10. Waste reduction plans

Section 188 of the Canadian Environmental Protection Act, 1999 creates a new authority for the Minister of the Environment. The Minister may require an exporter or class of exporters of hazardous waste or prescribed non-hazardous waste for final disposal to submit and implement a plan "for the purpose of reducing or phasing out" those exports. Once such a requirement is imposed, the Minister may refuse to issue an export permit if the plan is not submitted or implemented.

Section 191(g) authorizes the Government to develop regulations respecting these plans "taking into account: i) the benefit of using the nearest appropriate facility, and ii) changes in the quantity of goods the production of which generates hazardous waste to be disposed of by an exporter or class of exporters."

Environment Canada intends to implement the waste reduction planning provisions in Section 188 in order to promote pollution prevention as part of its overall responsibilities for managing the import and export of hazardous waste.

Section 188 is an important element of the regime established in Part 7, Division 8 of CEPA, 1999 for the control of the import, export and transit of hazardous waste. Together, the permit process and the "environmentally sound management" (ESM) provisions in section 185 enable Environment Canada to ensure that imports and exports of hazardous wastes and hazardous recyclable materials are allowed only where they will be managed in an environmentally sound manner and where relevant accountability and tracking procedures will be followed. Section 188 complements these provisions by enabling Environment Canada to ensure that exporters address relevant pollution prevention opportunities to minimize the need for exports for final disposal.

Pollution prevention is a priority for Environment Canada. The preamble to CEPA, 1999 states that the Government of Canada is committed to implementing pollution prevention as a "national goal" and as "the priority approach to environmental protection." CEPA, 1999 defines pollution prevention as "the use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health."

This emphasis on pollution prevention is consistent with the Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal. Among its main features, the Basel Convention obliges parties to "ensure that the generation of hazardous wastes... is reduced to a minimum, taking into account social, technological and economic aspects" (Art. 4.2(a)). A closely related obligation is found in Article 4.2(d): "Ensure that the transboundary movement of hazardous wastes... is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes..."

Environment Canada recognizes that pollution prevention opportunities may not apply in all cases. Where final disposal is appropriate, it will be important to ensure that it occurs in an environmentally sound and efficient manner. This requires taking into account, among other things, the potential benefit of using the nearest environmentally sound facility. In some instances, this may justify the export of hazardous wastes for disposal, in particular in regions close to the Canada-US border.

In short, Environment Canada will use Section 188 to help ensure that Canadian generators and exporters of hazardous waste consider and apply pollution prevention strategies. As such, Environment Canada may require plans under section 188 in two related circumstances:

• Where it has determined that pollution prevention opportunities exist, the Department may use Section 188 to require specified exporters to prepare and implement plans to achieve targets based on those opportunities; and
• Where information is lacking on pollution prevention opportunities, the Department may use Section 188 to help ascertain whether exports for final disposal are the most appropriate option (i.e., whether pollution prevention opportunities exist to reduce the need for exports for final disposal).

Finally, Environment Canada also intends to ensure that it uses the authority in Section 188 in a way that is effective. All participants in the initial consultations on the application of Section 188 agree that waste reduction planning should not be a paper exercise that leads to no net environmental gain. The Department intends to require plans only in circumstances in which it is likely that the plans will lead to an environmental benefit.

Section 188 applies to "exporters" or "classes of exporters". Environment Canada is considering defining "exporter", for the purpose of Section 188, to include the generator of the waste being exported. This would enable the Minister, where appropriate, to apply a waste reduction requirement to the generator of the waste, rather than only to an intermediary company established for the purpose of arranging exports.

Environment Canada proposes to rely on pre-determined criteria to guide its initial decisions concerning when and who will be required to prepare a waste reduction plan under Section 188. The Department intends to develop these criteria through a consultative process in parallel with the development of the new regulations.

It is anticipated that the regulations will set out the mechanism to:

• Identify the types and levels of exports of wastes and the nature of the risks to be reduced; and
• Stipulate that plans prepared under Section 188 consider various factors, including options to reduce the generation of the specified wastes, enhance recycling, or reduce their toxicity.

