4. Environmentally Sound Management

Section 185(2) of CEPA 1999 provides that:

The objective of managing waste and material in manner that will protect the environment and human health against adverse effects is known as environmentally sound management, or ESM. Domestically, Environment Canada has been working with the provinces and territories through the CCME to improve existing technical guidelines for the management of hazardous waste and hazardous recyclable materials, with a view to strengthen ESM nationally for domestic and transboundary movements. Internationally, Canada is signatory to various agreements that call for the ESM of hazardous wastes and recyclable materials, including the Basel Convention, the OECD Decision and the Canada-US Agreement.

It is proposed that the new regulation prescribe ESM framework and provide a mechanism for ensuring that applicants meet relevant ESM requirements prior to issuance of import or export permits. Essentially, it is proposed that the new regulation require applicants to self-certify that each facility that will be involved with the waste or recyclable material:

It is proposed that Environmentally Sound Management within the EIHWR consist of three main elements:

The receiving facility must have an environmental management system EMS in place that meets the core performance elements to be able to assess and monitor that the facility is operating in an environmentally sound manner. The regulations will not prescribe a particular EMS model. Instead, they will require that the EMS address each of the core performance elements, and a guidance manual referenced in the regulations will describe desired features. This should enable facilities to use or build on an existing EMS and existing federal/provincial/aboriginal government/municipal standards, rather than implement a new system.

Environment Canada proposes to adopt the core performance elements from the ongoing OECD work on ESM for recyclable materials. These core performance elements, which will be applied to recycling and disposal, comprise nine features.

Environment Canada plans to develop a guidance document to describe specific enforceable benchmarks as well as to describe best practices taking into account existing provincial/territorial regulations. This approach will allow Environment Canada, following appropriate consultations, to modify the benchmarks and guidance as work in this area evolves domestically and internationally without having to go through the complete regulatory amendment process. There will be a further opportunity for stakeholders to review this guidance manual prior to the implementation of the amended regulations.

The new regulations will include an Annex that will list relevant technical guidelines addressing various wastes stream as well as various disposal and recycling methods that importers and exporters must consider. This Annex will be divided into two parts. The first will include domestic guidelines such as current CCME technical guidelines, Canada-Wide Standards and any applicable substance-specific guidelines developed under CEPA 1999. The second part will include international guidelines, such as OECD and Basel Guidelines. As new guidelines are created they will be added to the Annex through a minor regulatory amendment process.

Under Section 185(2), the Minister's authority to determine ESM is linked to the notification process for proposed exports and imports.

Given the large number of often similar notices received from various importers and exporters every year, it will be important to ensure that the ESM mechanism does not unduly slow down the notice review process.

It is proposed that the regulations require applicants for a permit to import or export to submit a self-certified declaration that each receiving facility that will be involved with the waste or recyclable material will manage the waste or material in manner that will protect the environment and human health against adverse effects because it:

The Minister will consider the information and could request additional information or even an audit of the validity of the declaration. Failure to provide such information could result in the Minister refusing to issue an export or import permit. In addition, filing a false declaration may be subject to enforcement action under CEPA 1999.

From a practical perspective, such ESM declarations could be prepared in advance of any notification to cover all of the activities of the facility. This would give Environment Canada time to consider the information and thereby expedite the review at the time of notification.

However, a certification of the validity of the declaration to the particular activities and wastes would also be required at the time of notification to ensure that the general declaration fits the specific case.

This self-certification process will occur in advance of the shipment, and will apply to all relevant facilities, including interim storage and transfer facilities as well as the final destination for the hazardous waste or recyclable material. Environment Canada is also considering requiring that the certificate of disposal/recycling (which is already required under the current regulations) certify that the waste/recyclable material was, in fact, managed in an environmentally sound manner.

8 These core performance elements are based on OECD work. Having and EMS is one of the OECD core performance elements. However, for the purposes of this paper, it is listed separately to highlight the fact that an EMS is a tool to monitor compliance with the other core performance elements.

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