1999 also includes authority to control the import and export of prescribed non-hazardous wastes, including the establishment of ESM criteria for the review of any notices submitted for the import and export of these wastes. There are separate consultations being held on these regulations.

Principles that apply specifically to transboundary movements of hazardous wastes and hazardous recyclable materials include:

• The facilities involved in the proposed movement are authorized, licensed or subject to regulation by the jurisdiction where they operate.
• The proposed method of transportation protects the environment and human health.
• There is verification that the waste/recyclable material are actually recycled.
• Transboundary shipments and transport of hazardous wastes are minimized, taking into account the need for specific wastes requiring specialized treatment/disposal facilities, the proximity principle and the need for economically efficient as well as environmentally sound management.
• The overall level of care is not diminished as a result of the export/import.

The above principles are consistent with the principles articulated in the Basel Convention and subsequent documents on international movements of hazardous wastes and hazardous recyclable material such as the Basel Convention Framework document on the preparation of technical guidelines. In the present context, it is clear that both sets of principles will need to be achieved in order to reach an appropriate level of management of exported/imported hazardous wastes and hazardous recyclable material.

With the above principles defined, we can begin to construct the criteria that may be used by the Minister to determine whether the principles have been met, and thus deciding whether to permit or refuse a given transboundary movement.

The promotion of recycling over final disposal is an important principle in the waste management hierarchy. It is important that the implementation of ESM criteria promote rather than deter recycling. While many principles may be the same irrespective of the treatment operation, the specific criteria and how they are assessed may have to be altered to recognize the type of activity and risk of environmental contamination associated with it. For example, training is an important safety factor in all industrial activities.

However, the training required for the operator of a highly technical incineration process would be considerably higher than that for a process which involves shredding electronic scrap. As these criteria are developed, these differences will have to be taken into account.

Performance criteria are a means of assessing whether specific environmental safeguards are in place and operating effectively at a facility (e.g. specific treatment standards or emission levels). In some cases, a standard exists that can be used to measure whether the corresponding criterion is being met.

For example, the emissions of substances into the environment from the facility must be in compliance with the laws of the jurisdiction, before it can be said to be environmentally sound in this respect. In other cases, standards do not exist or may be outdated, and may need to be developed (e.g., defining what is a satisfactory monitoring program, or what pretreatment may be required prior to landfill).

The performance criteria of an ESM framework should consider all of the components of the waste disposal/recycling activity in question. Together, the performance criteria can be used to determine whether a facility is performing in an environmentally sound fashion, and thus form the core of the framework for environmentally sound management.

In addition, however, it is recognized that there are widely used processes to examine an organization or facility's management system, and aim at continuous improvement of its environmental performance, including its ability to anticipate, detect and react effectively to problems and apply corrective action where required.

These criteria, , can be referred to as management system criteria. In some cases, these principles may overlap with performance criteria as defined above. Certification under ISO 14000, for example, includes requirements for personnel training, emissions monitoring and corrective action. The use of management system criteria are discussed in 2.3.

It is also recognized that there are existing regulatory structures, codes and guidelines governing specific processes for the management of hazardous wastes and recyclable materials, and that new ones are constantly being developed in the various provinces/territories of Canada and in other countries.

Rather than duplicating these efforts, it may prudent to include some mechanism within the ESM mechanism which allows recognition of existing standards, codes or guidelines for specific waste management processes. This is discussed in 2.4.

To some stakeholders, ESM connotes management system standards that may be recognized by credible, standards setting organizations such as the Canadian Standards Association (CSA) or the International Standards Organization (ISO). Others interpret ESM as setting out with specific regulations or standards for technologies and procedures for transportation, destruction, storage and/or recycling and the associated permissible emissions.

While a management system standard may apply to a wide variety of businesses and activities, many stakeholders are of the view that the criteria involved in such systems are general in nature and not specific enough to decide if a specific process, method or safeguard is environmentally sound. On the other hand, management systems are effective in determining whether the processes of anticipating, reacting to and preventing recurrences are in place within an organization.

A management system standard is not only a measure of the facility's ability to meet performance-related criteria, but a means of assessing the likelihood a facility will meet them in the face of technical, regulatory and other changes (continuous improvement).

An optimum arrangement for an ESM Framework may be to have a combination of management system criteria alongside the core performance criteria as described above. In this case, the facility operator could present evidence of certification under a recognized environmental management system standard(s) such as ISO 14000 or EMAS (environmental management system developed and applied in Europe) as evidence of having effectively achieved some of the core performance criteria such as having programs for prevention, monitoring, training and corrective action.

