5. Transboundary movement control regimes

This part will prescribe the control regime applicable to all transboundary movements of hazardous wastes and hazardous recyclable materials. It is divided into two regimes:

• Part 5.2 applies to transboundary movements of hazardous wastes to all countries and of hazardous recyclable material to non-OECD countries. (Full controls)
• Part 5.3 applies to the transboundary movement of hazardous recyclable materials between Canada and OECD countries, including the United States. (Modified controls.

This Part will specify the following:

• These provisions apply to:
  
  
  1. all imports or exports of hazardous materials destined for disposal, regardless of whether they could have been or at one time were intended to be recycled (note that this includes all mixed shipments containing at least some hazardous waste); and
  2. all imports or exports of hazardous recyclable to or from non-OECD countries.
     
• Requirement to submit Notice to Environment Canada
  
  
  1. The content of the Notice will be prescribed by reference to a schedule to the regulation. It is proposed that the Notice will be based on the OECD form, including updated international waste identification code (IWIC)
  2. In addition to basic information such as names, addresses, material in question, etc., the Notice form will require information on:
     
     
     • whether the applicant is subject to a waste reduction plan order under s. 188;
     • whether the material is subject to another international agreement restricting its import or export;
     • whether the material is a Track 1 CEPA-toxic substance (slated for virtual elimination) or whose import or export is otherwise restricted under CEPA;
     • confirmation of insurance (name of insurer and policy number; not a copy of the actual policy) for the Canadian exporter/importer and their carriers with a certification of compliance with the insurance requirement of the regulations³.
       
  3. The Minister may request:
     
     
     • a complete copy of the insurance policy, or
     • information related to the ESM criteria described in Part 9, below, including detailed information about the proposed treatment. Environment Canada will develop a policy concerning when and how it will request this information.
       
  4. There will be no restriction as to the number of wastes/recyclable materials per Notice, but there can only be one exporter and one receiving facility for each notice and permit.
  5. Certain information provided with a Notice may appear on the CEPA Registry.
  6. Applicants will be authorized to amend their Notice as to the quantities to be shipped (provided that the company has not already shipped over their permit limit in contravention of the regulations) and border crossings (but not for wastes/recyclable material, sources and destinations).

  ³ As with the current administrative procedure, companies will be allowed to maintain up to date insurance files with Environment Canada rather than submit with notice.

• Who must submit a Notice and receive a permit for imports to Canada or exports from Canada:
  
  
  1. The exporter must be a person:
     
     
     • Whose activity generated the waste/recyclable material (generator);
     • Who is acting on behalf of government;
     • Who is removing a waste/recyclable material from a site they own or operate.
     • Who collects or receives wastes and then processes it at that person's facility in a way that changes its physical or chemical characteristics (new generator or bulker/processor);
       
  2. Person submitting notice for imports must own/operate the treatment facility.
  3. Person submitting notice for export or import must be resident in Canada and have a place of business in Canada.
  4. Person submitting notice for export must demonstrate the capacity to implement the obligations arising under these regulations in the event of non-completion of the shipment as planned (i.e., an assurance that notification of a problem will be made, and exporters either must have a facility that can receive the returned material or have a contractual arrangement with such a facility).
  5. Foreign exporters to Canada must be under jurisdiction of the country of export. (i.e. the exporter must be in the country of export not some third country).
     
• Conditions for using a single notice for multiple shipments (Same as in the current EIHWR):
  
  
  1. Have essentially the same physical and chemical characteristics (for the waste streams listed)
  2. Are to be shipped to the same disposer or recycler at the same location for disposal or recycling at the same facility;
  3. Are to be shipped only through the customs offices specified in the notice; and
  4. In the case of imports into Canada, originate from the same person.
     
• Conditions associated with the review of the notice:
  
  
  1. Environment Canada must have received the approval of competent authority of the relevant jurisdictions (as per s. 185 of CEPA)
  2. There must be a legally binding contract (or arrangement if importer and exporter are in same company) between the importer and exporter (as well as between the importer and final destination where the importer is an intermediary facility) stating:
     
     
     • type and quantity of materials to be sent and received;
     • type of treatment to be undertaken of the waste or recyclable materials;
     • timelines for the shipment and treatment;
     • provisions to provide all required assistance and notices required by these regulations upon failure to complete shipment or treatment as planned.
       
  3. The shipment must be fully covered by insurance, as required by part 7, below.
  4. Each disposal and recycling facility must be an "authorized facility" . (This will be verified by the authorities in the jurisdiction where the facility is located.)
     
• Permit valid for up to one year.
• Volume/quantity may not exceed amount in permit.
• New renewal mechanism:
  
  
  1. May apply for renewal of permit by submitting form certifying that there are no material changes in the activities and operations for which the Notice is being made.
  2. Form for renewal application may be specified in a schedule.
  3. Modify notice numbering for renewals to avoid confusion of new notice number each year.
     