Subsection 188(1) authorizes the Minister to require designated exporters to "submit to the Minister ... a plan in accordance with the regulations." Subsection 188(2) requires affected exporters to submit "declarations" within 30 days after "the completion of each stage of the plan." And Subsection 188(3) authorizes the Minister to refuse to issue a permit to an exporter who does not comply with subsection (1) or (2).

It is anticipated that the regulations will establish the Minister's authority to stipulate the nature of the information to be submitted under Subsections 188(1) and 188(2). As is the case with pollution prevention planning under Part 4 of CEPA, 1999, it is anticipated that the Minister will require that the "plan" to be submitted under Subsection 188(1) contain:

• A certification from a senior executive confirming that the organization has reviewed pollution prevention opportunities, and commits to the accuracy of the report and to the targets described in the document; and
• Summary information related to issues such as:
  
  
  1. baseline performance levels,
  2. a description of how the plan accounted for any factors to be considered stipulated in the Section 188 requirement, including, for example, relevant pollution prevention options considered in the development of the plan;
  3. proposed performance targets, including interim targets and timelines, and
  4. a general description of the types of pollution prevention methods being applied.

Similarly, as is the case with pollution prevention planning under Part 4 of CEPA, 1999, it is anticipated that the Minister will require that the "declarations" under Subsection 188(2) contain:

• A certification from a senior executive confirming the accuracy of the information in the declaration;
• Pollution prevention measures implemented and performance results achieved to date;
• A brief explanation of any deviation from the targets and timelines set out in the "plan" submitted under Subsection 188(1); and
• Any changes in future aspects of the plan and its targets that have arisen due to changed circumstances.

Declarations may be required on a periodic basis, linked to notification, to track performance over time.

Finally, it is anticipated that, under Subsection 188(3), the Minister may consider unsatisfactory progress towards an interim or final waste reduction target as grounds for refusing to renew a permit or to issue a new one.

As is its practice with respect to all activities under CEPA, 1999, Environment Canada proposes to post on the Green Lane and on the CEPA Registry all requirements issued under Section 188, and all "plans" and "declarations" submitted under Subsections 188(1) and (2).

It is anticipated that affected persons should be able to provide the required information without divulging confidential information. Nonetheless, all persons subject to a Section 188 requirement will be able to submit a request under Section 313 of CEPA that specified information be treated as confidential.

• Definition of "exporter": The Department is considering stating in the regulations, that, for the purpose of the application of Section 188 and the following provisions, "exporter" includes the generator of the waste that is proposed for or being exported.
• Authority to require plans:
• The Minister may, at any time, publish in the Canada Gazette and in any other manner that the Minister considers appropriate a notice requiring any exporter or class of exporters described in the notice to prepare and implement a plan for reducing or phasing out the export of hazardous waste.
• The notice may specify:
  
  
  1. the waste or group of wastes in relation to which the plan is to be prepared;
  2. the commercial, manufacturing, processing or other activity in relation to which the plan is to be prepared;
  3. the factors to be considered in preparing the plan;
     
     
     • the levels of export reduction to be achieved;
     • the period within which the plan is to be prepared;
  4. the period within which the plan is to be implemented, including interim implementation dates;
  5. the date by which the plan must be submitted to the Minister;
  6. the information to be included in the plan to be submitted to the Minister;
  7. the information to be included in the declarations of implementation; and
  8. any administrative matter necessary for the purposes of this Part.
• Extension of time:
  
  
  1. Where the Minister is of the opinion that further time is necessary to prepare or implement the plan, the Minister may extend the period for a person who submits a written request before the expiry of the period referred to in the notice or of any extended period.
  2. The Minister shall publish in the Canada Gazette and in any other manner that the Minister considers appropriate a notice stating the name of any person for whom an extension is granted, whether the extension is for the preparation or implementation of the plan, and the duration of the period of the extension.
     