Specific hazardous wastes hazardous recyclable materials and treatment, recovery or disposal methods lead to specific challenges in many cases. Specific processes need to be assessed carefully, therefore, for environmental and health safety in regards to such matters as emissions to air, water or soil, the possible accidents and malfunctions that could occur, and waste residues generated.

To this end, standards, codes and guidelines have been developed by federal and provincial governments in Canada, in other countries or at the international level to guide the treatment, recovery and disposal of some hazardous wastes and hazardous recyclable materials or their constituents.

Environment Canada wants to avoid unnecessary duplication where such guidelines, standards and codes where they are available and effective for the purpose. It is proposed, therefore, that existing recognized standards should be used, and suitably referenced as part of the criteria. There should also be a provision for updating the regulations to take into account such new guidelines, standards and codes as they become available in Canada or elsewhere.

Collectively, the core performance criteria, management criteria, and linkages to other standards, guidelines or codes could form the criteria upon which the Minister decides whether to refuse or permit a proposed transboundary movement. A possible set of criteria to consider for inclusion in the revised Regulation are shown in Appendix A.

To add greater clarity and definition, more specific benchmarks standards could be further developed for each of the performance criteria. As an illustration, the criterion requiring a facility to monitor its emissions could be associated with several benchmark requirements, including an acceptable emissions monitoring technology, the maintenance of records, screening and recording of incoming and outgoing materials, ambient monitoring, a quality assurance/quality control (QA/QC) program, regular inspections of its storage, processing and other equipment, and so forth.

Environment is of the view that it is important to develop an ESM Framework for use in Canada, to work in concert with the existing process of provincial certificates. A phased approach to implementing the ESM standards is recommended, as it would allow for the process to be continuously improved and for various regulatory and industry stakeholders to become familiar with the requirements. This approach would also assist in for ensuring consistency with other standards and processes in Canada and elsewhere.

The implementation process would begin by establishing and publicizing the inclusion of the criteria into the revised EIHWR. In the early stages of implementation, Environment Canada would work to develop awareness of the new requirements by, for example distributing fact sheets, explaining criteria, holding workshops. As new criteria and benchmarks are developed these could also be implemented, including a possible national ESM standard.

Figure 1 shows a possible scenario for evolution of the ESM model for EIHWR in Canada, moving from the introduction of the framework to a point several years later, and finally into the longer term future. The way in which international, national and provincial regulatory and other processes could feed into this evolution is also shown in the figure, leading ultimately to harmonized international and national standards. Facilities conducting specific activities could be certified for environmental soundness against such standards.

As noted above, federal and provincial/territorial governments are working together to develop an overall ESM framework for managing hazardous wastes and recyclable materials in Canada. The goal would be to promote harmonization of key criteria and provincial certificates of approval. Provinces will, of course, continue to be involved in the review of import notices to confirm consent to the import. Provinces would also be in a position to ensure that the facility is operating in a manner consistent with this ESM framework.

In the international context, the framework elements resulting from current OECD and other efforts could be used in Canada as an interim measure, until an international framework becomes available. Conversely, Canadian participants can contribute to international exercises from the standpoint of progress being made in Canada.

The long term vision is to develop an approach with other Basel signatories (as well as NAFTA and OECD), which requires a common set of criteria, a framework and implementation schedule such as described above. Once a consensus on an international standard has been achieved, its content and format can be assessed, and a decision made as to how it will be integrated into the Canadian ESM system. i.e., retain a "made in Canada" model which supports the basic principles.

A framework for environmentally sound management will only work as well as the system in place to ensure its criteria are actually being applied. Such a process can be referred to as verification. The provinces are responsible for the licensing of hazardous waste management facilities, and this includes the verification of environmental safety which is associated with the enforcement of license conditions and relevant regulations.

This will not change with the introduction of the ESM framework. The basics of a process for verifying whether the new EIHWR criteria have been met is discussed below.

To develop an effective verification system for exported/imported hazardous wastes and hazardous recyclable materials, a number of basic components would be required. A system would be necessary for reviewing each facility in order to document to what extent the criteria are being met in its current operations. To facilitate the development this mechanism, it would be helpful to elaborate the actual criteria to a somewhat further level of detail (i.e., benchmarks as discussed above). The benchmarks would serve as a checklist of elements to be examined and evaluated in the course of any on-site facility review.