• Movement may not commence until receipt of permit (as per s. 185)
• Requirement to complete and submit manifest:
  
  
  1. Form of manifest may be prescribed in a schedule (may be an electronically generated form printed from a local computer).
  2. Manifest shall include:
     
     
     • reference number of Notice; and
     • address of transfer sites and final site.
       
  3. Person who exports must submit copy of manifest to EC before shipment occurs (by mail, electronically or fax).
  4. Receiving site (recycler or disposer) must submit manifest to EC within 3 days of completion of shipment.
  5. The person who exports, carrier and receiver must retain copy of manifest for 2 years.
• Requirement to use "authorized carrier"
  
  
  1. Permit holder must ensure all carriers used for the transport of the waste/recyclable material are "authorized carriers"
  2. Direct prohibition on any carrier that is not authorized or listed in the notice and permit from carrying any wastes or recyclable materials subject to these regulations
  3. The carrier must carry a copy of the manifest and the permit⁴
  4. (Note: would also have to comply with any applicable TDGR requirements).
     

  ⁴ Environment Canada is currently examining electronic means of tracking movements, possibly through smart cards.

• Truck driver at the border must:
  
  
  1. provide to Customs a copy of the manifest;
     
• Equivalent requirements for rail and ships, as an alternative mechanism:
  
  
  1. a copy of the manifest may be placed in or attached to the means of containment;
  2. electronic means of tracking the shipment will be used, including Customs clearance;
  3. each carrier must forward the original manifest by courier to any subsequent carrier, and the final carrier must forward the original manifest by courier to the recycler/disposer in time to allow the receiver to comply with its obligation to submit manifest to EC within 3 days of completion of shipment.
• Prohibition on abandonment of shipment in the course of import, export or transit prior to its completion in accordance with the permit.
• Obligations to complete final disposal or recycling:
  
  
  1. Obligation on receiving facility (disposer or recycler) to complete final disposal of hazardous waste or recycling of the hazardous recyclable material within 1 year (or 1.5 years total where there is a final destination);
  2. Canadian importer must submit certificate of final disposal within 30 days of final disposal;
  3. Contract between Canadian exporter and foreign importer must require foreign importer to submit certificate of final disposal or final recycling treatment within 1 year.
  4. Obligation to track to any final destination (if transferred but not treated at first facility) and obtain certificate of disposal or recycling at final destination
• Obligations arising upon failure to complete delivery or treatment as planned:
  
  
  1. Requirement on permit holder (i.e., the importer or exporter) to notify EC of failure to complete as per Notice and permit
  2. Requirement on permit holder to submit request for new permit based on revised plan within 30 days of failure to complete as planned.
  3. Requirement on permit holder for approval of any new proposed plan prior to any further movement taking place.
  4. Requirement on permit holder to repatriate shipment within 180 days if consent for new plan not provided by Environment Canada and other competent authority.
  5. Requirement for new permit and manifest for repatriation.
• Electronic filing shall have same legal effect as paper filing.

Most of the above scheme reflects the current EIHWR with some changes to facilitate compliance and improved the operation of the regulations. Unlike the current EIHWR, however, it is proposed that the new regulations describe each step in the process in a sequential manner. This is more consistent with plain language drafting, and should help users better understand all the elements involved.

In order to provide this clear sequence of requirements, the regulations may repeat some of the key provisions in the Act, including the requirement to submit a Notice, the prohibition on movement without a permit, and the prohibition on abandonment of shipments.

In addition, the proposed regime includes the following key changes:

Clarification of who may apply for a permit

As is the case at present, this will include generators, agents acting on behalf of government, site owners/operator removing wastes or recyclable materials from the activities at their facilities, bulkers who process wastes in a way that changes the material's physical or chemical characteristics.

These provisions will be bolstered by the protection provided by the requirements that:

• Person submitting notice for export or import must be resident in Canada and have a place of business in Canada.
• Person submitting notice for export must demonstrate the capacity to implement the obligations arising under these regulations upon non-completion of the shipment as planned.
• Person submitting notice for imports must own/operate the facility that operates the site of final treatment.
• Foreign exporters to Canada must be under jurisdiction of the country of export.

Together, these will ensure that exporters acting as agents for multiple generators either have a facility that can receive returned material or have a contractual arrangement with such a facility.

Use of the OECD Notice form

As modified to include information relevant to other provisions in CEPA (e.g., whether the applicant is subject to a waste reduction plan order under s. 188; whether the material is a track 1 CEPA-toxic substance; and information related to the ESM criteria described in Part 9, below).

