2. Scope of Coverage

The determination of whether a material is covered by these regulations will depend on whether the material is both: 1) a waste or a recyclable material and 2) meet a hazardous characteristic.

The determination of whether a material is a waste or a recyclable material will be guided in part by the definition of those two terms as outlined in Part 1, above. As is the case with the current EIHWR, the proposal is to define "waste" as any material that is disposed, destined for disposal or required to be disposed. In turn, "disposal" is defined as any operation listed on Schedule 1, the updated list of disposal operations (the D List). Similarly, the proposal is to define recycling as any operation set out in Schedule 2, the updated list of recycling operations (the R List).

The use of the Disposal and Recycle Lists will provide two main benefits. First, the new regulation will have a separate control regime for hazardous recyclable material being imported into or exported from an OECD country. The use of the D and R lists will clarify that the recyclable material control regime will only apply to recyclable material that is actually recycled. It will not apply to material that has the chemical or physical potential to be recycled, but that is sent to disposal. Further guidance on the nature of the operating considered by each entry in the R&D list will be prepared. Some of this guidance may be the results of technical guidelines on various operations and waste streams developed as part of the program on Environmentally Sound Management (ESM).

The second main benefit of the use of the D and R Lists is that they should help alleviate some of the difficult experiences under the EIHWR in differentiating recyclable materials from products. The OECD has provided guidance material to support this determination on a case-by-case basis. Environment Canada has also relied on similar but more expansive guidance material. Schedule 5 provides the list of criteria to distinguish products from recyclable materials. Further guidance, based on these criteria is being developed.

Particularly where modified controls are established to promote environmentally sound recycling, the issue of the proportion of a material that should be recycled for activity to be considered recycling rather than disposals is an important one. Given the variety of materials and technology, it would be necessary to established different levels of the amount that should be recycled for each type of material. This would need to account for three related factors: the amount of the hazardous residue generated relative to the amount of the shipment; the value of the material created; and the environmental risks associated with the residue relative to the environmental risks that would be associated with creating the new material from virgin inputs. The EIHWHRM Regulations will rely on available technical guidelines as guidance on the definitions of Recycling and Disposals operations to identify any particular levels of recycling required to be considered a legitimate recycling ! activity.

The remainder of this part of the discussion paper describes the three related elements for determining if a waste or recyclable material is "hazardous":

• a list of wastes and recyclable materials, already determined to be hazardous
• a hazardous characteristic test, and
• a process to exclude listed wastes or recyclable materials under certain limited conditions.

To determine whether a waste or recyclable material is hazardous, the generator (or importer or exporter, as the case may be) shall determine, as per the process being established for the Interprovincial Regulations*:

*Environment Canada is releasing a separate paper on these regulations outlining these lists and characteristics in further detail.

1. Is the waste or recyclable material listed in Schedule 3, the list of hazardous materials?

If so,

it is defined as hazardous and is covered, subject to utilization of the conditional exclusion process. This includes specifically listed substances and compounds like those in Schedule 2 of the Clear Language Version of the Transportation of Dangerous Goods Regulations (TDGR) (e.g. acetone, battery acid or gasoline) as well as listed types of hazardous wastes and hazardous recyclable materials (e.g. 100 waste types from old TDGR, biomedical waste, used oil, spent glycols, waste genetically modified organisms and other specific listings required to ensure harmonization with the Basel Convention or the OECD Decision on Recyclable materials such as polychlorinated naphthalenes).

Or,

2. If the waste or recyclable is not listed, does it demonstrate one of the hazardous characteristics listed in Schedule 4 (i.e., TDGR classes 2,3,4,5,6,8, or 9)?

If so,

it is defined as hazardous and is covered by the regulations. The hazard criteria for primary hazard classes 2 (gases), 3 (flammable liquids), 4 (flammable/reactive solids), 5 (oxidizers), 6 (toxic and infectious substances) and 8 (corrosive materials) will be harmonized with the requirements of TDGR. Class 9 environmental hazardous will be defined in one of two ways: through use of the leachate test (US Toxicity Characteristic Leachate Procedure - TCLP) on an expanded list of hazard constituents or listing with a 100 part per million cutoff (a shortened version of the current class 9.2 list).