Additionally, there would need to be a mechanism for reporting the results of the review to Environment Canada, including a schedule of regular follow-up reviews, a tracking system, and provision for requiring corrective action where there are deficiencies.

The review system could range from one where Environment Canada is directly involved in the actual verification process using its own inspectors, to one where the industry manages the verification process, with Environment Canada overseeing it. The latter might entail randomized inspections by Environment Canada inspectors, with sanctions for non-conformance. In terms of the facility reviews, one means is to have a self-certification mechanism.

Alternately, independent third-party auditors could conduct the reviews and report the findings to Environment Canada. This would require a system for training and accrediting auditors. The engagement of third-party certified auditors would operate in fashion similar to auditing processes currently existing in Canada.

The involvement of the industry could also take several forms. In a voluntary mode, industry could tailor a management system based upon the minimal requirements defined by Environment Canada and build on that. For example, while the criteria may require that a training program be in place, industries could develop their own training programs according to specific technical and other needs, provided that it meets the benchmarks

There are a number of important benefits that would accrue from having a system of clear and comprehensive criteria coupled with an effective system for verification:

• consistency of the rules, with more ease of interpretation and thus increased certainty in decision-making;
• increased certainty within industry regarding its legal obligations;
• opportunity for industry involvement in, voluntary mode;
• increased certainty that Canada's international obligations are being met;
• confidence in framework implementation due to the verification process and;
• continuous improvement in capacity for environmentally sound management, and ultimately enhanced level of environmental protection.

The criteria could be fit into the existing system for assessing the environmental soundness of proposed transboundary movements, by adding them to a revised EIHWR. For example, using criterion #1in Appendix A, one of the criteria on which the Minister may base a decision whether to refuse or permit a shipment is "whether the facilities involved in the proposed movement are authorized, licensed or subject to regulation by the jurisdiction where they operate".

In applying for a permit for a shipment, notification under section 185 of CEPA would still be required. However, the revised Notification would request sufficient information so that the Minister decide whether the shipment should be permitted or refused based on the criteria.

Some criteria would clearly be fully mandatory (i.e., a facility must have an operating permit if one is required by the province where it is located). In other cases , the type of facility and risks associated may lessen the required degree of adherence to a specific criteria, for example, emissions monitoring is more important for an incinerator than a transfer station.

A further issue arises in respect to multiple shipments of the same hazardous waste or hazardous recyclable material by the same importer or exporter to the same facility. This sort of application comprises a large portion of shipments to/from Canada, with some sending as many as 2,000 shipments annually. A streamlining mechanism needs to be built into the system to accommodate routine and repetitive applications by a given party for shipping a particular waste or recyclable material type or number of waste types for management at the same facility.

This could be accomplished by establishing within the framework some mechanism for confirmation of consistency with the ESM criteria, whereby a particular activity involving a particular material type and process at a particular facility could be authorized subject to certain conditions, and effective over a specified time frame.

For example, the recycling of lead-acid batteries at a particular facility using a particular process could obtain a confirmation of ESM review effective for a specified time period. After this, and for a specified period, each similar Notification from the same exporter or importer would reference a ESM review number.

The verification process described above would be a key component of assessing whether an activity is considered consistent with the ESM criteria. Periodic reviews would need to be done on whether the facility and its proposed import or export activities continue to meet applicable ESM criteria, with provision for Environment Canada to revoke the ESM review confirmation if the facility failed to meet all the criteria, or to revoke it at any time if there were a significant adverse incident which cast doubt on the level of environmental safety.

Changes in the waste stream, operation, etc., would also prompt a review of the ESM status of the activity originally covered by the ESM review. This feature would allow exporters/importers to plan ahead and submit a information for an ESM review request in advance, say for the following year.

Another model that is worthy of consideration, is to house the ESM performance criteria in a new standard under a recognized certifying body such as the Canadian Standards Association (CSA) or other similar standards body. That document could then be used as an evaluation protocol. If the facility obtained certification under the protocol following verification, this could be used to demonstrate the facility has satisfied all of the ESM performance criteria set out in the revised Regulation.

The Ministerial decision process, then would contain two parallel paths. Evidence of certification under the recognized protocol would facility the review process. In other cases, the application would be evaluated on the basis of each of the specific criteria of the regulations. This feature would serve to streamline the decision process, as well as enhance consistency and predictability. This would need to be an auditing mechanism associated with this process.

