6. Controls on Hazardous Recyclable Materials
The main objective of this new regime is to ensure that Environment Canada can track shipments and ensure the environmentally sound management of hazardous recyclable materials in a way that promotes recycling over disposal.
The development of this new regime has raised a number of difficult issues. The first has to do with defining which shipments of recyclable materials should be covered by the regulations. This turns in part on what is considered a "recyclable material" as opposed to a product and in part on the definition of "hazardous."
As discussed above, the Department intends to clarify the waste/recyclable versus product issue through the publication of a guidance document. The overall approach to determining what is "hazardous" should be more straightforward than is the case under the current regulation because of the new listing regime described in section 3. In addition to the basic regime described above, Environment Canada is considering a supplemental listing to clarify the new regulation's application to various specific streams of concerns, such as certain types of electronic waste and treated wood.
Environment Canada proposes a separate regime for shipments of recyclable materials among OECD countries consistent with the OECD decision. This regime will provide enhanced flexibility while retaining the core elements of the basic control regime required to manage risks effectively and to comply with international obligations. The new regime will reflect the provisions concerning hazardous recyclable materials in OECD Decision C(2001)107 and the Canada-USA Agreement.
In addition to the points outlined in section 5.3 and 5.4, the main elements of the proposed regime for hazardous recyclable materials include:
- Special provision for movement documents for imports of recyclable materials from OECD countries. Where the country of export does not require generators or shippers of the recyclable materials being shipped to obtain a permit or complete a movement document, the new regulations will stipulate that the movement document must accompany the shipment only once it crosses the Canadian border. This will ensure that all shipments of hazardous recyclable materials coming into Canada will be accompanied by a movement document, 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.
- Single notice for multiple shipments. Authorizing a single notice to cover multiple shipments will reduce the administrative burden of compliance with the regulations.
- Environment Canada is also considering a mechanism for authorizing a single notice for shipments of same recyclable material from multiple sources. This would reduce costs for facilities that are recycling a similar set of materials from multiple sources. It also would enable applicants to obtain permits for pick-ups from multiple facilities, which should 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.
- Pre-authorization and tacit consent. The new regulations will retain the existing provision where the Minister presumes the consent of the receiving jurisdiction if a negative notice is not sent within 30 days. The new regulations also will authorize such "tacit consent" within 7 days for shipments going to pre-authorized facilities. Environment Canada is in the process of negotiating with the provinces to promote wider use of pre-authorization.
- Pre-authorization and 3-year permit. Permits issued under the recyclable materials regime may be valid for up to one year for non pre-authorized facilities and for up to three years for pre-authorized facilities.
- Finally, the new regulations may allow persons to extend the default one-year time for initiating "final recycling operations." 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.
In addition to the streamlining proposed above, recycling stakeholders have requested that Environment Canada re-examine the controls for specific, low risk hazardous recyclable materials, such as electronic scrap imported to environmentally sound recycling operations.
Although Canada's international obligations to control hazardous recyclable materials are quite stringent, Environment Canada is carefully examining them to identify opportunities for flexibility. To the extent that such flexibility exists, the Department may propose further modifications to the controls, especially for movements of hazardous recyclable materials within the OECD.
Environment Canada strongly supports the promotion of environmentally sound recycling over disposal. However, in addition to continuing to comply with Canada's international obligations, Environment Canada's major concern in making any significant changes to the scope and controls for hazardous recyclable materials is the risk of sham recycling and export to non-environmentally sound operations, especially in developing countries.
There are two possible mechanisms that could be used to implement modified controls:
- Specific exemptions within the regulations. This approach would provide clarity and would be preferred by those stakeholders who do not want their materials subject to controls. However, this mechanism is not very flexible, as it would require specific regulatory provisions tailored to each particular recyclable material being exempted. At the same time, there is a risk that a broad exemption would be inappropriately used by persons not operating in an environmentally sound manner. Monitoring such non-compliance would be difficult if the company is operating outside the scope of the known regulated community.
- Case by case variances. This would involve using the authority under Section 190 of CEPA 1999 to issue a permit of equivalent level of environmental safety (PELES) to provide variances for low risk hazardous recyclable materials on a case-by-case basis, using strict environmentally sound management criteria. This would provide significant flexibility, as such variances could be issued at any time after the entry into force of the regulations and could establish conditions for individual situations. Because such variances would only be issued to specific exporters or importers based on environmental considerations, monitoring compliance with the modified controls would be significantly easier than with a regulatory exemption. This approach would require a highly transparent process to allow stakeholder input as an alternative to regulatory consultations. This approach requires building confidence with stakeholders that it will provide the necessary flexibility while ensuring environmental protection.
Environment Canada is proposing the second approach whereby the regulations will include the full scope of controls as outlined in previous sections while using the PELES authority to provide variances for hazardous recyclable materials which represent a low risk of harm to the environment and human health, if managed in an environmentally sound manner.
Such PELES applications will be assessed on their merits. Applicants may wish to demonstrate that the proposed variance would meet environmental objective beyond the basic requirement of the proposed regulations for all shipments. This model is being examined as a means to promote extended producer responsibility. Both international environmental and trade obligations must be considered in issuing such variances.
Further discussion of this approach and specific examples of its use will be required prior to entry into force of the new regulations.
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