The introduction of a relatively simple renewal mechanism, for repetitive notification. Discussions will be held with the provinces to determine whether such renewals can be processed more rapidly than new notices.

Clarification of the obligations arising upon non-completion

Including the obligation for the Canadian exporter/importer to have a contractual arrangement with the foreign exporter/importer concerning obligations upon non-completion.

The new provisions concerning the responsibility of the carrier to ensure that they are listed on the notice and permit. Experience has shown that subcontracted carriers are sometimes used. Although it is the Canadian importers/exporters responsibility to only use authorized carriers, some onus will be put on the carrier to remain authorized and ensure they are on the permit.

A direct requirement on the carrier to be authorized, in default of which it is in breach of the regulations.

Reduced documentation requirements at the border. The proposed new provisions require only the manifest and the permit be carried to ensure compliance with these regulations.

Clarification of the obligations for rail and ship carriers. These proposed requirements reflect the recent agreement between the railway carriers and the Transboundary Movement Branch that will allow industry to import from the United States and remain in compliance with both the TDGR and EIHWR when the shipment involves movement by rail.

Expanded new authority for e-filing.

These provisions apply to material that is classified as hazardous recyclable material and whose final destination is recycling in an OECD country.

The same provisions as under 5.2, above, will be repeated here, with the following main differences:

• The permit issued will be a "Permit for the transboundary movement of recyclable materials between Canada and another OECD country".
• Brokers will be allowed to be exporters and importers on the notice.
• Consideration is also being given to facilitate the administrative process for imports into Canada where the material is not regulated in the country of export, particular for any requirements on the foreign exporter.
  
• Tacit consent:
  
  
  1. Provided agreement can be reached with the provinces which review notices, EC will presume consent and will issue a permit where a negative response to a notice is not sent within:
     
     
     • 7 days for a pre-authorized facility; and
     • 30 days for a non pre-authorized facility.
  2. A permit issued pursuant to tacit consent may be valid for up to one year, unless a longer time is authorized under an applicable international agreement (OECD Decision on recyclable allows up to three years in some cases).
     
• Pre-authorization: this part will retain Environment Canada's existing authority under the EIHWR to pre-authorize facilities for the treatment of hazardous recyclable materials. As is the case at present, a schedule to the regulations for the provinces may provide criteria to guide this decision. EC may try to simplify this process. Efforts will be made with the provinces to make this mechanism work in practice.
  
• Manifests: on a case-by-case basis, the permit may stipulate that a foreign exporter does not have to complete the consignor's portion of manifest where not required to do so by its own jurisdiction. In these cases, the Canadian importer must prepare the manifest and submit it at the border.
  
• Discretion as to the time limit for initiating "final recycling operations" (as defined in Schedule 2):
  
  
  1. One year will remain the default time limit.
  2. Up to three years may be permitted so long as:
     
     
     • the time frame is set out in the original Notice with reasons to justify the extension; or
     • the importer subsequently requests a longer time period, with sufficient reasons to justify the extension.
  3. In any event, the Canadian importer must submit certificate of final disposal or final recycling treatment within 30 days of final disposal (or initiation of final recycling).

The objective of this regime is to provide a flexible regime for hazardous recyclable materials while retaining the core elements required to manage risks effectively and to comply with international obligations. The various provisions described above each represent changes to the basic regime for hazardous wastes. The proposed control regime reflects the provisions concerning hazardous recyclable materials in OECD Decision C(92)39 and the Canada-USA Agreement.

A brief rationale for each of the main changes follows:

• The expanded scope of persons who may apply for a permit for pick-ups from multiple facilities will facilitate the emerging efforts to encourage retailers and others to pool their collective efforts to take-back and recycle materials such as batteries and mercury switches and thermometers. In many cases, these activities are only economically viable if the participants are allowed to pool their activities through the use of an agent who collects from multiple facilities. The authority to issue a single manifest for multiple pick-ups shipped as one load will support the same activities.
• The 7-day tacit consent period is provided for in both the OECD and Canada-US agreements, as is the 30-day tacit consent for re-imports and re-exports. Both are in the present regulations but not utilized to their fullest extent.
• The provision concerning manifests reflects the fact that some countries does not require generators or shippers of certain hazardous recyclable materials to obtain a permit or complete a manifest. The proposed provision will ensure that all shipments of hazardous recyclable materials coming into Canada will be accompanied by a manifest, but will reduce the added burden imposed solely by Canadian law on foreign exporters, where the material is not considered hazardous in the country of export.
• Finally, the proposal to allow persons to extend the default one-year time for initiating "final recycling operations" reflects the fact that some material collected for recycling may not enter recycling operations for over a year due to commercial or process-related factors. This authority will be carefully circumscribed. The maximum three-year limit will prevent abuses where material is shipped as a recyclable but stored indefinitely.