Stakeholders are invited to offer their opinions on strengthening the requirements for managing exported/imported hazardous wastes and recyclable materials, as well as on the broader issue of developing an overall framework for ESM. Some of the key issues that may arise for stakeholders' consideration, include the following:

1. Performance Criteria

Are there, additional performance criteria that need to be incorporated into the framework, in order to achieve the overall effect of protecting the environment and human health against adverse effects? Is the level of detail appropriate (including consideration of possible benchmarks)? Is further clarification needed? Are there any suggestions for a better overall approach?

2. Management System Criteria

Environmental management systems (EMS) are effective in determining if continuous improvement processes are in place within an organization and apply to a wide variety of businesses and activities. However, the criteria involved in such systems are typically generic.

While they may be able to serve as indicators of a facility's competency in areas such as monitoring and training, can we be sure that evidence of an EMS in place is sufficient to grant or refuse a permit for a particular shipment of hazardous waste or hazardous recyclable materials for disposal or recycling? What do you think about a combination of core performance criteria and management system criteria?

3. Interaction with Provincial Processes

Once there is an agreement on the criteria and benchmarks, arrangements with the provinces could be made to review and confirm that provincial requirements for particular activities are consistent to the EIHWR ESM criteria. That way, compliance with provincial requirements would necessarily ensure compliance with EIHWR requirements.

Would such an arrangement ensure safe transport and management of hazardous wastes across Canada, and lead to an acceptable degree of uniformity among provinces/territories, without creating inter-jurisdictional interference or duplication of effort?

4. Use of Independent Standard

What do you think about housing the performance criteria in an ESM standard developed by a recognized body at arm's length from the federal government, and using that as part of an evaluation protocol?

5. Recycling Processes

What should the differences be in the way we apply the criteria when talking about "recycling" as opposed to processes that result ultimately in elimination or disposal of the hazardous material? If so, specifically how and why should they be different?

6. Environmental Standards in Country of Import

While hazardous wastes or hazardous recyclable materials should not be exported to take advantage of less stringent environmental or health standards in the country of import, standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries. Differences in regulatory approaches may or may not lead to differing levels of environmental protection.

The proposed criteria require the existence of an effective legislative and enforcement program in the country of import, and adherence with its emissions standards. How do we balance being too lenient with non-conforming facilities, as opposed to being seen as interfering in the affairs of another jurisdiction?

7. Justification for Transboundary Shipments

One of the proposed criteria is that disposal take place as close as possible to its point of generation to minimize transboundary waste shipments, while recognizing that economically and environmentally sound management of some wastes requires specialized facilities located at a greater distance, the proximity principle and the need for secondary raw material.

Is this position too lenient or too restrictive? Should there be different requirements for small and large facilities?

8. Waste Minimization

In your opinion how important, and how reasonable, is the requirement for waste exporters or generators to have an effective program for minimizing the generation/export of wastes destined for disposal as a criterion of assessing whether or not to permit an import or export? Should this be for any proposed facility or just for large facilities?

9. Verification System

What is your opinion concerning the proposed system for verifying conformity with the criteria? What about self-certification by importers or exporter or by third-parties being used in the verification process? Are there others that we should consider?

10. Implementation Strategy

What do you think of the proposed means of putting the criteria and framework into place? Will there be conflict or duplication with other processes in Canada? What about clarity and consistency? Does it pose an unreasonable regulatory or other burden on exporters/importers, and waste facilities? What about the time frame for phasing-in?

11. Substances of Special Concern

Should there be special consideration for substances of concern, such as those slated for virtual elimination?

This section of the paper proposes some means of developing an ESM framework for the management of exported/imported hazardous wastes and hazardous recyclable materials. It also considers ways of integrating it with discussions on ESM which are progressing in Canada and internationally, and for taking into consideration ESM elements, systems or standards that already exist or are developing.

Stakeholders are encouraged to provide their views on the possible form of an ESM framework for managing hazardous waste and hazardous recyclable materials, as well as on the development of ESM criteria and implementation. Stakeholder comments are also welcomed on the key issues listed here, as well as others that are raised.

Environment Canada will consider this input into account in formulating criteria for Ministerial authorization of transboundary shipments of hazardous wastes and hazardous recyclable materials to and from Canada, thus strengthening the Export/Import of Hazardous Wastes Regulations.