• Application for waiver: On a written request submitted by any person to whom a notice to prepare a plan is directed, the Minister may waive the requirement for that person to consider a factor specified under paragraph (2)(c) where the Minister is of the opinion that it is not reasonable or practicable to consider the factor on the basis of reasons provided in the request.
  
• Right to use a plan prepared for another purpose:
  
  
  1. Subject to subsection (2), where a person who is required to prepare or implement a plan has prepared or implemented a plan for reducing or phasing out the export of hazardous waste on a voluntary basis or for another government or under another Act of Parliament that meets all or some of the requirements of the notice, the person may use that plan for the purposes of meeting these requirements.
  2. Where a person uses a plan under subsection (1) that does not meet all of the requirements of the notice, the person shall:
     
     
     • amend the plan so that it meets all of those requirements; or
     • prepare an additional plan that meets the remainder of those requirements.
• Requirement to keep plan: Every person who is required to prepare a plan shall keep a copy of the plan at the place in Canada in relation to which the plan is prepared.
• Review process: The regulations will provide for the right of affected persons to submit a notice of objection to a decision under Section 188, and will authorize the Minister to establish a Board of Review, either under Sections 334 to 341 of CEPA, 1999 or under a similar process.
• Authority to issue a model plan: For the purpose of providing guidance in the preparation of a plan, the Minister may publish in the Canada Gazette or in any other manner that the Minister considers appropriate a model waste reduction plan or a notice stating where a copy of the plan may be obtained.
• Authority to issue guidance material concerning circumstances under which the Minister will require a plan: The Minister may develop a policy document or guidelines respecting the circumstances in which and the conditions under which waste reduction planning is appropriate.

Environment Canada proposes to rely on policy criteria to guide its initial decisions concerning when and who will be required to prepare a waste reduction plan under Section 188. The Department proposes to promulgate these criteria as a policy document, rather than as regulatory provisions.

Environment Canada proposes that these criteria closely reflect the pollution prevention / waste management hierarchy in the Federal Pollution Prevention Strategy. The following proposed criteria are therefore designed to:

• reduce and eliminate the generation of hazardous wastes,
• encourage reuse,
• encourage recycling, and,
• where disposal is necessary, ensure environmentally sound, cost effective disposal.

Risks associated with the export of the waste for final disposal:

• Risks to human health and the environment associated with:
  
  
  1. The transportation of the waste.
  2. The final disposal of the waste
• Taking into account factors such as
  
  
  1. The inherent toxicity/hazard of the waste.
  2. The quantity/volume of the waste being exported.
  3. The likelihood of human or environmental exposure.

Relationship to other regulations and agreements:

• Whether the waste contains any CEPA-toxics or POPs subject to an international agreement to which Canada is a party.

The availability of cost-effective pollution prevention options:

• Taking into account factors such as:
  
  
  1. The availability of technology that would allow generators to cost-effectively reduce the amount of hazardous waste produced.
  2. The potential for cost-effective re-use or recycling of the wastes.
  3. The potential for the cost-effective, environmentally sound disposal of the waste in Canada (taking into account the benefit of using the nearest appropriate facility, regardless of which jurisdiction it is in).
  4. Whether the waste generated and exported is related to increased production volumes.
  5. Whether the shipments are from an ongoing source of waste generation, or arise from a "one-off" activity. (If the latter, then a waste reduction plan is unlikely to be effective).
  6. Past and ongoing pollution prevention efforts.
  7. Whether the persons generating or exporting the waste have committed to reduce the generation or final disposal of the waste through participation in another comparable provincial or federal voluntary pollution prevention program, including the successor program to the Accelerated Reduction and Elimination of Toxics (ARET) program.
  8. Competitiveness impacts and fairness in relation to other industry participants.

The likelihood a Section 188 plan will lead to a reduction of exports of the hazardous waste for final disposal:

• After considering the above criteria, will a Section 188 Order lead to:
  
  
  1. Reduced generation?
  2. Increased reuse or recycling?
  3. More environmentally sound final disposal?