If neither of these conditions are met, the waste or recyclable is not covered by these regulations.

3. Conditional exclusion process.

If a waste or recyclable is included in the list of hazardous materials in Schedule 3, but the importer/exporter believes that it does not exhibit any hazardous characteristic, the importer/exporter may apply for a conditional exclusion using the form in Schedule 6. If Environment Canada approves the application, the waste or recyclable will not be subject to these regulations as long as all conditions in the approval continue to be met.

With respect to the conditional exclusion process, it is proposed that the regulation will specify:

• The process for applying for such a conditional exclusion and set out the appropriate form. This will probably include the following:
  
  
  1. application to be made by generator or person acting on their behalf;
  2. 90 day timeline for response, but not to be interpreted as approval if not met;
     
• fee for this process (may be established at a later date, in concert with future cost recovery plans).
• The information to accompany an application, including:
  
  
  1. a statement of the grounds for seeking the exclusion (describing the waste or material and which anticipated hazardous characteristic(s) is (are) not present); and
  2. supporting technical analysis from an independent certified laboratory.
     
• The public right to review and comment on any application.
• Environment Canada's authority to approve an application for a conditional exclusion.
• The types of conditions that may/must be imposed, including:
  
  
  1. maximum time for which approval is valid (up to a maximum of 3 years);
  2. ongoing obligations to monitor to ensure the grounds for exclusion continue to apply;
  3. reporting requirements for ongoing test results or other imposed conditions.
• Authority for EC to withdraw the approval if, in its opinion, the conditions are no longer met.

The proposed process for determining whether a waste or recyclable is hazardous follows a logical flow that improves both the clarity of the determination and the enforceability of the new regulation. The overall approach is consistent with the Basel Convention and OECD Decisions. It is also consistent with the approach recommended by the HWTG and proposed for the Interprovincial Regulations.

The use of lists to establish a presumption of inclusion establishes a clear baseline from which industry and Environment Canada can work in applying the regulations. The use of lists also provides a straightforward basis for other stakeholders to understand the scope of the regime. The lists will comprise wastes and recyclable materials that typically exhibit hazardous characteristics. They will reflect the recommendations of the CCME HWTG, and will cross-reference the Basel and OECD lists.

Due to the inherent complexity and the delisting mechanism that it would necessitate, it is not intended to introduced at this time a "derived from" rule² , as a means of defining hazardous waste or hazardous recyclable material. However, it may be applied as a means to ensure proper treatment prior to landfilling, through technical guidelines on the landfilling of hazardous waste.

Some have proposed that the mixing rule be added in these regulations (i.e. that one is not allowed to mix waste for the purpose of avoiding controls by diluting the hazard.) However, this type of rule is more effectively established by the jurisdiction controlling the generator. One area being considered however is some prohibition on import for the primary purpose of avoiding a mixture rule in the exporting jurisdiction.

The conditional exclusion process may allow industry to exempt from the coverage of the regulation a waste or recyclable that is usually hazardous but due to production process factors or unusual circumstances is not hazardous in a particular case. Conditional exclusions will not be granted for material or waste that has simply been diluted.

The responsibility placed on the generator/importer/exporter to ensure that a non-listed waste or material does not exhibit any hazardous characteristic provides an additional layer of environmental protection. This responsibility is consistent with the basic environmental management and due diligence requirements for generators and managers of wastes or recyclable to know the qualities of the substances they are working with.

The proposed approach requires the application of all hazardous characteristic tests to all non-listed wastes and recyclable materials. Some stakeholders are of the view that the regulations should not require application of the TCLP test to any recyclable materials or to certain specific lower risk recyclable materials. Environment Canada does not propose to provide such a blanket exemption and views the text as a measure of the availability and mobility of hazardous constituents. Recyclable materials may come into contact with the environment in various circumstances, including through stockpiling or following a transportation accident. Recyclable materials that could contaminate the environment as a result of such contact will be covered by the regulations. Modified controls for the lowest risk recyclable materials may be considered under the Permit of Equivalent Level of Safety mechanism (further discussed in section 8 of this paper).

² Under such a rule, a material that was once a hazardous waste retains that title even after treatment unless delisted.